Yevamot 134

אין חוששין למיעוטא ואיבעית אימא לעולם קסבר חוששין למיעוטא דעבדינן ליה תקנתא כרב נחמן אמר שמואל

that no provision need be made against the less usual cases.<span class="x" onmousemove="('comment',' Lit., 'a minority'. I.e., against the possibility that the embryo might be born a viable male. Against the possibility of male births there is the equal possibility of female births, and by adding the minority of miscarrying women to the half of female births, the male births are found to form only a minority. ');">¹</span> Or if you prefer I might say that he<span class="x" onmousemove="('comment',' R. Simeon. ');">²</span> is of the opinion that provision in fact must be made against the less usual cases also, [but here] a special arrangement might be made<span class="x" onmousemove="('comment',' The embryo is allotted as his share a portion of the estate exclusive of the slaves, who consequently form a portion of the shares of the living brothers, who, as their owners, bestow upon the slaves the right of eating terumah. Where, however, there are only daughters, such an arrangement cannot be made, since in such a case the embryo, in case he is born a viable male, is the sole heir and owner. ');">³</span>

דאמר רב נחמן אמר שמואל יתומים שבאו לחלוק בנכסי אביהם ב"ד מעמידין להם אפוטרופוס ובורר להם חלק יפה הגדילו יכולין למחות ורב נחמן דידיה אומר הגדילו אין יכולין למחות דא"כ מה כח ב"ד יפה

in accordance with a ruling of R. Nahman in the name of Samuel. For R. Nahman stated in the name of Samuel: Where orphans<span class="x" onmousemove="('comment',' Who are minors. ');">⁴</span> wish to divide the property of their [deceased] father, <i>Beth din</i> appoint a guardian for [every one of] them, and [each guardian] chooses for his ward a suitable portion. As soon, however, as they reach their majority they are entitled to enter a protest.<span class="x" onmousemove="('comment',' Against the original division, and to demand a new one. The validity of acceptance of the shares by the guardians extends only to the produce or yield of the estate up to the date of the protest. ');">⁵</span> In his own name, however, R. Nahman stated: Even when they reach majority they are not entitled to protest, for otherwise what validity is there in the authority of a <i>Beth din</i>!<span class="x" onmousemove="('comment',' V. Kid. Sonc. ed., p. 210, notes. ');">⁶</span>

לימא דרב נחמן תנאי היא לא דכ"ע אית להו דרב נחמן והכא בחוששין למיעוטא קמיפלגי

Must it be assumed that R. Nahman's ruling is a matter of dispute between Tannaim!<span class="x" onmousemove="('comment',' That R. Simeon, who permits the slaves to eat, in the case of sons, by adopting the arrangement mentioned, is of the same opinion as R. Nahman; while R. Jose, who forbids terumah to the slaves, maintaining as he evidently does that the arrangement is of no avail and that the division must be postponed until the heirs reach majority, is in disagreement with R. Nahman. ');">⁷</span> — No; all accept R. Nahman's [arrange. ment],<span class="x" onmousemove="('comment',' Wherever such had been made, ');">⁸</span> but the dispute here<span class="x" onmousemove="('comment',' Between R. Jose and R. Simeon, supra 6a. ');">⁹</span>

ר' ישמעאל בר' יוסי אומר משום אביו הבת מאכיל הבן אינו מאכיל מ"ש בן דלא מאכיל משום חלקו של עובר בת נמי לא תאכיל מפני חלקו של עובר

centres on the question whether<span class="x" onmousemove="('comment',' Where R. Nahman's arrangement had not been made, ');">¹⁰</span> provision was to be made against the less usual cases.<span class="x" onmousemove="('comment',' R. Simeon permits the slaves to eat terumah, because he holds that no provision has to be made against the less usual cases (v. supra p. 451, n. 3) while R. Jose forbids them to eat it, because he maintains that provision must be made even against the less usual case. ');">¹¹</span> 'R. Ishmael], son of R. Jose, stated in the name of his father: A daughter may bestow the right of eating; a son may not.<span class="x" onmousemove="('comment',' This is now assumed to mean that where there is a daughter but no son, she bestows the right of eating terumah upon the slaves, but where there is a son, the slaves are not permitted to eat the terumah. ');">¹²</span>

אמר אביי הכא בנכסים מועטים עסקינן וכגון דאיכא בן בהדי בת

Wherein lies the difference [between the son and the daughter]? If a son may not bestow the right of eating on account of the share of the embryo, a daughter also should not be entitled to bestow the right of eating on account of the share of the embryo! — Abaye replied: Here<span class="x" onmousemove="('comment',' R. Ishmael's statement. ');">¹³</span> we are dealing with a small estate<span class="x" onmousemove="('comment',' Which, by an ordinance of the Rabbis, must be handed over to the daughters for their maintenance while the sons receive nothing. v. B.B, 139b. ');">¹⁴</span> and in a case where there is a son<span class="x" onmousemove="('comment',' To whom the estate belongs in accordance with the Pentateuchal law. ');">¹⁵</span>

