Bava Batra 253

אמימר אמר אף אינו ממעט חלק בכורה שנא' (דברים כא, טו) וילדה לו בנים עד שיהא בן בשעת לידה

Amemar said: Nor does he reduce the portion of the birthright;<span class="x" onmousemove="('comment',' If the tumtum had, e.g., two brothers, one of whom was firstborn, the inherited estate is to be divided into three portions only, (as if the tumtum did not exist). Of these, the firstborn who is entitled to a double Portion (one ordinary and one as his birthright) receives one portion (that for the birthright), while the remaining two are subdivided into three Portions, each of the three brothers receiving one. The firstborn's portion of the birthright is thus in no way diminished through the existence of the tumtum. ');">¹</span> for it is said, <i>And they have born him sons</i><span class="x" onmousemove="('comment',' Deut., XXI. 15. ');">²</span> [which implies that] he must have been<span class="x" onmousemove="('comment',' V. note 7. ');">³</span> a son<span class="x" onmousemove="('comment',' Emphasis is laid on born and sons, in the text cited. ');">⁴</span>

רב שיזבי אמר אף אינו נימול לשמנה דאמר קרא (ויקרא יב, ב) אשה כי תזריע וילדה זכר וביום השמיני ימול עד שיהא זכר משעת לידה

at the time of [his] birth.<span class="x" onmousemove="('comment',' Emphasis is laid on born and sons, in the text cited. ');">⁴</span> R. Shezbi said: Nor is he circumcised on the eighth [day<span class="x" onmousemove="('comment',' V. Gen. XVII, 12. ');">⁵</span> of his birth];<span class="x" onmousemove="('comment',' If that day fell on a Sabbath. ');">⁶</span> for Scripture said, <i>If a woman be delivered, and bear a man-child … and in the eighth day [the flesh of his foreskin] shall be circumcised</i>,<span class="x" onmousemove="('comment',' Lev. XII, 2-3, from which is derived the suspension of the Sabbath laws in favour of circumcision on the eighth day (v. Shab. 131b). ');">⁷</span>

רב שרביא אמר אף אין אמו טמאה לידה דאמר קרא אשה כי תזריע וילדה זכר וטמאה שבעת ימים עד שיהא זכר משעת לידה

[which implies that] he must be<span class="x" onmousemove="('comment',' V. note 7. ');">⁸</span> a <i>male</i> at<span class="x" onmousemove="('comment',' Lit., 'from'. ');">⁹</span> the time of [his] <i>birth</i>.<span class="x" onmousemove="('comment',' Since Scripture states, man-child&nbsp;…' shall be circumcised'. ');">¹⁰</span> R. Sherabya said: Nor is his mother [levitically] unclean [on account] of [his] birth;<span class="x" onmousemove="('comment',' V. Lev. XII, 2 and 5. ');">¹¹</span>

מיתיבי המפלת טומטום ואנדרוגינוס תשב לזכר ולנקיבה תיובתי' דרב שרביא תיובתא

for Scripture said, <i>If a woman be delivered, and bear a man-child, then she shall be unclean seven days</i> [which implies that she is not unclean]<span class="x" onmousemove="('comment',' The period of seven days. V. ibid. v. 2. ');">¹²</span> unless he<span class="x" onmousemove="('comment',' V. note 7, supra. ');">¹³</span> was a <i>male</i> at<span class="x" onmousemove="('comment',' Lit., 'from'. ');">⁹</span> the time of [his] birth.<span class="x" onmousemove="('comment',' The emphasis is on 'man-child, then she shall be unclean'. ');">¹⁴</span>

לימא תיהוי תיובתא דרב שיזבי

An objection was raised: [It was taught]. 'If a woman miscarried a <i>tumtum</i><span class="x" onmousemove="('comment',' V. p. 526, n. 10. ');">¹⁵</span> or an<i> androginos</i>,<span class="x" onmousemove="('comment',' [H] [G] Hermaphrodite. ');">¹⁶</span> she must continue [in her levitical uncleanness and cleanness, as] for both a male and a female'.<span class="x" onmousemove="('comment',' She must observe fourteen unclean clays as for a female (Lev. XII. 5), and not seven only as for a male (ibid. v. 2); while her period of cleanness is not sixty-six days, as for a female (ibid. v. 5)' but only thirty-three as for a male (ibid. v. 4) Prom these thirty-three days, however, the additional seven days (the difference between the unclean periods if male and female respectively) are to be deducted, so that her period if cleanness consists of twenty-six days only. ');">¹⁷</span> [Is not this] an objection [to the statement] of R. Sherabya?<span class="x" onmousemove="('comment',' Who said that the mother was not unclean at all. ');">¹⁸</span>

תנא ספוקי מספקא ליה ולחומרא

— This is an objection. May it be suggested [that] this is [also] all objection [against the statement] of R. Shezbi?<span class="x" onmousemove="('comment',' He does not regard a tumtum as male at all, while the cited Baraitha regards him as partly male. ');">¹⁹</span> The Tanna<span class="x" onmousemove="('comment',' Of the cited Baraitha. ');">²⁰</span> may have been in doubt<span class="x" onmousemove="('comment',' As to whether a tumtum and an androginos are to be regarded as males or females. ');">²¹</span>

אי הכי תשב לזכר ולנקבה ולנדה מיבעי ליה קשיא

and, [consequently. he imposed a double] restriction.<span class="x" onmousemove="('comment',' That if a female as regards the unclean period, and that of a male regarding the clean period. In the case of circumcision, the restrictions of Sabbath observance also have been imposed. ');">²²</span> If so,<span class="x" onmousemove="('comment',' That, on account of the doubt, additional restrictions were imposed. ');">²³</span> it should have been [stated that] she should continue [in her uncleanness] for a male, and for a female, and for her menstruation!<span class="x" onmousemove="('comment',' Since it is also possible that the law of 'uncleanness of birth' is not applicable in such a doubtful case, the woman should be subject must only to the restrictions connected with the birth of a male and a female, but also to those of menstruation. The unclean period due to birth (fourteen for a female which include the seven for a male should not, accordingly, be followed by the clean period of twenty-six days (v. note 1, supra) during which she is regarded as clean even if blood had appeared, but by that of menstruation, I.e., let her be treated as if no birth at all had taken place and, consequently, if any blood appeared she should become menstrually unclean. ');">²⁴</span> — This is a difficulty.

אמר רבא תניא כוותיה דר' אמי בן ולא טומטום בכור ולא ספק

Raba said: It was taught in agreement with [the view] of R. Ammi:<span class="x" onmousemove="('comment',' That a tumtum, though found after an operation to be male, is not entitled to the birthright. ');">²⁵</span> [The expression.] a Son,<span class="x" onmousemove="('comment',' Deut. XXI. is. ');">²⁶</span> [Implies], but not a <i>tumtum</i>;<span class="x" onmousemove="('comment',' I.e., a birth, though found later to be made. ');">²⁷</span> [the expression] a firstborn,<span class="x" onmousemove="('comment',' Ibid. ');">²⁸</span>

בשלמא בן ולא טומטום כדר' אמי אלא בכור ולא ספק לאפוקי מאי

[implies] but not a doubtful case.<span class="x" onmousemove="('comment',' That of one about whom it is uncertain whether he is firstborn. ');">²⁹</span> [The statement]. 'in son, but not a <i>tumtum</i>' [can well be explained] in accordance with [the view] of R. Ammi; but what does [the statement]. 'a firstborn, but not a doubtful case', exclude?<span class="x" onmousemove="('comment',' It being obvious that the doubtful first-boris has no claim to the double portion. ');">³⁰</span> — It excludes<span class="x" onmousemove="('comment',' Lit., 'to exclude'. ');">³¹</span> [the opinion arrived at] through Raba's exposition. For Raba gave the following exposition: [if] two women<span class="x" onmousemove="('comment',' Wives of the same husband. ');">³²</span>

