Observation: This implies that Rabban Shimon ben Gamliel is not specifically referring to a baby that was (definitely, see Bach) carried for eight months, but rather to any baby.

Proof #1: This is also implied later when the Gemara tries to prove that an animal can be eaten when it is one day old. The Beraisa states that a calf that is born on Yom Tov can be slaughtered on Yom Tov (implying on that day). The Gemara pushes aside this proof by saying that it is discussing an animal that was clearly carried for a full term.

Proof #1 (cont.): If you will say that Rabban Shimon ben Gamliel is only referring to a baby that is certainly eight months old, the Gemara should have pushed this aside by saying it is discussing regular young (just born) animals (as opposed to animals that we know were not carried for a proper term).

Proof #2: Additionally, the Gemara later says that if he fell from a roof or a lion ate him (i.e. he did not die a natural death) everyone agrees that he was considered alive. If he was clearly carried for only eight months, how can we say he was considered alive?

Proof #3: Regarding all of the questions that the Gemara asks later we answer that the case is where we know he was carried full term.

Question: The Ri has difficulty with this from the Gemara in Yevamos (80b) that says, "What is an eight month old baby? Any baby that is not full term has the status of an eight month old baby. Rebbi says his hair and fingernails show...if they are finished we say that the baby was carried seven months (also considered full term) and he just stayed longer in the womb."

Question (cont.): The Gemara asks, Rabah Tosfa'ah ruled regarding a woman whose husband went overseas and who gave birth twelve months after he left that the child is theirs (and we assume the baby hung around the womb for an extra three months). Who is this like? It is like Rebbi, who says that a baby can stay in the womb for extra time.

Question (cont.): The Gemara says that since Rabban Shimon ben Gamliel holds that a baby can stay longer in the womb, as he says that any baby (even one born after eight months of pregnancy) that lives for thirty days is not a Neifel, Rabah ruled like Rebbi. This implies that the baby being discussed was certainly born after only eight months, as we say that he stayed in the womb as per the opinion of Rebbi. How does this Gemara know this is correct? Perhaps a child does not stay in the womb, and Rabban Shimon ben Gamliel is merely referring to any child (that he must live thirty days to prove he is not a Neifel)?

Answer: The Ri says that it must be that Rabban Shimon is also referring to a case where the baby was carried for eight months.

Proof: This is apparent from the Tosefta in our chapter that states Rabban Shimon ben Gamliel's statement after the argument between Rebbi and the Rabbanan stated in Yevamos (ibid.). Rabban Gamliel is referring back to the argument between Rebbi and the Rabbanan that is referring to an eight month pregnancy.

Question: How do we know in our Gemara that Rabban Shimon ben Gamliel holds that any baby that does not live for this amount of time is considered a possible Neifel? Perhaps he holds they are considered regular healthy babies, and he is not discussing regular babies (carried full term), as he is only discussing babies clearly born after eight months?

Answer: We deduce from the fact that he says, "Any baby that lives etc." "Any" implies that he includes regular babies as having to live thirty days to prove they are not a Neifel. If they do not live thirty days, they are a possible Neifel.

Answer (cont.): When the Gemara later asks whether the Rabbanan argue on Rabban Shimon ben Gamliel, it is regarding regular babies. The case of a baby that was clearly only carried for eight months is stated explicitly in the Tosefta.

Question: How do we extrapolate later from the fact that Rav Yehudah says in the name of Shmuel that the Halachah follows Rabban Shimon ben Gamliel that they argue regarding all kids? We should say that they do not argue regarding all kids, and Rav Yehudah only ruled this way regarding a baby that was only carried for eight months!

Answer: If this was the case, he should have ruled like Rebbi.

Implied Question: One cannot say that he did not say the Halachah is like Rebbi because he requires signs such as his hair and fingernails being formed, as opposed to Rabban Shimon who does not require these signs. (Why not?)

Answer: This is because it is obvious that a baby born after eight months that does not have hair and fingernails already formed cannot live according to everyone. Since Rav Yehudah ruled specifically like Rabban Gamliel, it is apparent that he is talking about any babies, and that he is ruling completely like Rabban Gamliel.

Observation: Now (after what we have stated) we do not even need to deduce that Rabban Shimon is discussing all babies from the word "Any," as we can prove in any event that he is referring to all babies as the Ri has proven.

Text: This is the text of the Aruch, who understands it is a term used to mean provisions and food.

Question: Rebbi Moshe from Beiheim asked why shouldn't she do Chalitzah? We say in Yevamos (23a) that if someone is a doubtful (i.e. possible) Chalutzah and someone already married her, she is permitted. This is as the Mishnah says there that if they already married, we do not separate them.

