Yevamot 164

ואנא דאמרי כרבי יוסי

while I maintain the view of R. Jose'.<span class="x" onmousemove="('comment',' Who stated in our Mishnah that the hermaphrodite may confer upon his wife the right of eating terumah. It was in reference to this that R. Johanan had stated that the hermaphrodite may also confer upon his wife the right of eating the breast and the shoulder, which are Pentateuchally ordained, since terumah also according to R. Jose is even at the present time a Pentateuchal ordinance. ');">¹</span> For it was taught in Seder 'Olam:<span class="x" onmousemove="('comment',' Lit., 'Order of the World', a chronological work compiled in the first half of the second century by R. Jose b. Halafta. ');">²</span>

דתניא בסדר עולם (דברים ל, ה) אשר ירשו אבותיך וירשתה ירושה ראשונה ושניה יש להן ושלישית אין להן

Which thy fathers possessed, and thou shalt possess it,<span class="x" onmousemove="('comment',' Deut. XXX. 5, [H] the rt. of [H] is repeated. ');">³</span> they had a first,<span class="x" onmousemove="('comment',' After the conquest in the days of Joshua ');">⁴</span>

וא"ר יוחנן מאן תנא סדר עולם רבי יוסי

and a second<span class="x" onmousemove="('comment',' In the days of Ezra. ');">⁵</span> possession,<span class="x" onmousemove="('comment',' The sanctity of Eretz Israel having ceased with the destruction of the first Temple and the Babylonian exile, a second 'posses sion was necessary to restore to the land its sanctity. ');">⁶</span>

וסבר רבי יוחנן בדרבנן לא בעינן רבויא והא תנן מקוה שיש בו ארבעים סאה מכוונות נתן סאה ונטל סאה כשר וא"ר יהודה בר שילא אמר ר' אסי א"ר יוחנן עד רובו

but they had no third one;<span class="x" onmousemove="('comment',' Which was not necessary, the second sanctification having remained for all time. As the land thus remained sacred the Pentateuchal obligation of terumah also remained in force. ');">⁷</span> and R. Johanan stated, 'Who is the author of Seder 'Olam? R. Jose'.<span class="x" onmousemove="('comment',' V. Nid. 46b. ');">⁸</span>

מאי לאו דנשתייר רובו לא דלא נשקול רובו

But is R. Johanan of the opinion that in respect of a Rabbinically forbidden object no excess is required?<span class="x" onmousemove="('comment',' To effect neutralization. It is now assumed that the reason why R. Johanan maintains that 'even if the unconsecrated fruit were no more than the terumah' it is permitted is because, in the case of a Rabbinical prohibition, neutralization is effected by the mere accident of the mixing of consecrated with unconsecrated fruit even though the latter did not form the larger part and not because he relies on the above mentioned assumption. ');">⁹</span> Surely we learned: A ritual bath containing exactly forty <i>se'ah</i> [of water]<span class="x" onmousemove="('comment',' The minimum quantity of water that constitutes a ritual bath. ');">¹⁰</span>

ואיבעית אימא שאני הכא דאיכא למימר שאני אומר

to which one <i>se'ah</i><span class="x" onmousemove="('comment',' Of unsuitable liquid. ');">¹¹</span> was added and from which one <i>se'ah</i><span class="x" onmousemove="('comment',' Of the entire quantity of forty-one se'ah. ');">¹²</span>

תנן אנדרוגינוס נושא תני אם נשא

was taken off, is deemed to be ritually fit.<span class="x" onmousemove="('comment',' Mik. VII, 2. The se'ah of unsuitable liquid is regarded as having been neutralized in the forty se'ah of water, so that when one se'ah of the mixture was subsequently removed, the minimum of forty se'ah of suitable liquid still remained in the bath. ');">¹³</span> And R. Judah b. Shila stated in the name of R. Assi in the name of R. Johanan. 'As much as its greater part'.<span class="x" onmousemove="('comment',' Zeb. 22a. This is explained presently. ');">¹⁴</span>

והא נושא קתני וליטעמיך מאי אבל לא נישא אלא מאי נישא דיעבד נושא נמי דיעבד

Does not this mean that the greater part must remain?<span class="x" onmousemove="('comment',' I.e., se'ah after se'ah of unsuitable liquid may be added and an equal quantity of the mixture may be successively removed only until a minimum of twenty-one se'ah of suitable water remains in the bath. Should there remain less, so that the suitable liquid no longer represents the greater part of the mixture, the bath would become ritually unfit. This (the unsuitability of certain liquids in a ritual bath being only a Rabbinical provision) proves that according to R. Johanan an excess is required even in the case of Rabbinical ordinances! ');">¹⁵</span> — No; that the greater part must not be removed.<span class="x" onmousemove="('comment',' If only half of the suitable water remained the unsuitable liquid is neutralized, no excess being required. ');">¹⁶</span>

