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בכורות 42:2
Soncino English Talmud · Berean Standard Bible
b. Judah and says: A tumtum is a creature apart and therefore it cannot be holy? — No. All [the authorities] agree that there is no doubt that a tumtum should be considered a creature apart. The doubt is only whether it is to be regarded as a male or a female. Now if it urinates in the male part, then all agree that it is a male. The doubt arises however if it urinates in the female part. One teacher holds: We fear lest his male sex may have changed into a female sex, whereas the other teacher holds: We have no apprehension of such a thing. This agrees with what is told of R. Elai who gave a decision that a tumtum animal which urinates in the female part is hullin and R. Johanan was thereupon astonished, and exclaimed: ‘Which authority is it which does not take into consideration the first Tanna [quoted in our Mishnah above] and R. Ishmael’? But let R. Johanan also say: Who is the authority that does not take into consideration the view of the last Rabbis [in the Mishnah]! For R. Hisda said: The difference of opinion in the Mishnah relates only to a hermaphrodite, but as regards a tumtum all agree that it is a case of a doubtful animal [as to sex]. — R. Johanan does not hold R. Hisda's opinion. But if R. Johanan does not hold R. Hisda's opinion, why does he not explain that he [Elai] follows the view of the last Rabbis [mentioned in the Mishnah]? This is [precisely] what R. Johanan means: Who is the authority that ignores the views of two teachers and follows the view of a single teacher? And as regards R. Elai whose view does he follow? — It is that of Resh Lakish [as follows]: The ruling that a tumtum is a doubtful case [as regards sex] relates only to a human being, since his male and female parts are in the same place. But in the case of an animal, if it urinates in the male part, then it is a male, whereas if it urinates in the female part, it is a female. To this R. Oshaiah demurred: And why not apprehend lest its male sex may have changed to female? — Said [Abaye] to him: Whose view will [this question] represent? Will it be R. Meir's, who takes Into consideration the minority? Both Abaye b. Abin and R. Hanania b. Abin said: You may even say that this question arises also on the view of the Rabbis [the disputants of R. Meir]. for since its condition has changed, there is a different animal? — [The question can be met in this way]: One authority [the first Tanna quoted in the above Baraitha] holds: Since its condition has changed, it is a different animal [and therefore it possesses holiness] whereas the other authority, [R. Simeon] holds: We do not say [with reference to an animal] that since its condition has changed, it is therefore a different animal. May we say that the principle that the change of condition makes a different [human being or animal] is a matter in which Tannaim differ? For it has been taught: If a tumtum betrothes a woman, his betrothal is valid. If he was betrothed, the betrothal is valid. He submits to halizah, his wife must be released by halizah and his brother may marry his wife. And another [Baraitha] taught: The wife of a tumtum must be released by halizah but she must not marry her brother-in-law. Now it was assumed that all agree with R. Akiba who said: A born saris does not submit to halizah, nor perform levirate marriage? The point at issue will therefore be [as follows]: According to the [Tanna of the Baraitha] who holds that a tumtum submits to halizah, that his wife must be released by halizah and his brother may marry his wife, we do not maintain that since the status has been changed, therefore he is a different person, and according [to the Tanna in the Baraitha] who holds: The wife of a tumtum must be released by halizah but must not marry his brother, we maintain that since the status has changed, he is a different person! — No. All [the authorities concerned] agree that we maintain that since the status is changed, he is a different person. [One Baraitha] is in accordance with the view of R. Eleazar and the [other Baraitha] is in accordance with the view of R. Akiba. And who [of R. Akiba's pupils is the Tanna] who holds this opinion according to R. Akiba? Shall I say it is R. Judah? But does he not declare a tumtum to be a sure saris? For we have learnt, R. Judah says: A tumtum [whose skin covering the sexual part] was torn and who was discovered to be a male, need not submit to halizah because he is like a saris! — Rather it is R. Jose b. Judah. For it has been taught, R. Jose b. Judah says: A tumtum does not release his sister-in-law by halizah lest the skin is torn and he will be found to be a born saris. [But is the Tanna sure that he will be discovered to be a male]? Do you mean to say that when the skin is torn he might be discovered to be a male but never a female? Rather [the explanation is]: [R. Judah means that there are two possibilities]. [First], his skin may be torn and it will be found that he is a female. Secondly, even if he is indeed a male, there is a possibility that he will be found to be a born saris. What is the practical difference? — Said Raba:
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