by R. Gidon Rothstein
The category of the half-slave provides a good test case for many halachic issues, because the person is partially a Jew and partially a servant. One way this can happen is if partners own a servant together, and one frees him or her.
The idea has inspired significantly more halachic discussion than I suspect it deserves in terms of frequency of occurrence. (I have heard people say—surely an exaggeration– Minhat Hinuch built his whole book on this nafka mina, as a practical consequence to justify discussion of almost every distinction he suggested. It is a counterexample to my usual assumption, in We’re Missing the Point or As If We Were There, and my forthcoming The Judaism of the Poskim, that what we discuss most often is also what we care about most).
Peri Megadim’s first example wonders about the role of a half-servant who impregnates an ordinary Jewish woman. Were he a full servant or non-Jew, there would be no question; here, since his freed side could have married this woman, we might think the child’s identity follows the father’s (as it does when the father is a full Jew, such as in terms of whether the child is a kohen).
The father’s eved side could not have created a marriage, so it fits the Gemara’s rule that it has no impact on the child’s status. If so, were a full-fledged Jew to impregnate a hatzi shifhah/hatzi bat horin, a woman in partial servitude limbo, the child would follow her and have this half-status as well, since her shifhah side could not form kiddushin with the Jew, and that part of her would produce an eved or shifhah child.
Next, he wonders how a half-freed Jew like this affects yibum. Were a Jew to pass away without children, and the only brother is a half-eved, is yibum or halitzah a possibility and/or necessity? Part of the answer depends on whether this half-eved has any inheritance rights, because the Torah defines the yibum brother as one who would share inheritance. Peri Megadim seems to think the half-eved brother’s free side should inherit, and therefore halitzah is needed (yibum is more complicated, because she cannot marry the half-eved side).
Similarly, if the deceased had fathered a half-eved or half-shifhah, the child could count as issue, and exempt the widow from yibum or halitzah.
Peri Megadim sends us to Shulhan Aruch, who rules out a child from a shifhah both for counting either as a brother or a child for yibum purposes. [R. Eisenberger explains he was noticing Shulhan Aruch did not mention the half-eved case here, although he does refer to it elsewhere, implying such a child is Jewish enough to count for these purposes.]
Pushing Aside a Prohibition
Peri Megadim offers a reason to think yibum should be allowed despite the usual prohibition against marrying someone in servitude (rishonim disagree on whether the prohibition is de-oraita, Biblical, a matter of lo yihyeh kadesh mi-Bnei Yisrael, translated as there shall not be a cult prostitute among Jews, but taken halachically to ban certain types of promiscuity (Rambam thought non-marital sexual intercourse among freed Jews violated this verse in Devarim 23;18, and the application to people in servitude was rabbinic).
Usually, when an obligation is blocked by an ordinary prohibition in the Torah, we say ati aseh ve-dahei lo ta’aseh, an obligation pushes aside the prohibition. Why wouldn’t the obligation of yibum push aside this prohibition, wonders Peri Megadim (the question does not arise with a full eved, because we do not see them as included in Jewish lineage). For Rambam, who thought the prohibition rabbinic, the question is even stronger.
Tosafot Gittin 41a asked a similar question when the Gemara assumes a half-eved has no one to marry; they wonder why he cannot marry a half-shifhah, with the obligation of procreation pushing aside the prohibition. Peri Megadim infers fathering half-servant chidlren does not fulfill the obligation, although he is unsure why.
The Strength of the Freed Side
The half-slave is also half-free, and Peri Megadim considers where that might help. For example, an ordinary shifhah freed past the age of three is considered not a virgin for marriage purposes (the Gemara assumed avadim and shefahot were wildly promiscuous, a topic for another time), but if she is half-free, perhaps her free side was more careful with her sexuality, and she can be considered not to have had relations with anyone.
The Torah treats adultery from a marriage where she is a half-shifhah as a plain prohibition rather than the capital crime adultery usually is. That being so, Peri Megadim wonders whether an affair would prohibit her from staying with her husband, as with an ordinary marriage. In addition, regular Jews are generally assumed to be kesherim, trustworthy in many areas of halachah; would that be true for a hatzi ben horin, a half-free Jew?
Many such questions, for which he has no evidence to provide answers, so he moves on, as will we.
Mitzvah observance is complicated for this half-freed Jew, because his/her freed side is fully obligated, but runs into trouble. Such a Jew could not blow shofar for himself, because the servant side is also blowing; he is not clearly included in the obligation of tzitzit, because the Torah refers to Benei Yisrael, which might mean full-fledged Jews. On the other hand, we usually assume anyone who must observe the prohibition against shatnez must also wear tzitzit (because the verses are next to each other), so maybe this person is included.
Lots to discuss, few ways to come to well-sourced conclusions.
The next category we can dispense with fairly quickly, because it does not reflect a known condition today. The tumtum was someone whose gender was unknown because it was covered. It seems a flap of skin covered the entire genital area, and could theoretically be torn open to discover the person’s gender (I think it wasn’t always done because there was some danger involved). The tumtum might be either a man or a woman, and it is a case by case question (as opposed to the next category, the androginus, as we will see next time).
The tumtum must keep all mitzvot as if he were a man, although courts will not punish transgressions that do not apply to women. Even the rabbinic pressure brought to bear on Jews who refuse to fulfill obligations will not be applied to them, because courts only do so when they are certain the person is included in the obligation in question.
So a tumtum should wear tzitzit, for Peri Megadim’s example, but a court would not compel it with makkat mardut, rabbinic lashes. In addition, while there is some discussion about whether it counts as yuhara, arrogance, for a woman to wear tzitzit [I think the yuhara is her taking on additional obligations, as if she is confident she has fulfilled all her existing ones], the tumtum has none of that, because s/he must wear the tzitzit in case.
For most issues, should the tumtum be torn open (the Talmudic phrase for how the person’s gender would be ascertained) and turn out to be a male, he is from then on a full male. There is some question about whether he could then count as the first-born for halachic purposes, where we might require a bechor vadai, someone who was known as a male from birth, and also some question as to whether the berit milah, circumcision, for such a baby could be done on Shabbat. [Normally, a baby born on Shabbat has a berit the next Shabbat; for this baby, since at birth he was not known to be a boy, it is not clear we would push aside Shabbat for the berit.]
Ways of Being Unknown
Some sources refer to a tumtum with evidence of masculinity insufficient to clinch the question, and he might have slight halachic differences from an ordinary tumtum. For as long as the tumtum is in a position of doubt, s/he cannot serve as the agent for someone’s observance at a higher level of obligation (cannot blow shofar for men, for example).
Peri Megadim suggests Birkat Ha-Mazon might be an exception. Women’s obligation in Grace After Meals might be Biblical—it is an unresolved question– and this tumtum might be a man, creating two pieces of doubt. We are often allowed to ignore such “double doubts,” sfek sfeka. Peri Megadim therefore thinks a tumtum could recite Birkat Ha-Mazon on behalf of a man.
The tumtum’s unknown status means witnesses cannot warn a tumtum about to violate the Torah in a way only relevant to men. A court would not punish a tumtum kohen who voluntarily became ritually impure, therefore, because the witnesses did not the tumtum’s status.
[He says this despite his general view hatra’at safek shemei hatra’ah, if witnesses give warning where they cannot be sure the person is about to violate the Torah, the warning is effective, allows the court to punish the perpetrator. Here, the doubt is about the nature of the sinner, and Peri Megadim thinks that clearly cannot be hatra’ah.]
On the other hand, after the tumtum finds out he is a man, Peri Megadim assumes he would be allowed to being an olah offering to atone for his failure to fulfill the obligation to stay away from such ritual impurity, because he would now know, retroactively, he had sinned.
As a final complication, he points out Rashi seems to think the tumtum could also not help women fulfill their obligations, because Rashi requires the person’s status to be known to be an agent for anyone. Although the tumtum has at least the woman’s level of obligation, Rashi thinks the uncertainty means s/he cannot step in without more information.
In between cases, the half-servant and the tumtum make for complicated law. And the androginus, our first category for next time, will continue the pattern.