Question (cont.): We say in the Gemara that Shila taught that this is even if both of them (in a case where both new husbands of two separate women) are Kohanim (and one of them is clearly marrying a Chalutzah, though we are not sure which one). Why? It is because the prohibition of Chalutzah to a Kohen is only Rabbinic in nature, and they did not make a decree if she was only a doubtful Chalutzah.

Answer: Rebbi answers that when our Gemara says she does not do Chalitzah it is not because if he did Chalitzah he would have to divorce her. Rather, since it is possible to not do Chalitzah it is better that she not do Chalitzah in order not to cause rumors regarding the lineage of her children.

Proof: This is similar to what we find in Yevamos (119a) that the Mishnah says if a woman's husband and her co-wife travel overseas and people come and tell her that her husband died, she should not remarry nor do Yibum until she finds out whether he co-wife is pregnant.

Proof (cont.): The Gemara asks, does she really remain unable to remarry forever? Zeiri says she must wait three months because of her situation (as every woman must wait three months) and nine because of her co-wife in any event. This means that if her co-wife is pregnant and she gives birth she becomes permitted to remarry without Chalitzah. If he co-wife is not pregnant, she becomes able to remarry after Chalitzah.

Proof (cont.): Rebbi Yochanan says that while she must wait three months due to her situation, she indeed cannot remarry forever due to her co-wife. The Gemara asks, why isn't Chalitzah done, as whether her co-wife is pregnant or not she ends up being permitted! The Gemara answers this is a decree in case the child of the co-wife is a viable baby, as Beis Din will have to announce that she really is not a Chalutzah.

Proof (cont.): The Gemara asks, why don't we merely require an announcement from Beis Din? The Gemara answers that perhaps someone will be present at the Chalitzah but will not hear Beis Din's announcement, and they will say that a Chalutzah is being permitted to marry a Kohen.

Proof (cont.): This implies that we cause this woman to be an Agunah forever since this would possibly require us to make an announcement to the Kohanim that her Chalitzah was not required. We therefore do not allow her to perform Chalitzah. Certainly so in our case we should have her refrain from doing Chalitzah, as there is even more of a suspicion that people might come to say that we are permitting a Chalutzah to marry a Kohen!

Explanation: If she is the wife of a Kohen she should not perform Chalitzah, as he is considered alive even if he does not live for a long time as is the opinion of the Rabbanan in Yevamos (36b).

Implied Question: We said earlier that the law follows the opinion of Rabban Shimon ben Gamliel (that he must live for thirty days to be considered alive, unlike the Rabbanan).

Answer: This is specifically regarding the wife of a regular Jew. However, regarding the wife of a Kohen we do not rule like Rabban Shimon ben Gamliel to require Chalitzah, since she is a wife of a Kohen.

Explanation: The Gemara currently implies that the derivation is from the words "Zachar" and "Nekeivah," and not from the extra "Heh" in the word "ha'Zachar" or "v'Im Nekeivah."

Proof #1: If not, what is the Gemara's question later that why should Milah be different? Why should we require a Pasuk regarding Milah to include an Androgynus? On the contrary, we should require a Pasuk to exclude him just as we require a Pasuk to exclude him regarding Erchin! It must be that it is not from the extra letters or words that we exclude him from the Erech of a man or woman, but rather from the implication of the words "Zachar" and "Nekeivah." This is why we require a Pasuk regarding Milah to include an Androgynus.

Proof #2: This is also implied regarding putting the Mei Chatas (special water used for mixing with the ashes of the Parah Adumah) on the ashes of the Parah Adumah, where we find an Androgynus is excluded without any extra letter/word being stated in the Pasuk. This is apparent in Yoma (43a), as the Gemara quotes a Mishnah as stating that everyone is fit to mix the water with the ashes etc. The Gemara asks, how we do know a woman cannot do so? This is because the Pasuk says, "And he will put" and not "and she will put." This same Pasuk is used to exclude an Androgynus.

Question: Rebbi has a difficulty. In Nidah (28b), we quote the teaching regarding Erchin and say that the reason is because the Torah said, "ha'Zachar v'Im Nekeivah." This implies that from "Zachar" and "Nekeivah" alone we would not have excluded Androgynus. This implies that the derivation is from the "v'Im" and the extra "Heh" in "ha'Zachar!"

Answer: Rebbi answers that certainly the derivation is from the word "v'Im" and the extra "Heh," as implied there.

Answer (cont.): The reason why we need the Pasuk, "Kol Zachar" regarding Milah to include an Androgynus is so that we should not learn from Milah to exclude an Anrogynus. This is why regarding mixing the special water and ashes of the Parah Adumah we do not require a Pasuk to exclude Androgynus, as we indeed derive from Erchin. We do not derive from Milah to include Androgynus, as it is more understandable to derive stringently from Erchin and to say the Androgynus may not mix the water and ashes.