לאפוקי מדדרש רבא דדרש רבא שתי נשים שילדו ב' זכרים במחבא כותבין הרשאה זה לזה

gave birth [respectively] to two male children in a hiding place.<span class="x" onmousemove="('comment',' So that it is not known is who was born first. ');">³³</span> [these<span class="x" onmousemove="('comment',' When they came to claim a share in their father's bequeathed estate. ');">³⁴</span> may] write out an authorisation for one another.<span class="x" onmousemove="('comment',' Since one of the to is is certainly firstborn, he who receives the authorisation can claim from his brothers the double portion of the birthright, either on his own behalf or on behalf of his brother. The second clause of the cited Baraitha proves that Scripture did not permit of such a Procedure, and that in any doubtful case the double portion of the birthright cannot he claimed. ');">³⁵</span> R. Papa said to Raba: Surely Rabin had sent [a message stating]: This question I have asked of all my teachers, but they told me nothing; the following, however, was reported in the name R. Jannai: [If] they<span class="x" onmousemove="('comment',' The two sons of whom it is not known which is the firstborn. ');">³⁶</span>

א"ל רב פפא לרבא והא שלח רבין דבר זה שאלתי לכל רבותי ולא אמרו לי דבר ברם כך אמרו משום ר' ינאי הוכרו ולבסוף נתערבו כותבין הרשאה זה לזה לא הוכרו אין כותבין הרשאה זה לזה

were identified,<span class="x" onmousemove="('comment',' At their birth. ');">³⁷</span> and afterwards they were exchanged, they may give written authorisation to one another; [if] they were not identified,<span class="x" onmousemove="('comment',' At their birth. ');">³⁷</span> they may not give written authorisation to one another.<span class="x" onmousemove="('comment',' How, then, could Raba state that is written authorisation may be given in all cases, presumably even when they were never identified. ');">³⁸</span> Subsequently Raba appointed an Amora<span class="x" onmousemove="('comment',' An interpreter. v. Glos. ');">³⁹</span>

הדר אוקי רבא אמורא עליה ודרש דברים שאמרתי לכם טעות הן בידי ברם כך אמרו משום ר' ינאי הוכרו ולבסוף נתערבו כותבין הרשאה זה לזה לא הוכרו אין כותבין הרשאה זה לזה

by his side, and made the following exposition: what have told you was in error; but this, indeed, has been reported in the name of R. Jannai. 'If they<span class="x" onmousemove="('comment',' The two sons of whom it is not known which is the firstborn. ');">³⁶</span> were identified<span class="x" onmousemove="('comment',' When they came to claim a share in their father's bequeathed estate. ');">³⁴</span> and afterwards they were exchanged, they may give written authorisation to one another, [if] they were not identified<span class="x" onmousemove="('comment',' At their birth. ');">³⁷</span> they may not give written authorisation to one another.

שלחו ליה בני אקרא דאגמא לשמואל ילמדנו רבינו היו מוחזקין בזה שהוא בכור ואמר אביו על אחר בכור הוא מהו שלח להו כותבין הרשאה

The men of Akra di Agama<span class="x" onmousemove="('comment',' ['The fort of Agama' near Pumbeditha (v. Obermeyer. op. cit, P. 237. n. 3).] ');">⁴⁰</span> addressed<span class="x" onmousemove="('comment',' Lit., 'Sent'. ');">⁴¹</span> [the following enquiry] to Samuel: Will our master instruct us [as to] what [is the law in the case] where one was generally held-to be a firstborn son, but his father declared that another [son] was the firstborn?<span class="x" onmousemove="('comment',' Which of the two is entitled to the birthrights ');">⁴²</span> — He sent to them [the following reply]: 'They may write on an authorisation