אמרי לא נושא לכתחלה משמע אבל לא נישא דיעבד נמי לא

And if you prefer I might say: Here<span class="x" onmousemove="('comment',' The case in the Baraitha of Terumoth. ');">¹⁷</span> it is different,<span class="x" onmousemove="('comment',' From the case of the ritual bath or other Rabbinical ordinances where an excess may in fact be required. ');">¹⁸</span>

והא מדקתני סיפא רבי אליעזר אומר אנדרוגינוס חייבין עליו סקילה כזכר מכלל דת"ק ספוקי מספקא ליה

since it may be said, 'For it is assumed'.<span class="x" onmousemove="('comment',' 'That the terumah fell into the terumah and the unconsecrated fruit etc.' (v. supra), so that no forbidden food had ever entered the basket of the unconsecrated fruit. Such an assumption is obviously inapplicable in the case of the bath. ');">¹⁹</span> We learned, THE HERMAPHRODITE MAY MARRY [A WIFE]!<span class="x" onmousemove="('comment',' taub. This shews that he is regarded as a proper male. As such he should confer upon his wife the right to eat of the breast and the shoulder. How then could Resh Lakish maintain supra that he does not? ');">²⁰</span>

בין למר בין למר מפשט פשיטא ליה איכא בינייהו סקילה משני מקומות דמר סבר חייבין עליו סקילה משני מקומות ומר סבר כזכר

— Read, 'If he married',<span class="x" onmousemove="('comment',' [H] i.e., if marriage had already taken place it is valid in so far as to require a letter of divorce for its dissolution since it is possible that he is a male. Originally, however, no such marriage is permitted owing to the equal possibility that he is not a male but a female. ');">²¹</span> But, surely, it was stated MAY MARRY!<span class="x" onmousemove="('comment',' Implying that marriage may be contracted in the first instance.CF. supra n. 1. ');">²²</span>

אמר רב

— And even in accordance with your view what is the meaning of BUT MAY NOT BE MARRIED [BY A MAN]?<span class="x" onmousemove="('comment',' [H]. Perfect. Surely this cannot refer to marriage in the first instance but to a marriage already performed? ');">²³</span> Consequently it must be granted that as MAY&nbsp;… BE MARRIED<span class="x" onmousemove="('comment',' [H]. Perfect. Surely this cannot refer to marriage in the first instance but to a marriage already performed? ');">²³</span> implies an act that had already been performed, so also MAY MARRY implies an act that had already been performed. It may still be urged: No;<span class="x" onmousemove="('comment',' The two expressions are not identical. ');">²⁴</span> MAY MARRY implies that the act is permissible; but MAY NOT BE MARRIED<span class="x" onmousemove="('comment',' [H]. Perfect. Surely this cannot refer to marriage in the first instance but to a marriage already performed? ');">²³</span> implies, not even if the act had already been performed.<span class="x" onmousemove="('comment',' The difficulty against the view of Resh Lakish consequently remains, while the opinion of R. Johanan receives confirmation. ');">²⁵</span> But surely since it was taught in the final clause, R. ELIEZER STATED: [FOR COPULATION WITH] AN HERMAPHRODITE THE PENALTY OF STONING IS INCURRED AS [IF HE WERE] A MALE, it is to be inferred that the first Tanna was doubtful on the point!<span class="x" onmousemove="('comment',' Whether the hermaphrodite is to be regarded as a male. This, then, presents an objection against the view of R. Johanan. ');">²⁶</span> — The law<span class="x" onmousemove="('comment',' That the hermaphrodite is regarded as a male. ');">²⁷</span> was clear to the one Master as well as to the other Master; the only difference between them was the question of stoning for copulation through either of his two organs. One Master<span class="x" onmousemove="('comment',' The first Tanna. ');">²⁸</span> was of the opinion that the penalty of stoning is incurred by copulation through either of the two organs,<span class="x" onmousemove="('comment',' Even if it was effected through his female organ. ');">²⁹</span> while the other Master<span class="x" onmousemove="('comment',' R. Eliezer. ');">³⁰</span> was of the opinion [that it is incurred through the male organ only] AS [IF HE WERE] A MALE. Rab said: