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Sanhedrin, 69

1) OBLIGATING A MINOR

QUESTION: The Gemara attempts to prove that a boy younger than thirteen can sire children. The Beraisa states that we learn from the extra letter "Vav" in the word "v'Ish" that even a boy over nine years old is included in the concept of "Ish." RASHI explains that the Gemara is referring to the word "Ish" in the verse that discusses the punishment for a man who lives with a Shifchah Charufah (Vayikra 19:20; see Background to Kidushin 23:11). The Torah states that the punishment of the man is that he must bring a Korban Asham Shifchah Charufah, and that the woman is punished with Malkus.

What, though, does our Gemara mean when it says that this Halachah applies to a nine year old boy? What Halachah applies to him? How can the Torah be obligating him, a minor, in the law of Shifchah Charufah?

ANSWERS:

(a) The RAMBAM (Hilchos Isurei Bi'ah 3:17, and Hilchos Shegagos 9:3) rules b ased on this Gemara that if a Shifchah Charufah lives with a nine year old boy, he is obligated to bring a Korban for atonement. The RA'AVAD there asks how can it be that the Torah obligates a child to bring a Korban if he is exempt from all Mitzvos. The Korban Asham Shifchah Charufah is a punishment, and a child is not liable to any punishment!

The Rambam apparently distinguishes between punishments that are "bi'Ydei Adam" -- in the hands of Beis Din to administer or enforce, which do *not* apply to a Katan, and punishments that are "bi'Ydei Shamayim" -- in the hands of Hashem, which do apply to a Katan. The Gemara earlier (55b) explains that a child who sins is not considered an inadvertent (Shogeg) sinner. Rather, he is considered to have sinned intentionally and is culpable for what he did; the Torah, however, has mercy on him and exempts him from punishment. This mercy apparently does not extend to exempt the Katan from a Korban, since the primary purpose of a Korban is to achieve atonement, and it does not cause suffering to the person who is obligated.

It is still unclear how we can obligate the Katan to bring a Korban if the Torah is not addressing minors when it teaches the punishments for sins. The Rambam (in Hilchos Shegagos) answers that the Katan will be obligated to bring a Korban only when he reaches the age of observance of Mitzvos.

(b) The RA'AVAD (Hilchos Shegagos 9:3) cites the rule taught in Kerisus (11a) that whenever the Shifchah Charufah is exempt from Malkus, the man is exempt from a Korban. For example, if she is a Ketanah and thus does not receive Malkus, then the man also is not obligated to bring a Korban. The Ra'avad questions whether the opposite is true: is the woman exempt from Malkus when the man is exempt from a Korban?

In his commentary to the Toras Kohanim (Parshas Kedoshim 5, Beraisa 8), the Ra'avad writes that the woman is Chayav even if the man is Patur. He brings a proof to this from the Beraisa cited by our Gemara, which also appears in the Torah Kohanim there. The RASH there learns the same way.

According to this explanation, it would seem that the Beraisa is not teaching that the Katan is Chayav for anything, but rather that the woman is Chayav Malkus for living with a Katan who is nine years old, even though the Katan himself is exempt from punishment.

According to the Ra'avad, the Derashah derived from the word "v'Ish" might be the source for the teaching of the Mishnah in Nidah (45b, cited earlier in Sanhedrin on 55b) that if a woman lives with a nine-year-old boy to whom she is prohibited as an Ervah, she is Chayav Misah even though the boy is Patur. (This Derashah will apply to all of the prohibitions of Arayos and not only to Shifchah Charufah.)

(c) The RA'AVAD (in Hilchos Isurei Bi'ah 3:17) rules that since the Katan is Patur from bringing a Korban Asham, the Shifchah Charufah is also Patur from Malkus. This is also the view of the TOSFOS HA'ROSH cited by the Shitah Mekubetzes in Kerisus (11a, #6).

