Gemara

Question (R. Zeira): If one said 'it is Alai (encumbent upon me) to bring an Olah, a pigeon or dove', and he brought a bird at the beginning of yellowing of each species, did he fulfill his vow?

Are we in doubt (if this age is considered young or old), and he fulfilled his vow with one or the other?

Or, is this an intermediate age that is Pasul for both?

Answer (Rava - Beraisa): These exclude the beginning of yellowness, which is Pasul for both.

This is like the latter understanding. If they were Pesulim only due to Safek, we would not need a verse to disqualify this!

Rejection: Really, we are in doubt which is valid. The verse is needed to disqualify a Nirva (a bird with which a man had relations) and a Ne'evad (worshipped).

Bechoros 41b (Beraisa): (An Olah must be a) "Zachar", and not a female.

Another verse requires Olah to be "Zachar". It excludes Tumtum and Androginus.

This is unlike the first Tana of our Mishnah. He is unsure about the gender of Androginus. A verse would not teach about such a Safek!

42a (Beraisa): "Ha'Zachar" excludes Tumtum and Androginus (from Erchin).

(Rav Chisda): We must delete "Tumtum" from the text of the Beraisa.

Nidah 28a (Rav): If a Tumtum or Androginus (Ploni) saw Keri or blood, and Ploni entered the Mikdash and touched Terumah, Ploni is exempt. We do not burn the Terumah. If Ploni saw Keri and blood and touched Terumah, we burn the Terumah.

If Ploni entered the Mikdash, Ploni is exempt. "Mi'Zachar Ad Nekevah Tishalechu" commands a definite male or female, but not a Tumtum or Androginus.

Chagigah 4a: 'Zechor' excludes women from the Mitzvah of Re'iyah (entering the Mikdash of festivals). "Zechorcha" excludes a Tumtum and Androginus.

Question: Granted, we need a verse to exempt an Androginus. Since he has male genitals, one might have thought that he is obligated;

However, a Tumtum is a Safek. Do we need a verse to exempt a Safek?!

Answer (Abaye): The verse teaches about when we can see that he has male genitals, just they are covered.

Rishonim

Rif (Hilchos Ketanos 1b and Rambam Hilchos Evel 2:13 and Rosh Hilchos Tum'ah 6): We learn from "Lah Yitama" that one becomes Tamei for a Vadai relative, but not for a Safek.

Rambam (ibid.): Therefore, if we do not know if a woman became pregnant from her first husband or her second husband, or if babies became mixed up, they do not become Tamei for a Safek. A man is not Metamei for a wife if it is a Safek whether he divorced her.

Oneg Yom Tov (71): The (Rif and) Rambam is (are) based on a Beraisa. We learn from this that the Torah is lenient also about a Safek Mitzvas Aseh. How do we know that the verse teaches not to be Metamei for a Safek? Perhaps one may be Metamei for a Safek, like all Safek Isurim, and the verse exempts from the Chiyuv to be Metamei! We hold that one is obligated to be Metamei (for Vadai relatives). Rather, we must say that the Torah is lenient also about a Safek Aseh, so no verse is needed for this.

Tosfos (22b DH Itztrich): The Gemara requires a verse for a Safek in which they are not always the same. In Chagigah 4a, we ask why Zechurcha is needed to exempt a Tumtum, even though they are not all the same! This is because even without the verse, we would exempt him from Re'iyah (appearing in the Mikdash with a Korban), for he cannot do Semichah (since if he is a female, he uses (supports himself on) a Korban not for a Mitzvah). Even though Semichah is not Me'akev, l'Chatchilah it is needed.