Question: Rav says in Nidah (ibid.) that if a Tumtum or Androgynus see a white and a red discharge at the same time, they are not liable for going into the Mikdash while impure but they cause Terumah to be burned (if they touch it, as they are certainly impure whether they are a man or woman).

Question (cont.): The Gemara there derives that he is exempt from entering the Mikdash because the Pasuk states, "mi'Zachar Ad Nekeivah Teshaleichu" implying that a person is only liable if they are either clearly male or clearly female, not if they are a Tumtum or Androgynus.

Question (cont.): The Gemara there asks, is it true that whenever the Pasuk says "Zachar u'Nekeivah" that it excludes Tumtum and Androgynus? Doesn't the Beraisa say etc. that the reason is because the Pasuk says, "ha'Zachar v'Im Nekeivah etc.?"

Question (cont.): What is the Gemara's question? Without the extra Pasuk we would also exclude Tumtum and Androgynus since we derive from Erchin!

Answer: We derive from Erchin stringently in a case like the mixing of the water and ashes of the Parah Adumah. However, we would not derive from Erchin in a lenient fashion in order to make an Androgynus who saw both a white and red discharge exempt from being liable for entering the Mikdash while impure! Rather, we would derive from Milah in a stringent fashion that he should be liable for entering the Mikdash after seeing a white and red discharge.

Question: However, Rebbi has a difficulty from the Beraisa in Bechoros (42a), "ha'Zachar - not a female. When the Pasuk later says, "Zachar" (again) when it is (seemingly) unnecessary (to exclude a female as it has already been stated), it must be excluding a Tumtum and Androgynus.

Question (cont.): Why do we need a special Pasuk to exclude an animal that is either Tumtum or Androgynus from being sanctified as an Olah? We should know this because we should derive stringently from Erchin, meaning that they are not holy and that another animal has to be brought as a sacrifice.

Answer #1: The Ri is pressed to say that on the contrary, this would be a leniency! If he only finds an Androgynus animal to bring as a sacrifice, he will end up bringing nothing.

Proof: We find this type of logic in Sukah (36b). The Beraisa states that Rebbi Yehudah says that Sechach can only be from the four species used in the Mitzvah of Lulav. This is based on a Kal v'Chomer. If Lulav which does not apply at night as it does during the day...they said to him, any Kal v'Chomer that starts out stringent and ends up causing a leniency is not a Kal v'Chomer. This means that if a person does not find enough of these four species for his Sechach, he will sit without a Sukah!

Question: However, this is not exactly like the case in Sukah (ibid.). The Kal v'Chomer in Sukah will certainly cause a leniency, as if he will not find enough of the four species for his Sechach during Sukos the Mitzvah of Sukah will pass, and he cannot make it up even if he finds more after Sukos. However, regarding using an Androgynus animal for a sacrifice, even if he currently only has an Androgynus animal he will eventually find a regular animal. If so, the Kal v'Chomer is consistently stringent.

Answer #2: Rebbi also answered that the Pasuk of "ha'Zachar" is stated regarding an Olas Nedavah and not regarding an obligatory sacrifice. Therefore, it is not possible to say that it is a problem that he will not bring anything since he is not obligated to bring anything in the first place.

Question: The Gemara in Bechoros (42a) says that one should take the word "Tumtum" out of the Beraisa. This is as the Mishnah says there (41a) that a Tumtum and Androgynus is not slaughtered as a sacrifice in the Mikdash nor is it a sufficient blemish to cause a firstborn animal to be able to be eaten. Rebbi Yishmael says there is no greater blemish than this. The Chachamim say that it does not have the sanctity of a firstborn animal, and it therefore can be sheared and worked.

Question (cont.): The Gemara says that Rav Chisda says this argument in the Mishnah is regarding an Androgynus. However, regarding a Tumtum everyone understands it is a doubt and it therefore is holy due to this doubt. Rava asked him that if this is so, it should be valid for Erchin. Why, then, does the Beraisa say, "ha'Zachar - excluding a Tumtum and Androgynus?" The Gemara answers that one must take away the word Tumtum.

Question (cont.): The Gemara implies that it asks as follows: Why does the Beraisa say, "ha'Zachar - excluding a Tumtum?" If it is a doubt, do we need a Pasuk to remove a doubt? (We would be lenient anyway!)

Question (cont.): What is the Gemara's question? It is understandable when the Gemara earlier asks, "Do we need a Pasuk to exclude a doubt?" This is a good question, as there is no reason to say that the Pasuk is unsure whether the animal is male or female, as it is clear to the Torah whether it is male or female.

Question (cont.): If it is true that the Pasuk considers it male, why should it exclude it to say that it cannot be dedicated as an Olah (which is male)? If the Pasuk considers it female, it does not have to exclude it.

