Babylonian Talmud: Tractate Niddah

Folio 44a

GEMARA. Whence is this ruling³  deduced? — [From the following]. For our Rabbis taught: From the term woman⁴  I would only know that the laws⁵  are applicable to a grown-up woman, whence, however, the inference that a girl one day old is also subject to the uncleanness of menstruation? Since it was explicitly stated, And a woman.⁶

ONE WHO IS TEN DAYS OLD IS SUBJECT TO THE UNCLEANNESS OF ZIBAH. Whence is this ruling deduced? [From the following]. For our Rabbis taught: From the term woman⁷  I would only know that the laws are applicable to a grown-up woman, whence, however, the inference that a girl who is ten days old is also subject to the uncleanness of zibah? Since it was explicitly stated, And a woman.⁸

A BOY ONE DAY OLD etc. Whence is this ruling deduced? — [From the following Scriptural text]. For the Rabbis taught: When any man,⁹  what was the object of stating, 'When any man'?¹⁰  To include a boy one day old in the restrictions of the uncleanness of zibah; so R. Judah. R. Ishmael son of R. Johanan b. Beroka said, This deduction is not necessary, for surely it is stated in Scripture, And of them that have an issue, whether it be a man or a woman;¹¹  'whether it be a man' means one of any age, whether adult or minor, 'or a woman means one of any age, whether an adult or minor. But if so¹²  what need was there to state, 'When any man'?¹³  The Torah employed ordinary phraseology.¹⁴

[IS SUBJECT TO …] THE UNCLEANNESS OF LEPROSY, since it is written, When a man shall have in the skin of his flesh,¹⁵  implying a man of any age.

[IS SUBJECT TO …] THAT OF CORPSE-UNCLEANNESS, because it is written, And upon the persons that were there,¹⁶  implying a person of any age.

HE SUBJECTS [HIS DECEASED BROTHER'S WIDOW] TO THE DUTY OF LEVIRATE MARRIAGE, for it is written, If brethren dwell together,¹⁷  implying brothers who are contemporaries.¹⁸

HE EXEMPTS [HIS MOTHER] FROM THE LEVIRATE MARRIAGE, for the All Merciful has said, And have no child,¹⁷  but this man has one.

HE ENABLES HER TO EAT TERUMAH, for it is written, And such as are born in his house, they may eat¹⁹  of his bread,²⁰  read it as, 'Shall cause to eat²¹  of his bread'.

AND HE ALSO CAUSES HER TO BE DISQUALIFIED FROM EATING TERUMAH. For the All Merciful has said, And have no child,²²  but she has one. But what was the point of speaking of a 'child' seeing that the same applies even to an embryo, for it is written,²³  As in her youth,²²  which excludes²⁴  one who is pregnant?²⁵  Both texts were required. For if the All Merciful had only written, 'And have no child' [it might have been presumed that the law²⁶  applied to that case] because originally there was but one body and now there are two bodies,²⁷  but that in this case,²⁸  where there was originally one body and now also there is only one body, it may be held that the woman may eat terumah, hence the All Merciful has written, 'As in her youth'.²⁹  And if the All Merciful has only written, 'As in her youth' [it might have been presumed that the law³⁰  applied to that case alone] since originally the woman's body was empty and now it is a full one, but that in this case,³¹  where her body was originally empty and is now also empty, the woman may well eat terumah. Hence the necessity for both texts. Now, the Scriptural texts have been well explained, but as regards our Mishnah, why just A BOY ONE DAY OLD, seeing³²  that even an embryo also disqualifies its mother? — R. Shesheth replied: We are here dealing with the case of a priest who had two wives, one who had previously been a divorced woman³³  and the other was not a divorced woman,³⁴  and he had sons from the latter³⁵  and one son from the former,³⁶  so that the latter³⁷  causes the slaves of his father³⁸  to be disqualified from eating terumah;³⁹  thus indicating that the law is contrary to the view⁴⁰  of R. Jose. He having laid down that an embryo⁴¹  also causes disqualification we were informed here that only A BOY ONE DAY OLD causes disqualification but not an embryo.⁴²

HE INHERITS AND TRANSMITS. From whom does he INHERIT? Obviously from his father; and to whom does he TRANSMIT? Obviously to his paternal brothers;⁴³  but could not these if they wished inherit from their father and, if they preferred, inherit from him?⁴⁴  — R. Shesheth replied: The meaning is, He⁴⁵  inherits the estate of his mother to transmit it⁴⁶  to his paternal brothers;⁴⁷  hence only then when he is ONE DAY OLD but not when he is an embryo. What is the reason? — Because it⁴⁸  dies first,⁴⁹  and no son may inherit from his mother

1. This is explained in the Gemara.
2. Lit., 'bridegroom'.
3. That A GIRL ONE DAY OLD etc.
4. Lev. XV, 19, which deals with the laws of the menstruant.
5. Cf. prev. n.
6. Lev. XV, 19. E.V. and if a woman.
7. Cf. prev. n. but two. The exposition now is based on what follows in the Scriptural text: Her issue … be blood.
8. Cf. prev. two notes.
9. Lev. XV, 2. Lit. 'a man, a man'.
10. Sc. it would have sufficed if one 'man' (cf. prev. n.) had been omitted, the rendering being, 'when a man'.
11. Lev. XV, 33.
12. That the law has been enunciated in Lev. XV, 33.
13. Lev. XV, 2. Lit., 'a man, a man'.
14. Lit., 'spoke in the language of men', who are in the habit of repeating their words. No inference, therefore, may be drawn from the repetition of 'a man'.
15. Lev. XIII, 2.
16. Num. XIX, 18, in the context dealing with corpse-uncleanness.
17. Deut. XXV, 5, in the context of the law of levirate marriage and halizah.
18. Lit., 'who had one (and the same) sitting in the world'.
19. [H], yokelu (kal).
20. Lev. XXII, 11.
21. [H], ya'akilu (hif.).
22. Lev. XXII, 13.
23. In the same context.
24. From the privilege of eating terumah.
25. Sc. if an embryo causes its mother to be disqualified from eating terumah it is self-evident that a child does it, what need then was there for the text, 'and have no child'?
26. Of disqualification (cf. p. 304, n. 14).
27. Mother and born child.
28. Lit., 'here', that of a pregnant woman.
29. To indicate that even a pregnant woman is disqualified.
30. Of disqualification (cf. supra p. 304, n. 14).
31. Where the child was already born.
32. As has just been shown.
33. Whom a priest is forbidden to marry and whose children from a priestly marriage are disqualified priests and are themselves forbidden to eat terumah and, of course, have no right to confer the privilege of eating it upon their slaves.
34. And whose sons from her marriage with the priest are qualified priests who also confer upon their slaves the right of eating terumah.
35. Cf. prev. n.
36. Cf. supra n. 8.
37. After the death of his father, the priest.
38. Whom he and his brothers jointly inherit from their deceased father.
39. On account of his share in them; it being impossible to distinguish which of the slaves are his and which are his brothers'.
40. Lit., 'to bring out'.
41. From a forbidden marriage (cf. supra n. 8).
42. The disqualification spoken of in our Mishnah thus referring to the slaves and not, as has previously been assumed, to the child's mother, the difficulty raised supra is now solved.
43. Since only paternal relatives are entitled to inherit one's estate.
44. Of course they could, since the child's estate would in any case revert on his death to his father from whom they would inherit it. What meaning then could be assigned to the law that he TRANSMITS?
45. A BOY ONE DAY OLD.
46. When he dies.
47. Who were born from the same father but not from the same mother.
48. The embryo, when its mother dies.
49. Sc. before its mother.

Mar son of R. Joseph citing Raba explained: This⁵  means to say that he causes a diminution in the portion of the birthright.⁶

Mar son of R. Joseph citing Raba further ruled: A son born after the death of his father causes no diminution in the portion of the birthright.⁷  What is the reason?⁸  It is required that They shall have born to him.⁹  Thus¹⁰  it was taught at Sura; but at Pumbeditha it was taught as follows: Mar son of R. Joseph citing Raba ruled, A firstborn son that was born after the death of his father¹¹  does not receive a double portion. What is the reason? It is necessary that He shall acknowledge,¹²  and ['he',] surely, is not [there to acknowledge]. And the law is in agreement with all those versions which Mar son of R. Joseph cited in the name of Raba.

HE WHO KILLS HIM IS GUILTY OF MURDER, since it is written, And he that smiteth any man mortally,¹³  implying, whatever the age.¹⁴

AND HE COUNTS TO HIS FATHER, TO HIS MOTHER AND TO ALL HIS RELATIVES AS A FULLY GROWN MAN, In respect of what law? — R. Papa replied: In respect of that of mourning.

In agreement with whose view [is our Mishnah]?¹⁵  It cannot be, can it, in agreement with¹⁶  R. Simeon b. Gamaliel who ruled: Any human¹⁷  child¹⁸  that survived for thirty days cannot be, regarded as a miscarriage,¹⁹  from which it follows that if he had not lived so long he would have been a doubtful case?²⁰  — Here²¹  we are dealing with the case of a child concerning whom it is established that the months of his pregnancy were duly fulfilled.²²

