This mishnah contains a discussion about whether or not a eunuch is obligated to perform halitzah for his dead brother’s wife and whether or not halitzah is performed for his wife, should he die without children. Note that this issue is tied to the eunuch’s ability or lack thereof to have children. One who cannot have children would be less likely to be subject to the laws of halitzah and yibbum whose purpose is to supply children for the dead brother.
אָמַר רַבִּי יְהוֹשֻׁעַ, שָׁמַעְתִּי שֶׁהַסָּרִיס חוֹלֵץ, וְחוֹלְצִין לְאִשְׁתּוֹ, וְהַסָּרִיס לֹא חוֹלֵץ וְלֹא חוֹלְצִין לְאִשְׁתּוֹ, וְאֵין לִי לְפָרֵשׁ. אָמַר רַבִּי עֲקִיבָא, אֲנִי אֲפָרֵשׁ. סְרִיס אָדָם חוֹלֵץ וְחוֹלְצִין לְאִשְׁתּוֹ, מִפְּנֵי שֶׁהָיְתָה לוֹ שְׁעַת הַכֹּשֶׁר. סְרִיס חַמָּה לֹא חוֹלֵץ וְלֹא חוֹלְצִין לְאִשְׁתּוֹ, מִפְּנֵי שֶׁלֹּא הָיְתָה לוֹ שְׁעַת הַכֹּשֶׁר. רַבִּי אֱלִיעֶזֶר אוֹמֵר, לֹא כִי, אֶלָּא סְרִיס חַמָּה חוֹלֵץ, וְחוֹלְצִין לְאִשְׁתּוֹ, מִפְּנֵי שֶׁיֶּשׁ לוֹ רְפוּאָה. סְרִיס אָדָם לֹא חוֹלֵץ וְלֹא חוֹלְצִין לְאִשְׁתּוֹ, מִפְּנֵי שֶׁאֵין לוֹ רְפוּאָה. הֵעיד רַבִּי יְהוֹשֻׁעַ בֶּן בְּתֵירָא עַל בֶּן מְגוּסַת שֶׁהָיָה בִירוּשָׁלַיִם סְרִיס אָדָם, וְיִבְּמוּ אֶת אִשְׁתּוֹ, לְקַיֵּם דִּבְרֵי רַבִּי עֲקִיבָא:
1. Rabbi Joshua said: I have heard that a eunuch performs halitzah and that halitzah is performed by others for his wife, and also that a eunuch does not perform halitzah and that no halitzah is performed for his wife, and I am unable to explain this.
2. Rabbi Akiva said: I will explain it: a man-made eunuch performs halitzah and halitzah is also performed for his wife, because there was a time when he was fit [to have children]. A eunuch by nature neither performs halitzah nor is halitzah performed for his wife, since there never was a time when he was fit.
3. Rabbi Eliezer said: Not so! Rather a eunuch by nature performs halitzah and halitzah is performed for his wife, because he may be cured. A man-made eunuch neither performs halitzah nor is halitzah performed for his wife, since he cannot be cured.
4. Rabbi Joshua ben Baterra testified concerning Ben Megusat, who was a man-made eunuch living in Jerusalem and they performed yibbum for his wife, thus confirming the opinion of Rabbi Akiva.
Section 1: Rabbi Joshua transmits an old halakhah that he has heard, but that he doesn’t know how to explain. In these words we can see how halakhot were often transmitted in pithy, memorable phrases, such that later sages sometimes did not know how to explain them.
Rabbi Joshua has heard that eunuchs are subject to the laws of halitzah and he has also heard the opposite. He does not know if these two halakhot apply to two different types of eunuchs or whether they contradict each other.
Section 2: Rabbi Akiva explains the puzzle brought up by Rabbi Joshua. The eunuch who was castrated by humans performs halitzah for his dead brother’s wife. [He cannot have yibbum, because he is forbidden to marry Israelites, as we learned above.] If he should die without children, halitzah or yibbum is performed for his wife. The reason that he is subject to the laws of yibbum is that he was at one time not a eunuch and he was fit to have children. In contrast, the eunuch who was born a eunuch was never fit to have children, and therefore is not subject to the laws of halitzah. Should he die, his wife is exempt from both halitzah and yibbum. Should his brother die, he does not perform halitzah for his widow.
Section 3: Rabbi Eliezer offers the opposite reading and solution to the tradition transmitted by Rabbi Joshua. The eunuch who is subject to the laws of halitzah and yibbum is one who was born a eunuch, since he could potentially be cured, and then he could have children. A eunuch who was castrated by others cannot be cured (even today this is not a simple procedure). Therefore, he is not subject to the laws of halitzah and yibbum.
Section 4: Rabbi Joshua ben Batera testifies about a man-made eunuch, that they performed yibbum for his wife. This proves what Rabbi Akiva said, that man-made eunuchs are subject to the laws of halitzah and yibbum. Note that what proves that Rabbi Akiva is correct is a precedent, and not any inherent logic to his words.
This mishnah discusses the performance of yibbum or halitzah by a eunuch or by an aylonit, a woman who has not developed signs of sexual maturity, and therefore by definition cannot procreate. Both of these categories are therefore people who cannot procreate. Since they cannot procreate they are excluded from the laws of halitzah and yibbum, as we learned in the previous mishnah.
הַסָּרִיס לֹא חוֹלֵץ, וְלֹא מְיַבֵּם. וְכֵן אַיְלוֹנִית לֹא חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. הַסָּרִיס שֶׁחָלַץ לִיבִמְתּוֹ, לֹא פְסָלָהּ. בְּעָלָהּ פְּסָלָהּ, מִפְּנֵי שֶׁהִיא בְעִילַת זְנוּת. וְכֵן אַיְלוֹנִית שֶׁחָלְצוּ לָהּ אַחִין, לֹא פְסָלוּהָ. בְּעָלוּהָ, פְּסָלוּהָ, מִפְּנֵי שֶׁבְּעִילָתָהּ בְּעִילַת זְנוּת:
1. The eunuch neither performs halitzah nor contracts yibbum.
2. So too a woman who is incapable of procreation neither performs halitzah nor is taken in yibbum.
3. If a eunuch performed halitzah for his yevamah, he does not disqualify her [from subsequently marrying a priest].
a) If he has intercourse with her he disqualifies her, since this is an act of fornication.
4. Similarly where brothers performed halitzah for a woman incapable of procreation, they do not disqualify her [from marrying a priest].
a) If they have intercourse with her they do disqualify her, since this is an act of fornication.
Section 1: We have already seen this halakhah in the previous mishnah. Here it either refers to a man-made eunuch, who according to Rabbi Akiva does not perform halitzah. Alternatively, it refers to all eunuchs and this mishnah contains an opinion that disagrees with both opinions in the previous mishnah.
Section 2: A woman who is physically incapable of procreating is not subject to the laws of halitzah or yibbum. Since the point of yibbum is procreation, those who cannot procreate are exempt.
Section 3: Since a eunuch does not perform halitzah, there is no validity to an act of halitzah that he performs. If he nevertheless does so, he has not thereby disqualified the woman from subsequently marrying a priest. [A halutzah is forbidden to be married by a priest].
However, if he has intercourse with her, as an attempted act of yibbum, he has disqualified her from marrying a priest, because this was forbidden. Since she was not liable for yibbum, she is prohibited to him by the prohibition of being his brother’s wife. [Remember any time yibbum is not necessary, the prohibition of a brother’s wife is effective, even after the brother’s death]. Any woman who has had relations with a man forbidden to her is subsequently prohibited from marrying a priest.
Section 4: This section contains nearly the same laws with regard to the woman who cannot procreate. If one of the brothers performs halitzah he has not disqualified her from marrying a priest. However, if one of them tries to have yibbum with her, she is disqualified, because she was prohibited to him, as his brother’s wife.
This mishnah deals with several categories of people who are of doubtful gender status. A hermaphrodite is a person who has the outer sexual signs of both a male and a female. A tumtum is a person who has no outer sexual signs.
סְרִיס חַמָּה כֹּהֵן שֶׁנָּשָׂא בַת יִשְׂרָאֵל, מַאֲכִילָהּ בַּתְּרוּמָה. רַבִּי יוֹסֵי וְרַבִּי שִׁמְעוֹן אוֹמְרִים, אַנְדְּרוֹגִינוֹס כֹּהֵן שֶׁנָּשָׂא בַת יִשְׂרָאֵל, מַאֲכִילָהּ בַּתְּרוּמָה. רַבִּי יְהוּדָה אוֹמֵר, טֻמְטוּם שֶׁנִּקְרַע וְנִמְצָא זָכָר, לֹא יַחֲלוֹץ, מִפְּנֵי שֶׁהוּא כַסָּרִיס. אַנְדְּרוֹגִינוֹס נוֹשֵׂא, אֲבָל לֹא נִשָּׂא. רַבִּי אֱלִיעֶזֶר אוֹמֵר, אַנְדְּרוֹגִינוֹס חַיָּבִים עָלָיו סְקִילָה כַּזָּכָר:
1. If a priest who was eunuch by nature married the daughter of an Israelite, he confers upon her the right to eat terumah.
2. Rabbi Yose and Rabbi Shimon stated: if a priest who was an hermaphrodite married the daughter of an Israelite, he confers upon her the right to eat terumah.
3. Rabbi Judah stated: if a tumtum was opened up and found to be a male, he may not perform halitzah, because he has the same status as a eunuch.
4. The hermaphrodite may marry [a wife] but may not be married [by a man].
5. Rabbi Eliezer stated: concerning the hermaphrodite, [the one who has relations with him] is liable to be stoned like one [who has relations with] a male.
Section 1: A eunuch by nature is not forbidden from marrying Israelite women (he is not considered to be a “petzua daka,” one whose testes were crushed. Therefore, if he is a priest and he marries the daughter of an Israelite, the marriage is valid and he is allowed to eat terumah.
Section 2: A priest who is a hermaphrodite is allowed to marry the daughter of an Israelite. With regard to marriage, he is treated as if he was fully male. Therefore, if he is a priest, his wife may eat terumah.
Section 3: A tumtum may have been born with his sexual organs covered by a thin sac of skin. Even if they open up this sac and find that he is male, he may not perform halitzah, since his status is like that of a eunuch. Assumedly, the tumtum cannot procreate and therefore is exempt from the laws of halitzah and yibbum.
Section 4: As we learned in section 2, a hermaphrodite is treated like a male. He may marry a woman but may not be married by a man.
Section 5: According to Rabbi Eliezer, if another man has relations with a hermaphrodite, he is liable to be stoned, as are all men who engage in intercourse with other men. This is Rabbi Eliezer’s way of stating that the hermaphrodite is to be treated completely as if he is a male.