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The Israel Koschitzky Virtual Beit
Midrash
GEMARA KIDDUSHIN Shiur #6:
Aylonit based on a
shiur by Rav Yair Kahn
The gemara (4a) derives that a Jewish maidservant must be freed both at
the initial phases of physical maturity, called na'arut (puberty), as well as at
the more advanced stage of maturity - bagrut, which takes place six months
later. The gemara poses the obvious
question: If the maidservant was previously set free at na'arut, the requirement
to free her at bagrut is unnecessary.
Abbaye responds that the relevance of this halakha is limited to the
special case of a girl who fails to mature physically - called an aylonit. Such a girl achieves the status of
bagrut directly, without passing through the initial phase of na'arut. The gemara then challenges Abbaye: - the
halakha requiring the freedom of a maidservant upon reaching bagrut is obvious
and therefore needs no source! In
conclusion the gemara derives a different halakha altogether: an aylonit may be
sold as a maidservant despite the fact that she lacks the potential to be freed
at na'arut. In this shiur, we will
analyze the concept of aylonit, and through this exceptional case, attempt to
gain a better understanding of the halakhic definitions of adulthood. Before proceeding in our analysis of
this sugya, however, we will present certain background information that is
essential.
According to the gemara in Nidda (47b), a woman cannot be clearly
categorized as an aylonit until the age of twenty, and even then, only upon
displaying certain physical signs that indicate that she will never
develop. (If these signs do not
appear, she cannot be established as an aylonit until the age of thirty
five.) Secondly, there is a
controversy between Rav and Shmuel (Yevamot 80a) regarding the culpability of an
aylonit who transgresses the law prior to the age of twenty. Their argument revolves around the
determination of the exact point at which an aylonit is designated an
adult. According to Shmuel, she
enters adulthood from the time she is recognized to be an aylonit, namely at the
age of twenty, whereas prior to that she retains the status of a minor. Rav argues that an aylonit achieves the
halakhic status of adulthood retroactively. Most Rishonim side with the opinion of
Rav, that at the age of twenty the woman is defined as an adult
retroactively. (This is consistent
with the rule that the halakha follows Rav regarding issues of issur, ritual
laws.) Armed with this information,
we can return to the discussion of our sugya.
According to the conclusion of the gemara, it was necessary to prove that
an aylonit can be sold as a maidservant.
The commentaries posed the following question: since an aylonit remains
undetected until the age of twenty, and at that point she achieves the status of
bagrut and is freed from servitude, when can we find a case of an aylonit who
can be sold as a maidservant?
Furthermore, the gemara originally understood that an aylonit who was
sold as a minor (below the age of twelve) will be freed upon her bagrut, at the
age of twenty. However, since more
than six years necessarily pass from the time of the sale until her bagrut (and
a Jewish slave or maidservant is freed automatically upon the passage of six
years), the application of this halakha is nonexistent.
Various answers were given by the Rishonim to these questions. Most answers revolve around variant
understandings of Rav’s opinion, that at the age of twenty the woman is
established as an aylonit retroactively.
The Ra'avad (as quoted by the Ramban) claims that the woman is declared
retroactively as an aylonit from the time she displays the various physical
signs indicating that she will not mature.
Take the case, for instance, of a girl who displayed the physical signs
of an aylonit at the age of fifteen.
Such a girl, if sold before reaching the age of twelve, would, upon
reaching the age of twenty, be established as a free woman retroactively from
the age of fifteen, long before going free due to the passage of six years. The Ramban, although agreeing with the
Ra'avad that the status of aylonit is achieved retroactively, argues that this
status is attained at the age of twelve and a half, regardless of the point at
which physical signs appeared.
However, Rashi, the Rama and many other Rishonim claim that according to
Rav the status of aylonit is retroactive from age twelve. Tosafot Rid, on the other hand, ignores
Rav totally, and explains the gemara by saying that the case discussed is of a
girl sold at the age of seventeen; she is turned free at twenty upon becoming an
aylonit.
We will now attempt to define precisely the source of the dilemma, and
the halakhic solutions offered regarding the adulthood of an aylonit. We will start by posing the following
questions: 1.
Why does the Tosafot Rid ignore Rav's opinion? 2.
We noted three variant opinions regarding when to retroactively establish
the status of aylonit: twelve, twelve and a half, and the appearance of physical
signs indicating that the woman is an aylonit. Around what issue does this controversy
revolve?
Why does the Ritva in Kiddushin quote the Ramban's opinion that the
status of aylonit is applied retroactively from twelve and a half, while in
Yevamot he only mentions the opinion that this status is conferred retroactively
from the age of twelve?