MISHNAH. A GIRL OF THE AGE OF THREE YEARS AND ONE DAY MAY BE BETROTHED²³  BY INTERCOURSE; IF THE YABAM²⁴  HAD INTERCOURSE WITH HER, HE ACQUIRES HER THEREBY;²⁵  THE GUILT²⁶  OF ADULTERY²⁷  MAY BE INCURRED THROUGH HER,²⁸  AND SHE²⁹  CAUSES UNCLEANNESS TO THE MAN WHO HAD INTERCOURSE WITH HER SO THAT HE IN TURN CONVEYS UNCLEANNESS TO THAT UPON WHICH HE LIES,³⁰  AS TO A GARMENT WHICH HAS LAIN UPON [A ZAB].³¹  IF SHE WAS MARRIED TO A PRIEST, SHE MAY EAT TERUMAH. IF ANY OF THE INELIGIBLE PERSONS³²  COHABITED WITH HER HE DISQUALIFIES HER FROM THE PRIESTHOOD.³³  IF ANY OF THE FORBIDDEN DEGREES ENUMERATED IN THE TORAH COHABITED WITH HER HE IS TO BE EXECUTED ON HER ACCOUNT, BUT SHE³⁴  IS EXEMPT [FROM THE PENALTY]. IF ONE WAS YOUNGER THAN THIS AGE INTERCOURSE WITH HER IS LIKE PUTTING A FINGER IN THE EYE.

GEMARA. Our Rabbis taught: A girl of the age of three years may be betrothed by intercourse; so R. Meir. But the Sages say: Only one who is three years and one day old. What is the practical difference between them? — The school of R Jannai replied: The practical difference between them is the day preceding the first day of the fourth year.³⁵  R. Johanan, however, replied: The practical difference between them is the rule that thirty days of a year are counted as the full year.³⁶

An objection was raised: A girl of the age of three years and even one of the age of two years and one day may be betrothed by intercourse; so R. Meir. But the Sages say: Only one who is three years and one day old.

1. Sc. after his death.
2. That an embryo dies before its mother.
3. After its mother was dead.
4. But are no signs of life.
5. The law that A BOY ONE DAY OLD… TRANSMITS.
6. If, for instance, there were two brothers other than the boy in question, and one of them was the firstborn, the estate is divided, not into three portions (two for the ordinary portions of the two brothers and one for the birthright), but into four portions. Each brother, including the young child, receives one such portion and the firstborn receives the additional fourth portion as his birthright. The firstborn thus receives, as the portion of his birthright, a quarter of the estate, and not (as would have been the case if the child were excluded) a third.
7. Though he receives his due portion in the estate. In the case mentioned as an instance in the prev. n. the estate would first be divided into three portions (as if the embryo did not exist) and the firstborn would receive, as his birthright, one of these, which represents a third of the estate. The remaining two thirds would then be divided into three equal shares, each of the three brothers receiving one, I.e., two ninths of the estate. The full portion of the firstborn would accordingly amount to (1/3 + 2/9 = 5/9) five ninths of the estate, while, where the child was one day old, the firstborn's full portion would only amount to half the estate, i.e., (5/9 — 1/2 = 1/18) one eighteenth less.
8. That a born child does, and an embryo does not cause a diminution in the portion of the birthright.
9. Deut. XXI, 15, emphasis on 'him', sc. while the father is alive. An embryo cannot come within the category of 'have born'.
10. The version just given.
11. In the case, for instance, where his widow bore twins, or where he was survived by two widows and both bore sons and one of these was the firstborn.
12. Deut. XXI, 17.
13. Lev. XXIV, 17.
14. Lit., 'from any place'.
15. Which, treating an infant one day old in the various laws embodied in it as a grown-up man, obviously assumes him to be viable.
16. Lit., 'that not as'.
17. Opp. to cattle where the period is only eight days.
18. Of doubtful premature birth.
19. Thirty days being a period that suffices to establish the viability of a child.
20. Now since according to our Mishnah a child may be regarded as viable on the first day of its life (cf. p. 307, n. 9) its view must differ from that of R. Simeon b. Gamaliel, must it not?
21. In our Mishnah.
22. Lit., 'whose months have ended'. The child's viability is beyond question even according to R. Simeon b. Gamaliel who (cf. p. 307, n. 12) referred only to a doubtful premature birth.
23. Subject to her father's approval.
24. The brother of her deceased childless husband, whose duty it is to contract the levirate marriage with her.
25. In consequence of which he gains possession of his deceased brother's estate, is entitled if she dies to inherit her own estate and even if he is a priest, he may defile himself to her as to a legally married wife.
26. Punishable by death.
27. Lit., 'on account of the wife of a man'.
28. If, for instance, her father betrothed her to one man and another cohabited with her.
29. When a menstruant.
30. Lit., 'lower couch'.
31. Lit., 'like the upper'.
32. A bastard or a slave, for instance.
33. Sc. if she was the daughter of a priest she loses the privilege of eating terumah.
34. Being a minor.
35. Lit., 'the eve of the beginning of the year'. According to R. Meir she attains the prescribed age on that day while according to the Rabbis she does not attain it until the following day.
36. According to R. Meir the prescribed age is attained as soon as thirty days of the third year have passed, while according to the Rabbis it is not attained until the first day of the fourth year.