Sanhedrin 69aסנהדרין ס״ט א
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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69aס״ט א

ואמר רחמנא איש איש אתה צריך לחזור עליו אם יש לו גואלין ואם לאו קטן אי אתה צריך לחזור עליו בידוע שאין לו גואלין

And the Merciful One states: “But if the man has no relative,” teaching that it is only in the case of a convert who is a man that you must go around seeking whether or not he has relatives, i.e., children who were born to him after his conversion. But in the case of a convert who is a minor, you do not have to go around searching for relatives; it is known that he has no relative, since a minor cannot father a child.

איתיביה אביי איש אין לי אלא איש בן ט' שנים ויום אחד שראוי לביאה מניין ת"ל ואיש

Abaye raised an objection to Rabba from a baraita discussing a designated maidservant, about whom the verse states: “And if a man lies carnally with a woman who is a maidservant designated to a man, and not fully redeemed, nor freedom given her, inquiry shall be made; they shall not be put to death, because she was not free” (Leviticus 19:20). From the word “man,” I have derived only that this halakha applies to an adult man. But as for a minor aged nine years and one day, who is fit for engaging in intercourse, from where is it derived that he too is subject to this halakha? The verse states: “And if a man.” The extraneous letter vav, meaning “and,” serves to include a minor who is nine years old, as already at that age he can perform complete intercourse.

א"ל יש לו ואינו מוליד כתבואה שלא הביאה שליש דמי

Rabba said to Abaye: There is no proof from here, as even though a nine-year-old boy has sperm, he cannot father a child. His sperm is like the seed of grain that was cut even though it had not yet reached one-third of its growth. Such seed, even if planted, will not grow.

דבי חזקיה תנא (שמות כא, יד) וכי יזיד איש איש מזיד ומזריע ואין קטן מזיד ומזריע א"ל רב מרדכי לרב אשי מאי משמע דהאי מזיד לישנא דבשולי הוא דכתיב (בראשית כה, כט) ויזד יעקב נזיד

A Sage of the school of Ḥizkiyya taught: The verse states: “But if a man comes intentionally [yazid] against his neighbor, to slay him with guile, you shall take him from My altar, that he may die” (Exodus 21:14). The use of the term yazid in this context and its juxtaposition to the word “man” teaches that a man can heat [mezid] himself up and produce viable sperm, but a minor cannot heat himself up and produce viable sperm. Therefore, even though a minor can engage in full intercourse with a woman, he cannot father a child. Rav Mordekhai said to Rav Ashi: From where may it be inferred that this word mezid is a term meaning heating up? As it is written in a different verse: “And Jacob cooked [vayyazed] pottage” (Genesis 25:29).

והא תנא דבי ר' ישמעאל בן ולא אב

The Gemara asks: But didn’t the school of Rabbi Yishmael teach the following baraita concerning a stubborn and rebellious son: The verse that states: “If a man has a stubborn and rebellious son,” teaches that a son can become a stubborn and rebellious son, but not a father, so that one who has a child cannot be sentenced as a stubborn and rebellious son.

היכי דמי אילימא דאיעבר בתר דאייתי שתי שערות ואוליד מקמי דלקיף זקן מי איכא שהות כולי האי והא א"ר כרוספדאי כל ימיו של בן סורר ומורה אינו אלא ג' חדשים בלבד אלא לאו דאיעבר מקמי דלייתי שתי שערות ואוליד מקמיה דלקיף זקן וש"מ קטן מוליד

The Gemara asks: What are the circumstances? If we say that his wife conceived after he grew two pubic hairs and the baby was born before he grew a beard around his genitals, is there such a long interval between these two times to allow for carrying the child to term? But doesn’t Rabbi Kruspedai say: The entire time during which it is possible to judge and sentence a stubborn and rebellious son is only three months, the time between the appearance of two pubic hairs and the growth of a beard around the genitals? Consequently, it is impossible for a child to be born to the stubborn and rebellious son during this period. Rather, is it not that his wife conceived before he grew two pubic hairs, and the baby was born before he grew a beard around his genitals? And you can learn from it that a minor can, in fact, father a child.

