QUESTION: The Gemara attempts to prove that a boy below the age of thirteen can sire children. The Gemara cites a Beraisa which derives from the extra letter Vav in the word "v'Ish" that even a boy over the age of nine is included in the category of "Ish." RASHI explains that the Beraisa refers to the word "Ish" in the verse that discusses the punishment of a man who lives with a Shifchah Charufah (Vayikra 19:20; see Background to Kidushin 23:11). The Torah states that the man's punishment is that he must bring a Korban Asham Shifchah Charufah, and the woman's punishment is Malkus.

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

(a) The RAMBAM (Hilchos Isurei Bi'ah 3:17, and Hilchos Shegagos 9:3) rules, based 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 that it is not possible that the Torah would obligate a minor to bring a Korban, when he is exempt from all Mitzvos. The Korban Asham Shifchah Charufah is a punishment, and a minor is not liable for any punishment.

The Rambam apparently distinguishes between punishments that are "bi'Yedei Adam" -- in the hands of Beis Din to administer, which do not apply to a Katan, and punishments that are "bi'Yedei Shamayim" -- in the hands of Hash-m, 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 accountable 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 causes no suffering to the person who is obligated.

It is still unclear, however, how the Torah can obligate a Katan to bring a Korban if the Torah does not address 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 adulthood and becomes obligated to observe the 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, when the Shifchah is a Ketanah and thus is not punished with Malkus, the man also is not obligated to bring a Korban. The Ra'avad questions whether the opposite is true as well: when the man is exempt from a Korban, is the woman exempt from Malkus?

In his commentary to the Toras Kohanim (Parshas Kedoshim 5, Beraisa 8), the Ra'avad writes that the woman is Chayav even when the man is Patur. He cites proof to this assertion from the Beraisa cited by the Gemara here, which also appears in the Torah Kohanim there. This is also the view of the RASH there.

According to this explanation, it seems that the Beraisa does not obligate the Katan for anything. Rather, the Beraisa means 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 applies to all of the prohibitions of Arayos and not only to the prohibition of Shifchah Charufah.)

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

How does the Ra'avad understand the Beraisa here which derives 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 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 quoted by the Beraisa here is not the verse which discusses Shifchah Charufah. Rather, it is the verse "v'Ish" (Vayikra 15:16) which discusses Tum'as Keri. This indeed is the way the Derashah appears in Nidah (32b), where the Gemara derives 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 teaches that he is Metamei in that manner only 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 the Toras Kohanim in favor of the 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 exempt.

(The Rambam apparently understands 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 liability depends on 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 the principle of "Rov" applies even with regard to Dinei Nefashos, cases of capital punishment. Perhaps the law should not follow the majority in such cases, because Beis Din is obligated to attempt to save the life of the defendant, as the verse teaches, "v'Hitzilu ha'Edah" (Bamidbar 35:25).

(a) How can the Gemara have any question about whether Rov applies with regard to Dinei Nefashos? The first Mishnah in Sanhedrin states that when a majority of the members of the court vote to execute someone, he is put to death even though there are judges who vote to exonerate him. Clearly, the principle of Rov applies to Dinei Nefashos, and the verse "v'Hitzilu ha'Edah" does not suspend the law of Rov 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), the murderer is Chayav Misah. If he kills with a sword, how can Beis Din be certain 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 Misah for killing him. It must be that Beis Din relies on Rov in order to convict a murderer, as the Gemara in Chulin (11b) proves based on this logic. (CHIDUSHEI HA'RAN)

(a) TOSFOS earlier in Sanhedrin (3b, DH Dinei) writes that the Gemara here is not asking whether or not the form of Rov known as "Ruba d'Isa Kaman" applies. This form of Rov certainly applies to Dinei Nefashos, as is evident from the questions posed above. Rather, the Gemara is asking whether or not the form of Rov known as "Ruba d'Leisa Kaman" applies in cases of Dinei Nefashos.

A "Ruba d'Leisa Kaman" is a majority in frequency -- something usually occurs in this manner. The majority is not present and countable, but is a predictable consequence of natural events. For example, there is a Rov that "most animals are not Tereifos." This Rov is not present, but there nevertheless exists a fact that most animals are born healthy.

A "Ruba d'Isa Kaman," on the other hand, refers to a situation in which the Rov is physically present. For example, when one piece of Tereifah meat became mixed with two pieces of Kosher meat, the Rov (the two pieces of Kosher meat) is present. This type of Rov is considered more powerful 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 as 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. The Gemara here knows that this type of Rov applies to Dinei Nefashos. The Gemara is asking whether the weaker form of Rov, "Ruba d'Leisa Kaman," applies to Dinei Nefashos.

(b) The CHIDUSHEI HA'RAN answers these questions in the same way in which the Gemara in Chulin rejects the proof that Rov applies to Dinei Nefashos. Perhaps Rov applies only in a case in which there is no other way to uphold the Halachah without relying on the Rov. However, when there are other options, Beis Din may not rely on the Rov. In the case of a Ben Sorer u'Moreh, Beis Din does not need to rely on the Rov because the person is given the status of a Ben Sorer u'Moreh up to three months after he reaches adulthood. Similarly, when a man lives with a Ketanah, Beis Din 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, Beis Din then may kill him). The Gemara here proves that even when it is possible to avoid relying on a Rov, Beis Din nevertheless may rely on a Rov in cases of Dinei Nefashos.

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 lifespan of 70 years, and since he did not reach half of the average age, he lived at most until 34. How, though, does the Gemara 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 lifespan 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, three generations were born within the span of 26 years. When two years are subtracted for the combined length of the three pregnancies, 24 years are left, which means that the three fathers (of the three generations) must have been able to have children at the age of eight.

Why do three pregnancies take a span of two years? The Gemara teaches that a viable 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 takes into account only pregnancies of seven months. The eighth month of each pregnancy is to account for the days of Nidus and Taharah. Rashi seems to understand 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.

1. 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)

2. Why would it be necessary to wait an entire month after birth in order to conceive again? One week after a baby boy is born, the mother is Tahor to her husband mid'Oraisa (she is prohibited only from eating Kodshim). (YAD DAVID, ARUCH LA'NER)

3. The generations that followed Kalev bore children 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)

4. 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 need only 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 an extra month is needed between each pregnancy for the days of Tum'ah and Taharah not because the woman is forbidden 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, another month must be added to each pregnancy, to account for the time that must pass until their wives can become pregnant.

This answers all of the questions above, since the month is not related to the laws 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).