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Steinsaltz

It is related that in the days of Rabbi Yehuda HaNasi the Sages sought to permit the Gibeonites and treat them like Jews in all regards, thereby allowing them to enter into the congregation. Rabbi Yehuda HaNasi said to them: Even if we permit our share and say that the court nullifies the Jewish people’s right to enslave the Gibeonites, and so they should be treated like emancipated slaves, who can permit the altar’s share? Do they not belong to the Temple and the altar as well?

The Gemara comments: And Rabbi Yehuda HaNasi disagrees with the teaching of Rabbi Ḥiyya bar Abba. As Rabbi Ḥiyya bar Abba said that Rabbi Yoḥanan said: The share in the enslavement of the Gibeonites that belongs to the congregation of Israel is forbidden forever and can never be permitted. However, with regard to the share belonging to the altar, when the Temple is standing it is forbidden, but when the Temple is not standing it is permitted.

MISHNA: Rabbi Yehoshua said: I heard two rulings from my teachers. One ruling is that a eunuch performs ḥalitza with his yevama, and his brothers perform ḥalitza with his wife, and the other ruling is that a eunuch does not perform ḥalitza with his yevama, and his brothers do not perform ḥalitza with his wife. And I cannot explain these two rulings, as I do not remember the circumstances to which each ruling applies.

Rabbi Akiva said: I will explain. A eunuch caused by man, i.e., one who became emasculated after birth, performs ḥalitza with his yevama and his brothers perform ḥalitza with his wife, because he had an hour of fitness, a time when he was fertile. On the other hand, a eunuch by natural causes, i.e., who was entirely lacking in sexual capacity from birth, does not perform ḥalitza with his yevama and his brothers do not perform ḥalitza with his wife, because he did not have an hour of fitness, as he never had the potential to father children.

Rabbi Eliezer says: No; rather, the opposite is the case: A eunuch by natural causes performs ḥalitza with his yevama and his brothers perform ḥalitza with his wife because he can be cured, whereas a eunuch caused by man does not perform ḥalitza with his yevama and his brothers do not perform ḥalitza with his wife because he cannot be cured.

Rabbi Yehoshua ben Beteira testified about a man named ben Megusat, who lived in Jerusalem and was a eunuch caused by man, that his brothers nevertheless entered into levirate marriage with his wife, in order to fulfill and confirm the statement of Rabbi Akiva.

A sexually underdeveloped man does not perform ḥalitza or enter into levirate marriage with his yevama. And similarly, a sexually underdeveloped woman [aylonit], who is incapable of bearing children, does not perform ḥalitza or enter into levirate marriage with her yavam.

If a sexually underdeveloped man performed ḥalitza with his yevama, he has not thereby disqualified her from marrying into the priesthood, as his ḥalitza is invalid. However, if he had intercourse with her, he has disqualified her. This is because it is considered licentious sexual intercourse, since such intercourse does not fulfill the mitzva of levirate marriage and is therefore categorized as forbidden relations with one’s sister-in-law. And similarly, with regard to a sexually underdeveloped woman, if one of the brothers performed ḥalitza with her he has not thereby disqualified her from marrying into the priesthood. However, if he had intercourse with her, he has disqualified her because the intercourse is considered licentious sexual intercourse.

GEMARA: Now, we learned that Rabbi Akiva said: Those liable for violating a prohibition are like those liable to receive karet with regard to the validity of their marriage and all its ramifications, and those liable to receive karet are not eligible to perform ḥalitza or levirate marriage. A eunuch caused by man has the status of a man with crushed testicles, and is therefore prohibited by a standard negative mitzva from marrying a Jewish woman. If he violated the prohibition and married her, his marriage is invalid according to Rabbi Akiva, just as if he had married a woman who is forbidden to him by a prohibition punishable by karet. Why, then, should his ḥalitza be valid?

Rabbi Ami said: With what are we dealing here? We are dealing with a case where the eunuch’s brother had married a convert, and Rabbi Akiva holds in accordance with the opinion of Rabbi Yosei, who said that the congregation of converts is not called a congregation of the Lord. Consequently, it is permitted even for those for whom it is prohibited to enter into the congregation, e.g., a eunuch, to marry converts.

The Gemara raises a difficulty: If so, the eunuch should also be able to perform levirate marriage with the convert. The Gemara answers: Yes, it is indeed so, but since Rabbi Yehoshua said that a eunuch performs ḥalitza with his yevama, Rabbi Akiva as well said that he performs ḥalitza with her, while in fact he may enter into levirate marriage with her if he so chooses.

The Gemara adds: The language of the mishna is also precise in this regard, as it teaches: Rabbi Yehoshua ben Beteira testified about a man named ben Megusat, who lived in Jerusalem and was a eunuch caused by man, that his brothers entered into levirate marriage with his wife, to fulfill the statement of Rabbi Akiva. This indicates that according to Rabbi Akiva, not only ḥalitza but even levirate marriage is permitted. The Gemara concludes: Learn from this that this is the correct understanding of the mishna.

