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Babylonian Talmud: Tractate Yebamoth
Our Mishnah1 cannot be maintained in the presence of the following Baraitha. For it was taught: R. Jose stated, 'The hermaphrodite is a creature sui generis, and the Sages did not determine whether he is a male or a female'.2 On the contrary; the Baraitha2 cannot be maintained in the face of our Mishnah!3 — As R. Jose left his colleague4 it may be inferred that he changed his opinion.5
Samuel, however, said: The Baraitha2 cannot be maintained in the face of our Mishnah.3 On the contrary; our Mishnah3 cannot be maintained in the face of the Baraitha,2 since Samuel was heard to take note of an individual opinion!6 — This7 applies only to a case where the Mishnah is not thereby uprooted; when the Mishnah, however, is thereby uprooted it need not be taken into consideration.
At the school of Rab it was stated in the name of Rab that the halachah is in agreement with R. Jose in respect of the hermaphrodite and grafting; and Samuel stated: In respect of protracted labour and forfeiture.
As to the 'hermaphrodite', there is the ruling just mentioned.8 'Grafting'? — As we have learned: There must be no planting, no sinking9 and no grafting on the eve of the Sabbatical Year10 within thirty days before the new year; and if one planted or sank or grafted, the tree must be uprooted.11 R. Judah said: Any grafting12 which takes no root within three days will never take root. R. Jose and R. Simeon stated: [Within] two weeks.13 And, [in reference to this.] R. Nahman stated in the name of Rabbah b. Abbuha that according to him who stated, 'thirty days', thirty and thirty are required;' according to him who stated 'three days', three and thirty are required;14 and according to him who stated 'two weeks', two weeks and thirty days are required.14
'And Samuel stated: In respect of protracted labour and forfeiture'. 'Protracted labour'? — As we learned: How long does the period of protracted labour15 continue? R. Meir said: Forty or fifty days.16 R. Judah said: Her [ninth] month is sufficient.17 R. Jose and R. Simeon said: Protracted labour cannot extend beyond two weeks.18 'Forfeiture'? As we have learned: If one causes his vine to overhang19 above the crops of his neighbour, behold he causes thereby their forfeiture,20 and he is liable to make compensation; so R. Meir. R. Jose and R. Simeon said:
No man can impose a prohibition upon that which is not his.1
What would Samuel have said in respect of grafting?3 — Come and hear what Samuel said to R. Anan: Teach in accordance with the view of him who stated 'three and thirty'.
What is Rab's Opinion in respect of forfeiture?6 R. Joseph replied. Come and hear what R. Huna stated in the name of Rab: The halachah is not in agreement with R. Jose.
Said Abaye to him:8 What reason do you see for relying upon this statement?9 Rely rather on that which R. Adda made in the name of Rab: The halachah is in agreement with R. Jose! — Who is it [that is referred to by the phrase] 'At the school of Rab it was stated'?10 R. Huna [of course];11 and R. Huna it was who stated that the halachah is not in agreement [with R. Jose].12
R. JUDAH STATED: A TUMTUM etc. R. Ammi remarked: What would R. Judah13 have done with a case like that of the tumtum of Bairi,14 who, after having been placed upon the operating table15 and operated upon, begat seven children!16 And R Judah?17 — He could tell you:18 An enquiry should be made as to the origin of his children.
It was taught: R. Jose son of. R. Judah stated that a tumtum must not participate in halizah, since it is possible that on being operated upon he may be found to be a congenital saris.19 Is everyone then,20 who is operated upon a male! — It is this that he meant: It is possible that on being operated upon he may be found to be a female; and were he found to be a male, it is even then possible that he might be found to be a congenital saris. What is the practical difference between them?21 — Raba replied: The practical difference between them is the question of disqualification22 where other brothers are in existence,23 and that of halizah where no other brothers exist.24
R. Samuel son of R. Judah said in the name of R. Abba, the brother of R. Judah b. Zabdi, in the name of Rab Judah in the name of Rab: In respect of the hermaphrodite the penalty of stoning is incurred through either of his organs.
An objection was raised: R. Eliezer stated, 'In respect of the hermaphrodite the penalty of stoning is incurred as in the case of a male. This, however, applies only to his male organ; but in respect of his female organ no penalty is incurred'!25 — He26 holds the same opinion as the following Tanna. For it was taught: R. Simai stated that in respect of the hermaphrodite the penalty of stoning is incurred through either of his organs. What is R. Simai's reason? — Raba replied: Bar Hamduri has explained it to me as follows: And thou shalt not lie with a male, as well as with womankind;27 what male is it that is capable of two manners of lying?28 Obviously29 the hermaphrodite. And the Rabbis? — Though he is capable of two manners of lying it is nevertheless written in Scripture. With a male.30 Whence, however, do the Rabbis31 derive the law concerning an ordinary male? — From And.32 Whence33 the prohibition in respect of unnatural intercourse with a woman? — From Woman.34
R. Shezbi stated in the name of R. Hisda: It is not in all respects that R. Eliezer maintains that the hermaphrodite is a proper male. Since, were you to say so, [such an animal]35 would be fit for consecration.36 And whence is it derived that it37 may not be consecrated? — From what the Rabbis taught: [A bird] that was covered,38 set aside [for idolatrous purposes], or worshipped, that was the hire of a harlot39 or the price of a dog,39 a tumtum or hermaphrodite, causes the defilement of one's clothes40 by [contact with one's] oesophagus.41 R. Eliezer said: [A bird that was] a tumtum or hermaphrodite does not impart the defilement of clothes through contact with one's oesophagus; for R. Eliezer maintained that wherever male and female were mentioned,42 the tumtum and hermaphrodite are to be excluded; but [in the case of the sacrifice of a] bird, since in respect of it no mention was made of male or female, the tumtum and hermaphrodite are not to be excluded.43
R. Nahman b. Isaac said: We also learned [a similar Baraitha]: R. Eliezer stated:
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