How will the Ra'avad learn our Gemara which says that we learn from the word "v'Ish" that there is some form of obligation (whether for the woman or for the boy) when the boy is nine years old? The answer is that the Ra'avad might understand the Gemara the way RABEINU YITZCHAK HA'LEVI explains it, as cited by the YAD RAMAH. He explains that the verse our Gemara quotes is *not* the verse discussing Shifchah Charufah. Rather, it is the verse "v'Ish" (Vayikra 15:16) which is discusses Tum'as Keri. This is indeed the way the Derashah appears in Nidah (32b), where the Gemara learns from the extra letter "Vav" in the word "v'Ish" that even a Katan who is nine years old is Metamei through his Shichvas Zera. The verse is saying that he is only Metamei in that manner if he is nine years and one day old (or older).

How, though, does the Ra'avad understand the Toras Kohanim which says explicitly that the law of Shifchah Charufah applies when the boy is nine years old (either to obligate the woman with Malkus or the boy with a Korban, or both)? Apparently, the Ra'avad rejects that Toras Kohanim in favor of a Tosefta in Kerisus (1:9) which states that if, in the case of a Shifchah Charufah, the male was a Katan, then "they are exempt," implying that both the woman and the boy are both exempt.

(The Rambam apparently understood that when the Tosefta says, "Im Hayah Katan" -- "if he was a minor," it is Lav Davka and it means if *she* was a minor, then they are both exempt, since the male's obligation is dependent upon hers. See also Rambam, Hilchos Korban Pesach 5:7, and Kesef Mishneh there, who imply that a Katan is fit to bring a Korban.)

QUESTIONS: The Gemara discusses whether we apply the principle of "Rov" even with regard to Dinei Nefashos, cases of capital punishment. Perhaps we should not follow the majority in such cases, because we are obligated to attempt to save the life of the defendant, as learned from the verse, "v'Hitzilu ha'Edah" (Bamidbar 35:25).

(a) How can the Gemara have any question whether we rely on Rov with regard to Dinei Nefashos? The first Mishnah in Sanhedrin states that when a majority of the members of the court vote to kill someone, we put him to death even though there are others who vote to exonerate him! We see that we apply the principle of Rov to Dinei Nefashos and we do not apply "v'Hitzilu ha'Edah" in order to save the defendant!

(b) The Torah (Bamidbar 35:16) states that if a person kills someone else with a metal weapon (such as a sword), then the murderer is Chayav Misah. If he kills with a sword, how can we be sure that the victim was not a Tereifah and about to die anyway? Perhaps the victim already had a mortal blemish in the place where he was pierced with a sword, and thus the murderer should not be Chayav for killing him! It must be that we rely on Rov in order to convict a murderer, as the Gemara proves based on this logic in Chulin (11b)! (CHIDUSHEI HA"RAN)

ANSWERS:

(a) TOSFOS earlier in Sanhedrin (3b, DH Dinei) writes that our Gemara is not asking whether or not we follow the type of Rov known as a "Ruba d'Isa Kaman." Rather, the Gemara is asking whether or not we follow the type of Rov known as a "Ruba d'Leisa Kaman."

"Ruba d'Leisa Kaman" refers to a majority in *frequency* -- something usually occurs in this manner. The majority is not present and countable, but rather it is a predictable consequence of natural events. For example, we know that there is a Rov that "most animals are not Tereifos." This Rov is not in front of us, but, nevertheless, there exists a fact in the frequency of the occurrence of Tereifah animals that tells us that most animals are born healthy.

"Ruba d'Isa Kaman" refers to a situation in which the Rov is physically present in front of us. For example, when one piece of Tereifah meat became mixed up with two pieces of Kosher meat, the Rov is present in front of us. This type of Rov is considered a more powerful Rov than a "Ruba d'Leisa Kaman." This is because the same factors which produce the majority also produce minority elements as well. For example, just like the natural process of the world produces a majority of women who are healthy and not sterile ("Ailonis"), so, too, the natural process of the world produces some women who are sterile, and the woman under question might be from the minority. Our Gemara proves that even in such a case we follow the Rov.