Rabba raised an objection from the following baraita: A man with crushed testicles, and one whose penis has been severed, and a eunuch caused by man, and an elderly man who is no longer capable of fathering children, may either perform ḥalitza or enter into levirate marriage. The baraita clarifies the matter: How so? If these men died and they had wives and they also had brothers, and the brothers proceeded to perform levirate betrothal with their wives, or gave them a bill of divorce, or performed ḥalitza with them, what they did is done, i.e., it is a valid act. And if the brothers had intercourse with the wives, they acquired them in levirate marriage, like any other yevama.

If the brothers of these sexually impaired men died, and the sexually impaired men proceeded to perform levirate betrothal with their brothers’ wives, or gave them a bill of divorce, or performed ḥalitza with them, what they did is done, i.e., it is a valid act. And if they had intercourse with their brothers’ wives they acquired them in levirate marriage, but they are prohibited from maintaining them as their wives because it is stated: “A man with crushed testicles or a severed penis shall not enter into the congregation of the Lord” (Deuteronomy 23:2). Apparently, we are dealing with a case where the eunuch’s brother had married a woman who is in the congregation of the Lord, i.e., a Jew from birth who is governed by this prohibition, and not a convert.

Rather, Rabba said that the case here is one where one’s brother died and his yevama happened before him for levirate marriage, and he was injured only afterward. Since the mitzva of levirate marriage had initially applied to him, he performs ḥalitza with her.

Abaye said to him: If so, let the prohibition applying to a man with crushed testicles come and override the positive mitzva of levirate marriage. Didn’t we learn in a mishna (109a) as follows: With regard to a case of two brothers who were married to two sisters, one of whom was a minor married off by her brothers in a marriage valid only by rabbinic decree, and the brother who was married to the adult sister passed away, Rabban Gamliel says: If the minor sister refuses her husband, declaring that she does not desire the marriage, she has refused him. Since the marriage is valid only by rabbinic decree, the girl may terminate it before she reaches the age of twelve by declaring that she does not wish to remain in the marriage, and no bill of divorce is required. In such a case the marriage is nullified retroactively, and so her former husband, the yavam, may perform levirate marriage with her sister.

The mishna continues: But if she does not refuse him, the minor must wait and her husband must not have relations with her until she reaches adulthood and their marriage is valid by Torah law, since in the meantime she is forbidden to him as the sister of a woman awaiting levirate marriage with him. At that point, when the minor reaches adulthood, this one, the adult sister, goes out free from the yavam without levirate marriage or ḥalitza as his wife’s sister. Apparently, the prohibition with regard to a wife’s sister comes and overrides the mitzva of levirate marriage that had previously been in effect. Here too, then, let the prohibition applying to a man with crushed testicles come and override the positive mitzva of levirate marriage.

Rather, Rav Yosef said: This tanna of our mishna is the tanna of the school of Rabbi Akiva, who said that only the child born of a union between those who are liable for violating prohibitions involving incestuous relationships is a mamzer, but the child born of a union between people who are liable for violating ordinary prohibitions is not a mamzer. The prohibition applying to a man with crushed testicles falls into the latter category, and therefore his marriage is valid and he may perform ḥalitza.

The Gemara asks: Why does the mitzva of levirate marriage apply at all to a eunuch? Read here the verse with regard to levirate marriage: “To establish a name for his brother in Israel” (Deuteronomy 25:7), and this one is no longer capable of this, even if previously he had an hour of fitness when he was fertile earlier in his life.

Rava said: If it is so that anyone who cannot presently father children is exempt from levirate marriage even if he had previously been capable of doing so, there is no instance of a woman who is fit for the yavam, as even if her husband died of natural causes it is impossible that he did not become like a eunuch by natural causes an hour before his death. He had certainly lost his fertility before dying, and therefore he has the status of a eunuch, which means that the mitzva of levirate marriage should not apply in his case at all. Rather, it must be that a man who had previously been capable of fathering children is considered fit for the purposes of levirate marriage.

The Gemara comments: According to the opinion of Rabbi Eliezer in the mishna that a eunuch caused by man does not perform ḥalitza and his marriage is invalid even though he had an hour of fitness when he was fertile, Rava’s answer, his proof from the fact that all men on their deathbeds lack sexual capacity, is undoubtedly a refutation.

The Gemara answers: Rabbi Eliezer maintains that a man who is about to die cannot be compared to a eunuch, as there, he can no longer father children due to the general weakness that begins to take over his body as death approaches, which prevents him from engaging in relations with a woman, but his basic ability to father children remains unimpaired.

The Gemara raises a practical question: What are the circumstances of a eunuch by natural causes? Rav Yitzḥak bar Yosef said that Rabbi Yoḥanan said: Anyone

Talmud - Bavli - The William Davidson digital edition of the Koren No=C3=A9 Talmud
with commentary by Rabbi Adin Steinsaltz Even-Israel (CC-BY-NC 4.0)
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