לא לעולם דאיעבר בתר דאייתי שתי שערות ואוליד בתר דאקיף זקן ודקא קשיא דרבי כרוספדאי כי אתא רב דימי אמר אמרי במערבא בן ולא הראוי לקרותו אב

The Gemara rejects this reasoning: No, actually, you can explain that his wife conceived only after he grew two pubic hairs, and the baby was born after he grew a beard around his genitals. And as for that which is difficult for you based on the statement of Rabbi Kruspedai that the halakha governing a stubborn and rebellious son applies for only three months, it can be explained as follows: When Rav Dimi came from Eretz Yisrael to Babylonia, he said that they say in the West, Eretz Yisrael, that the term “son” teaches that only a son can become a stubborn and rebellious son, but not one who is fit to be called a father. That is to say, the verse does not exclude someone whose child was born during this period, but rather one whose wife conceived during this time, so that he is fit to be called a father.

גופא אמר ר' כרוספדאי א"ר שבתי כל ימיו של בן סורר ומורה אינן אלא ג' חדשים בלבד והאנן תנן משיביא שתי שערות ועד שיקיף זקן הקיף זקן אע"ג דלא מלו ג' חדשים מלו ג' חדשים אע"ג דלא הקיף

§ Returning to the matter itself: Rabbi Kruspedai says that Rabbi Shabbtai says: The entire time during which it is possible to judge and sentence a stubborn and rebellious son is only three months. The Gemara asks: But didn’t we learn in the mishna that a boy can be judged as a stubborn and rebellious son from when he grows two pubic hairs until he grows a beard around his genitals? This seems to indicate that his liability depends on his physical maturity, and not on any specific time period. The Gemara answers: If he grew a beard around his genitals, then even if three months have not passed, he can no longer become liable as a stubborn and rebellious son. And if three months passed, then even if he has not grown a beard around his genitals, he is similarly exempt.

יתיב רבי יעקב מנהר פקוד קמיה דרבינא ויתיב וקאמר משמיה דרב הונא בריה דרב יהושע ש"מ מדרבי כרוספדאי א"ר שבתי יולדת לשבעה אין עוברה ניכר לשליש ימיה

Rabbi Ya’akov from Nehar Pekod sat before Ravina and sat and said in the name of Rav Huna, son of Rav Yehoshua: Learn from the statement that Rabbi Kruspedai says that Rabbi Shabbtai says that when a woman gives birth at seven months, her fetus cannot yet be discerned after one-third of her days of pregnancy. In a nine-month pregnancy, the fetus can be discerned after three months, which is one-third of the pregnancy. In the case of a pregnancy that lasts seven months, the fetus cannot be discerned at the end of one-third of the pregnancy, i.e., after two and one-third months, but after three months, as in a standard nine-month pregnancy.

דאי ס"ד עוברה ניכר לשליש ימיה למה לי ג' בתרי ותילתא סגיא

Rabbi Ya’akov explains the inference: As if it enters your mind that when a woman gives birth at seven months, her fetus can already be discerned after one-third of her days of pregnancy, i.e., after two and one-third months, why do I need three months from the time the boy reaches adulthood until the end of the time that he can become liable as a stubborn and rebellious son? A period of two and one-third months should suffice. If he engaged in intercourse with a woman immediately upon reaching adulthood and the intercourse resulted in a seven-month pregnancy, the fetus would be able to be discerned after two and one-third months, and he would be fit to be called a father already from then. From the statement of Rabbi Kruspedai, citing Rabbi Shabbtai, it is clear that the earliest time the fetus can be discerned is after three months of the pregnancy have passed.

א"ל לעולם אימא לך עוברה ניכר לשליש ימיה זיל בתר רובא

Ravina said to Rabbi Ya’akov: Actually, I could say to you that even when a woman gives birth at seven months, her fetus can already be discerned after one-third of her days of pregnancy. But the halakha with regard to a stubborn and rebellious son was not adjusted accordingly because of the principle that one follows the majority. Most women give birth at nine months, and their fetuses are discernible only after three months. Therefore, the fact that one would be fit to be called a father in the case of a seven-month pregnancy is disregarded.