Question (cont.): However, a Tumtum certainly requires a Pasuk, as some of them are male and some are female. It is definitely understandable that the Pasuk should exclude a Tumtum, since we are unsure if it is male or female.

Proof #1: This is similar to what we find regarding Ma'aser Beheimah that the Mishnah in Bechoros (58b), quoted in Bava Metzia (6b), says that if one of the counted animals jumps into the ones that have not been counted they are all exempt from Ma'aser Beheimah. The Gemara there explains that this is because the Torah requires the tenth to certainly be the tenth, and not be only possibly the tenth (which it is since we do not know if one of the nine counted before it is the animal that was already counted which cannot count again towards Ma'aser Beheimah).

Proof #2: This is similarly true in Negaim regarding a case where we are unsure whether the Baheres appeared before the white hair or the white hair appeared before the Baheres. We derive in Nazir (65a) that when we are unsure he is ruled to be pure, as the Pasuk says, "to make him pure or impure." Since the Pasuk opened with being pure, we presume he is pure unless he is clearly impure.

Answer: Rebbi understands when Rav Chisda says that a Tumtum is holy because its status is doubtful, he means that as long as we can establish the Pasuk to exclude Androgynus as the Rabbanan earlier excluded it from "ha'Zachar," we should not establish it is excluding Tumtum. This is because if it is male there is certainly no need to exclude it, and it if it is female it does not require a Pasuk.

Answer (cont.): This is why the Gemara is asking a good question from Erchin, as we should not exclude Tumtum since we can say the Pasuk is excluding Androgynus.

Implied Question: We cannot say, "v'Im Nekeivah" is not needed to exclude Androgynus, as we already excluded it from "ha'Zachar." (Why not?)

Answer: I would still think that just because the Pasuk excluded it from being considered to have the value of a man, it is not worse than a woman and it should therefore have the value of a woman. This is why "v'Im Nekeivah" is required to say that it does not even have the Erech of a woman, and is why Tumtum is not supposed to be stated.

Implied Question: In Chagigah (4a), the Gemara states "Zechurcha - excluding a Tumtum and Androgynus." The Gemara in Bechoros (42a) does not ask a question from this teaching on Rav Chisda that it would seem Tumtum should not be stated here as well. (Why not?)

Answer: Rebbi understands that this is because there is an extra Pasuk that excludes a Tumtum, as it says "Zechurcha" twice.

Implied Question: The Gemara in Chagigah (ibid.) asks that it is understandable that we require a Pasuk to exclude an Androgynus, as otherwise I would think that since it does have a male side of him he should be obligated. The Pasuk therefore teaches us that he is considered a being in a separate category and is not obligated. However, a Tumtum has a doubtful status. Do we require a Pasuk to exclude a doubtful status? The Gemara answers the case is where his testicles are outside (but there is no clear sign of an organ). (What is the Gemara's question? Didn't we say earlier (a, 5.) that we should need a Pasuk to exclude a Tumtum?)

Answer: Rebbi explains that the Gemara is asking a good question. In Chagigah (4a), we would not require a Pasuk to exclude a Tumtum, as obviously without a Pasuk he would not bring an Olas Ri'iyah. How could he? He could not even bring one due to this doubt by making a condition that if he is a woman it should be an Olas Nedavah, as an Olas Ri'iyah does not require Semichah. It is therefore forbidden to do Semichah if it is indeed an Olas Ri'iyah, as one may not do work (i.e. lean on) with Kodshim. [If it is an Olas Nedavah, it requires Semichah.]

Answer (cont.): If he will not do Semichah, it is better that he should not bring it.

Proof: This is as we have found regarding a Korban Pesach in Pesachim (88b). The Beraisa there states that if many people had mixed the skins of their Korban Pesach together, and they find that one of the skins has a Yabeles (indicating one of their sacrifices had a blemish and was therefore invalid), they should all be placed where the invalid sacrifices are burned and they are exempt from bringing a Pesach Sheini etc.

Proof (cont.): The Gemara then asks, why don't we have each of them (find and) bring an animal that was dedicated but not brought as a Pesach (and make a condition that if theirs was the one with the blemish this animal should be their Pesach Sheini)? The Gemara answers that this is due to a problem with the Semichah, as a leftover Pesach requires Semichah while a Pesach does not require Semichah. This implies that because of a problem with Semichah they refrain from bringing a Pesach. If it prevents the bringing a Pesach, it certainly would similarly prevent the bringing of an Olas Ri'iyah (on condition)!

Implied Question: When the Gemara in Bechoros (42a) asked its question on Rav Chisda, it could not have given the answer given in Chagigah (4a) that the case is when its testicles are outside. (Why not?)

Answer: If this was the case it is clear that the Pasuk would not have to exclude it!