מה נפשך אי האי דמעברא בן הוא לא עדיף מהאי דקאי אי בת היא אמאי אכלה בתקנתא דרבנן כמה דלא נפק לאויר העולם לא תקינו רבנן

as well as a daughter, [so that the slaves may eat the <i>terumah</i>] whatever be the assumption [as to the sex of the embryo]. If the embryo is a son then he is not better than the one who is already born.<span class="x" onmousemove="('comment',' Lit., 'exists', 'stands'. Since the Rabbis deprived the living son of his share and gave it to the daughters. they have, even more so, deprived the embryo of its share. ');">¹⁶</span> And if it is a daughter, then why does a daughter eat at all?<span class="x" onmousemove="('comment',' From her father's estate, though he is also survived by sons' ');">¹⁷</span> Surely by virtue of an ordinance of the Rabbis.<span class="x" onmousemove="('comment',' Pentateuchally she has no claim at all in the presence of a son. ');">¹⁸</span>

במאי אוקימתא בנכסים מועטים אימא סיפא שמא ימצא העובר זכר ואין לבנות במקום בן כלום אדרבה נכסים מועטים דבנות נינהו סיפא אתאן לנכסים מרובין

But so long as she has not seen the light<span class="x" onmousemove="('comment',' Lit., 'came out into the air of the world'. ');">¹⁹</span> no provision for her has been made by the Rabbis.<span class="x" onmousemove="('comment',' The embryo, consequently, cannot possibly have a share in the slaves, who may. therefore, eat terumah by virtue of the rights of the living children. Had there been a daughter only and no son, the slaves would not have been permitted to eat terumah on account of the embryo, which, were it a female, would have had in the slaves an equal share with their sister. ');">²⁰</span> If you take it<span class="x" onmousemove="('comment',' R. Ishmael's statement. ');">²¹</span>

ונכסים מועטים דבנות נינהו והאמר רבי אסי א"ר יוחנן יתומין שקדמו ומכרו בנכסים מועטים מה שמכרו מכרו

to refer<span class="x" onmousemove="('comment',' Lit., 'in what did you place it'. ');">²²</span> to a small estate, [how will you] explain the final clause,<span class="x" onmousemove="('comment',' Which presumably deals with a similar case. ');">²³</span> 'since it is possible that the embryo might be a male, and daughters, where there is a son, have no share at all'? On the contrary; a small estate belongs to the daughters! — The final clause refers to a large estate. But does a small estate belong to the daughters? Surely, R. Assi stated in the name of R. Johanan: Where male orphans forestalled [the ruling of <i>Beth din</i>] and sold a small estate, their sale is valid!<span class="x" onmousemove="('comment',' Keth. 103a, Sotah 21b, B.B. 140a. Which proves that the estate, even when small, belongs to the sons also. How then could the slaves be permitted to eat terumah? ');">²⁴</span>

ואלא מאי בת דקתני אם א"ה היינו ר' יוסי כולה ר' ישמעאל בר' יוסי קתני לה:

— But the fact is that by the mention of daughter 'the mother' is to be understood.<span class="x" onmousemove="('comment',' I.e., the mother of the embryo may feed her melog slaves with terumah as she herself is permitted to eat it by virtue of her living sons. A son, however, may not feed the zon barzel slaves with terumah owing to the share of the embryo. ');">²⁵</span> If so, this is exactly the same statement as that of R. Jose! — The entire statement was made by R. Ishmael son of R. Jose. <b><i>MISHNAH</i></b>. AN EMBRYO,<span class="x" onmousemove="('comment',' Whose mother was (a) the daughter of a priest married to an Israelite, or (b) the daughter of an Israelite married to a priest, and whose father died before he (the embryo) was born. ');">²⁶</span>

<big><strong>מתני׳</strong></big> העובר והיבם והאירוסין והחרש ובן תשע שנים ויום אחד פוסלין ולא מאכילין

A LEVIR,<span class="x" onmousemove="('comment',' The widow of whose deceased brother was (a) the daughter of a priest (he and his brother being Israelites), or (b) the daughter of an Israelite (he and his brother being priests). ');">²⁷</span> BETROTHAL,<span class="x" onmousemove="('comment',' Of (a) the daughter of a priest to an Israelite, or (b) the daughter of an Israelite to a priest. ');">²⁸</span> A DEAF-MUTE,<span class="x" onmousemove="('comment',' Who is (a) an Israelite married to the daughter of a priest, or (b) a priest married to the daughter of an Israelite. ');">²⁹</span>