אמרוה קמיה דרב הונא בריה דרב יהושע אמר ליה ובדיני נפשות מי אזלינן בתר רובא התורה אמרה (במדבר לה, כד) ושפטו העדה והצילו העדה ואת אמרת זיל בתר רובא

The Sages stated this answer before Rav Huna, son of Rav Yehoshua, whereupon he said to them: But do we blindly follow the majority in cases of capital law and not judge each case on its own merits? Doesn’t the Torah state: “And the congregation shall judge…and the congregation shall deliver” (Numbers 35:24–25), from which it is derived that the court must make every effort to find exculpatory arguments in support of the accused; and yet you say that one follows the majority? If it is possible that already after two and one-third months the stubborn and rebellious son will be fit to be called a father, from that time on he should be exempt from punishment.

אהדרוה קמיה דרבינא א"ל ובדיני נפשות לא אזלינן בתר רובא והתנן אחד אומר בשנים בחדש ואחד אומר בג' עדותן קיימת שזה יודע בעיבורו של חדש וזה אינו יודע

The Sages then brought Rav Huna’s analysis back to Ravina and presented it before him. Ravina said to them: And do we not follow the majority in cases of capital law? But didn’t we learn in the mishna (Sanhedrin 40a): If one witness says that the event occurred on the second of the month, and one witness says that the event occurred on the third of the month, this is not regarded as a contradiction and their testimony stands, since it is possible to say that this witness knows of the addition of a day to the previous month, and according to his tally the event occurred on the second of the month, and that witness does not know of the addition of a day to the previous month, and according to his tally the event occurred on the third of the month.

ואי ס"ד לא אמרינן זיל בתר רובא נימא הני דוקא קא מסהדי ואכחושי הוא דקא מכחשי אהדדי אלא לאו משום דאמרינן זיל בתר רובא ורובא דאינשי עבדי דטעו בעיבורא דירחא

And if it enters your mind that we do not say that one follows the majority in cases of capital law, let us then say that these witnesses are testifying with precision, and that they contradict each other, and therefore the accused should be acquitted. Rather, is it not because we say that one follows the majority, and the majority of people are apt to err with regard to the addition of an extra day to the month?

אמר רבי ירמיה מדפתי אף אנן נמי תנינא בת שלש שנים ויום אחד מתקדשת בביאה ואם בא עליה יבם קנאה וחייבין עליה משום אשת איש

Rabbi Yirmeya of Difti says: We learn in another mishna (Nidda 44b) as well that one follows the majority even in cases of capital law: A girl who is three years and one day old whose father arranged her betrothal can be betrothed with intercourse, as, despite her age, the legal status of intercourse with her is that of full-fledged intercourse. And in a case where the childless husband of a girl three years and one day old dies, if his brother, the yavam, engages in intercourse with her, he acquires her as his wife. And if a girl of that age is married, a man other than her husband is liable for engaging in intercourse with her due to violation of the prohibition against adultery, as despite her age she is legally considered to be a married woman.

ומטמא את בועלה לטמא משכב התחתון כעליון נישאת לכהן אוכלת בתרומה בא עליה אחד מן הפסולין פסלה מן הכהונה ואם בא עליה אחד מכל העריות האמורות בתורה מומתין עליה והיא פטורה

The mishna continues: And if she is impure due to menstruation, she transmits impurity to one who engages in intercourse with her, who then renders all the items designated for lying beneath him impure like the items designated for lying above him. If she marries a priest, she may partake of teruma like any other wife of a priest. If she is unmarried and one of the men who is unfit for the priesthood, e.g., a mamzer or ḥalal, engaged in intercourse with her, he has disqualified her from marrying into the priesthood, and if she is the daughter of a priest, she is disqualified from partaking of teruma. And if one of any of those with whom relations are forbidden, which are enumerated in the Torah, engaged in intercourse with her, e.g., her father or father-in-law, the man is executed by the court for engaging in intercourse with her, and she is exempt because she is a minor.