Turei Even (Chagigah 4a DH Itztrich): Rashi explains that the Gemara asked why a verse is needed to exempt a Tumtum. There was no reason to obligate him! This is difficult. Without a verse he would be liable, for we are stringent about a Safek Torah! Since they are not all the same, it is not difficult if a verse exempts them! Even though the Rambam holds that it is only mid'Rabanan that we are stringent about a Safek Torah. If so, this is not difficult. However, Chachamim of the generations disagreed. Surely, we are stringent about a Safek Torah. Tosfos (Chagigah 4a DH Ela) said that since women are exempt, a Tumtum could not bring Olas Re'iyah, for perhaps it is Chulin b'Azarah. This is difficult. Perhaps the verse exempts from Re'iyas Panim (entering the Azarah), even if we already knew that a Tumtum is exempt from Olas Re'iyah! If Tosfos held like the Rambam, that one who entered the Mikdash without a Korban did not fulfill Re'iyas Panim, this would answer the question. However, it seems that Tosfos holds that he fulfilled the Mitzvah, just he transgressed a Lav of entering empty (without a Korban). If he is a female, he has no Lav of entering empty. If he is a male, the Aseh of Re'iyas Panim overrides the Lav! Really, in the Mikdash we do not say Aseh Docheh Lo Sa'aseh (Zevachim 97b). Therefore, no verse is needed to exempt him. Tosfos asked that he could bring a Korban and stipulate that if he is a woman, it is a Nedavah. Even according to the opinion that that forbids Nedavos on Yom Tov, he could bring the next day! However, if we say that the other days are Tashlumim (compensation) for the first day, since he could not bring on the first day, he does not bring on later days.

Turei Even (DH Od): Tosfos also answered that we should not enact to bring a Korban without Semichah. When a Korban Pesach was found to be Pasul and we are unsure from which group it was, we do not say that they bring Pesach Sheni and stipulate 'if we are exempt, this is a Shelamim', for the groups that had a Kosher Korban would now Vadai be Mevatel the Mitzvah of Semichah. Here, perhaps he is a female, so there is no Bitul of Semichah! Even if you will say that even one person who was unsure if he was Yotzei Pesach may not bring Pesach Sheni on Tanai, even though it is a Safek if he will be Mevatel Semichah, that is because perhaps he is Mevatel Semichah without doing a Mitzvah. Here, if the Tumtum is a male, he is Mevatel Semichah amidst the Mitzvah of Re'iyah. Why should we be Mevatel Re'iyah due to Semichah, rather than be Mevatel Semichah due to Re'iyah? Even though Bitul of Re'iyah is passive, and Bitul of Semichah is through an action, when blood that needs one Zerikah was mixed with blood that requires four, R. Yehoshua says that we throw it once. We do not say that it is better to be passive and not to Zerikah, to avoid overt transgression of Ba'al Tigra. Perhaps we can say that we do not need a verse to exempt a Tumtum from bringing on Tanai, since he can fulfill Re'iyah only through Bitul of Semichah, and Re'iyah is no stronger than Semichah.

Turei Even (DH Mihu): The Gemara exempts a half slave from "ha'Adon". Why was this needed? He is worse than a woman. Vadai he cannot do Semichah, for half of him is Vadai exempt! We say that he cannot blow Shofar for himself, since half of him is exempt. Likewise, his slave half prevents him from Semichah! In the Mikdash, an Aseh (Re'iyah) does not override a Lav (Avodah with Kodshim)! However, we can say that Semichah is different, for it always overrides Avodah with Kodshim. Therefore, it overrides even for a half-slave. Do not say that he never does Semichah due to his slave half. However, it is difficult it say that we do not need a verse for Tumtum, for we already exempt him due to Semichah. A Mishnah (Menachos 93a) teaches that a blind person does not do Semichah. If so, we need a verse to exempt a blind Tumtum (who is totally exempt from Semichah) from Re'iyah! This is not difficult for the opinion that learns that a blind person is exempt from Olas Re'iyah. It is difficult for the one who learns from elsewhere.

Turei Even: In any case it is difficult why the Gemara asks why we need a verse to exempt a Tumtum. According to the opinion that all days are Tashlumim for the first, we need a verse to exempt one who was torn after Yom Tov and found to be a male, just like we exempt one who was lame and healed after Yom Tov. And even according to the opinion that obligates even one who was exempt on the first day, and he was forbidden to bring due to Semichah, we need a verse to teach that if he transgressed and brought a Korban Re'iyah, and later he was torn and found to be a male, he is obligated, for he was not obligated and hence not Yotzei beforehand. If one who is sometimes crazy ate Matzah when he was crazy, he was not Yotzei, and he must eat again when he regains sanity.

Note: Yevamos 78a says that the Torah would not teach a Heter (e.g. a Mitzri Shelishi) that comes only through an Isur. The Turei Even says that we need a verse to teach that even if he is transgressed, he is still obligated.