ספק שהוא בן ט' שנים ויום אחד ספק שאינו ספק הביא ב' שערות וספק שלא הביא

AND A BOY WHO IS NINE YEARS AND ONE DAY OLD,<span class="x" onmousemove="('comment',' This is explained in the Gemara, infra. ');">³⁰</span> DEPRIVE [A WOMAN]<span class="x" onmousemove="('comment',' If she is (a) the daughter of a priest (cf. last four notes). ');">³¹</span> OF THE RIGHT [OF EATING <i>TERUMAH</i>], BUT CANNOT BESTOW THE PRIVILEGE UPON HER,<span class="x" onmousemove="('comment',' If she is (b) the daughter of an Israelite (cf. supra notes 6-9). ');">³²</span>

נפל הבית עליו ועל בת אחיו ואין ידוע אי זה מת ראשון צרתה חולצת ולא מתייבמת:

[EVEN WHEN] IT IS A MATTER OF DOUBT WHETHER THE BOY IS NINE YEARS AND ONE DAY OLD OR NOT,<span class="x" onmousemove="('comment',' This has no reference to what follows and is explained in the Gemara. ');">³³</span> OR WHETHER HE<span class="x" onmousemove="('comment',' Who betrothed the woman. ');">³⁴</span> HAS PRODUCED TWO HAIRS<span class="x" onmousemove="('comment',' Which are the marks of puberty, when he becomes legally entitled to contract a marriage. ');">³⁵</span>

<big><strong>גמ׳</strong></big> העובר: אי בת כהן לישראל היא פסיל לה (ויקרא כב, יג) כנעוריה פרט למעוברת אי בת ישראל לכהן היא לא מאכיל לה ילוד מאכיל שאינו ילוד אינו מאכיל:

OR NOT. IF A HOUSE COLLAPSED UPON A MAN AND UPON HIS BROTHER'S DAUGHTER,<span class="x" onmousemove="('comment',' To whom he had been married and who, like himself, died childless. ');">³⁶</span> AND IT IS NOT KNOWN WHICH OF THEM DIED FIRST, HER RIVAL MUST PERFORM <i>HALIZAH</i><span class="x" onmousemove="('comment',' With the daughter's father, the brother of the deceased. Though the dead woman was his forbidden relative, her rival becomes subject to the halizah because it is possible that the woman had been killed before the man, and when the man died her former rival was no longer related to her. V. infra note 6. ');">³⁷</span>

היבם: אי בת כהן לישראל היא פסיל לה (ויקרא כב, יג) ושבה אל בית אביה פרט לשומרת יבם אי בת ישראל לכהן היא לא מאכיל לה (ויקרא כב, יא) קנין כספו אמר רחמנא והא קנין דאחיו הוא:

BUT MAY NOT CONTRACT LEVIRATE MARRIAGE.<span class="x" onmousemove="('comment',' Because it is also possible that the man was killed first and that the rival consequently remained forbidden to the levir as the rival of his daughter. ');">³⁸</span> <b><i>GEMARA</i></b>. AN EMBRYO, for if [its mother] is the daughter of a priest [who was married] to an Israelite [the embryo] deprives her of the privilege,<span class="x" onmousemove="('comment',' Of eating terumah. ');">³⁹</span> [for it is written]. As in her youth,<span class="x" onmousemove="('comment',' Lev. XXII, 13. ');">⁴⁰</span>

והאירוסין: אי בת כהן לישראל היא פסיל לה

which excludes one who is with child.<span class="x" onmousemove="('comment',' Only when she returned unto her father's house as in her youth (v. ibid.), i.e., if, like a virgin, she has no child at all, not even an embryo, may she eat of her father's bread (ibid.) i.e., terumah. ');">⁴¹</span> And if she is the daughter of an Israelite [who was married] to a priest, the embryo does not bestow the privilege<span class="x" onmousemove="('comment',' Of eating terumah. ');">³⁹</span> upon her, because the living child does bestow the privileged but not the unborn.<span class="x" onmousemove="('comment',' This is deduced from Such as are born in his house etc. (Lev. XXII, 11) by taking the Kal [H] in the sense of Hif. [H] V Torath Kohanim, a.l., (v. Rashi). ');">⁴²</span> A LEVIR, for if [his yebamah] is the daughter of a priest who was married to an Israelite, [the Ievir] deprives her of the privileged [for it is written], And is returned unto her father's house,<span class="x" onmousemove="('comment',' Lev. XXII, 13. ');">⁴⁰</span> which excludes one who is awaiting the decision of the levir;<span class="x" onmousemove="('comment',' Being dependent on the levir's will she cannot without his release, return to her father's house. ');">⁴³</span> and if she is the daughter of an Israelite [who was married] to a priest [the levir] does not bestow the privilege upon her, because the All Merciful said, The purchase of his money.<span class="x" onmousemove="('comment',' Lev. XXII, 11 emphasis on 'his.' ');">⁴⁴</span> while she is the purchase of his brother. BETROTHAL, for if [the woman] is the daughter of a priest [who was betrothed] to an Israelite, [betrothal] deprives her of the privilege,