(b) The CHIDUSHEI HA'RAN answers in the same way that the Gemara in Chulin (11a) rejects this proof. Perhaps we rely on a Rov only in a case in which there is no other way of upholding the Halachah without relying on the Rov. However, when there are other options, we may not rely on the Rov. In the case of Ben Sorer u'Moreh, we do not need to rely on the Rov because we can give him the status of a Ben Sorer u'Moreh up to three months after he reaches adulthood. Similarly, when a man lives with a Ketanah, we can wait until she grows up to find out if she is an Ailonis or not (and if she turns out not to be an Ailonis, we may then kill him). Our Gemara proves that even when it is possible to avoid relying on a Rov, we may nevertheless rely on a Rov for Dinei Nefashos.

69b

QUESTION: The Gemara quotes the verse that says that Doeg and Achitofel did not live even half of their years. From this verse the Gemara derives that Doeg lived until the age of 34 and Achitofel lived until the age of 33. It is clear why the Gemara says that Doeg lived until 34, because 35 is half of the average life span of 70 years, and since he did not reach half of the average age, he lived at most until 34. How, though, do we know that Achitofel lived until 33? Perhaps he also lived until 34!

ANSWER: The YAD RAMAH explains as follows. The verse states that Achitofel hanged himself. Hence, he clearly did not live out his apportioned years. Since the verse says that people who act like Achitofel will not live half of their years, his apportioned life span could not have been more than 34 years, and if he killed himself *before* reaching *that* age, then he must have been 33 when he died.

QUESTIONS: The Gemara says that in the earlier generations, men were able to sire children as early as the age of eight. The Gemara attempts to prove this from Achitofel and his offspring, and from Kalev and his offspring. In both cases, we find that three generations were born in the span of 26 years. When we subtract two years for the combined length of the three pregnancies, we are left with 24 years, which means that the three fathers (of the three generations) must have been able to have children by the age of eight.

Why do three pregnancies take a span of two years? We know that a child can be born after only six months of pregnancy (Yevamos 42a). Even those who argue and maintain that a child cannot be born after six months agree that after seven months a child can be born (and six months, or seven months, times three, is less than two years).

RASHI (DH Dal) addresses this question. He explains that the Gemara indeed is only taking into account pregnancies of seven months. The eighth month of each pregnancy is to account for the days of Nidus and Taharah. Rashi seems to be saying that after each pregnancy the mother could not conceive a second child for at least another month, and therefore more time was necessary for the conception of the three generations of children.

Rashi's words are perplexing for a number of reasons.

First, the Gemara is not discussing a single woman who gave birth three times, but rather it is discussing three different women who bore children for their husbands. Why, then, should the next child to be born have to wait an extra month because the mother of the *first* child was Tamei for a month after her birth? (TOSFOS DH Dal)

Second, why would it be necessary to wait an entire month after birth in order to conceive again? We know that one week after a baby boy is born, the mother is Tahor to her husband mid'Oraisa (and she is only Asur to eat Kodshim)! (YAD DAVID, ARUCH LA'NER)

Third, the generations that followed Kalev bore children even before the Torah was given. Why should they have to wait a month after birth before having another child, if the Torah's laws of Nidus did not yet apply? (ARUCH LA'NER)

Fourth, why would it be necessary to add *three* one-month periods to the time of the pregnancies? Even if a one woman gave birth three times, she would only need to add *two* months between the three pregnancies, and the extra month after the third pregnancy would not be relevant (it would not be included in the two-year period necessary to bear three children)!

ANSWER: The ARUCH LA'NER points out that Rashi answers these questions in Yevamos (64b, DH Sheloshah Iburim). Rashi there explains that the extra month that is needed between each pregnancy for the days of Tum'ah and Taharah is not because the woman is Asurah to her husband during that time, but because a woman can become pregnant only "Samuch la'Veses," shortly before the onset of her menstrual period. Therefore, when a man marries a woman right after her menstrual period, she will not be able to conceive a child until after almost a month.

The Aruch la'Ner explains that this is what Rashi means here as well. If the men had each married their wives right before their menstrual period, it would have been possible for them to bear children in seven months. However, since they might have married them right after their menstrual period, we must add another month to each pregnancy, until the time arrives at which their wives could become pregnant.

This answers all of the questions that we asked, since the month is not related to the Halachos of Tum'ah and Taharah, and the month that is relevant and that must be taken into account is *before* each pregnancy (and not after, or between, each pregnancy).