It seems to me that a careful reading of the Rambam will furnish us with
an insight that will help to explain our entire sugya. In Hilkhot Ishut 2:1 the Rambam writes
as follows: "A girl, from the day she is born until she completes twelve full
years, is considered a ketana (minor) and a tinoket (child)." The Rambam, who is famous for his
accurate and concise language, is in this case verbose and in fact
repetitious. Why is it necessary
for the Rambam to mention both ketana and tinoket? One cannot claim that this is
unintentional, for we find the parallel phenomenon with respect to the male
later in the same chapter (halakha 10).
"A boy from birth until he is thirteen years old is considered a katan
(minor) and a tinok (child)...upon the appearance of two pubic hairs if he is
thirteen or above, he is considered an adult and a man." Again we find the parallel repetition of
minor and child. Furthermore, there
is an analogous repetition of adult and man.
The conclusion is obvious: adulthood in Halakha consists of two
conceptually independent processes.
On the one hand, we are dealing with intellectual development. As long as a child has the status of a
minor, he is halakhically defined as incapable of da'at (the level of
intelligence required by Halakha).
On the other hand, the child has not yet matured biologically, and only
upon coming of age is he or she considered a fully developed man or woman. Under normal conditions, both processes
occur simultaneously and are halakhically integrated. Consequently, the usual criterion for
being defined as an adult requires both having reached a certain age (twelve for
a female, thirteen for a male), and the exhibition of certain indications of
physical maturity. This dual
requirement is consistent with the complex nature of halakhic adulthood. Regarding the female this distinction is
especially marked. Intellectual
adulthood is a one-step process in which a girl is elevated from a minor to a
responsible adult. Entering
womanhood, on the other hand, is a two-step process where a child initially
enters the interim period of na'arut.
Only with the passage of six months does she blossom fully as a woman, at
bagrut.
Our sugya, however, deals with an abnormal situation in which a
discrepancy exists between the two processes. Although a woman fails to develop
physically, we have no reason to doubt the level of her intelligence. Nonetheless, we await the appearance of
physical signs of maturity before categorizing the woman as an adult, even
vis-a-vis the question of intellectual development. However, once we discover that this
woman will never develop biologically, i.e. she is an aylonit, we are forced to
use different criteria to establish adulthood. The precise alternate criterion,
however, is unclear. This is the
focal point of the controversy among the Amoraim and among the Rishonim as
well. According to Shmuel, an
aylonit is designated as an adult only from the point at which we clearly
determine her to be an aylonit - at the age of twenty. It is only at that point that we are
forced to concede that this woman will never mature physically. Consequently, her status as an adult
cannot be dependent on the normal feminine biological development, and she
achieves the status of an adult despite its absence. Rav, on the other hand, claims that at
twenty we merely discover that this woman had been an aylonit all along. Therefore adulthood can be established
retroactively.
The Role of Physical
Signs
As was noted above, there is a disagreement among the Rishonim as to the
point at which the aylonit is designated as an adult retroactively. The Yad Rama (Bava Batra 155, section
140) claims that that the criteria to establish adulthood of an aylonit are
sharply different from those normally required. Since there is no possibility of
physical indicators, age alone is sufficient. Consequently, upon proving at the age of
twenty that she is an aylonit, a woman will achieve adulthood retroactively from
age twelve. The Ra'avad on the
other hand, held that an aylonit, like every other woman, requires both age and
physical indicators to establish adulthood. However, the physical indications of an
aylonit differ from those of a
normal woman. Therefore upon
discovering that she is an aylonit at age twenty, the woman is established as an
adult retroactive to the point where both factors, age and physical signs of
being an aylonit, exist. The Rama
and Ra'avad apparently have a basic disagreement as to the categorization of the
physical indicators that an aylonit shows.
According to the Ra'avad, they are positive indications that this woman
has developed biologically (as much as she ever will). Therefore, they can be legitimately
substituted for the signs of puberty normally required. However, the Rama does not regard these
indications as positive signs of development, but rather as negative signs that
this woman will never develop fully, and therefore they are merely indicators
that this woman is in fact an aylonit.
(See Reb Chaim, Hilkhot Ishut 2:9)
Moreover, their argument may reflect two basic approaches regarding the
criterion of adulthood in general.
Whereas according to the Ra'avad physical indications of physical
development are critical, the Rama views them as expendable. Perhaps the Rama relates to physical
maturity merely as corroboratory evidence of adulthood where there is normal
development, but not as a component of adulthood itself. (See Or Sameach, Hilkhot Sota ch.
1). The Ra'avad, on the other hand,
may view physical development as one of the factors which actually define
adulthood. (See Shita Mekubetzet
Bava Batra 56 s.v. V'li ani.) As
was already noted, the multiple components required would accurately reflect the
complex nature of adulthood.
However, in light of the above analysis, the Ramban’s opinion that the
status of aylonit is established retroactive to twelve and a half, remains
enigmatic. It does not seem to
correspond with the understanding that age alone is a sufficient determinant of
adulthood (in the case of an aylonit), since clearly the age twelve should be
decisive in that regard. Nor does
the approach that requires the appearance of physical signs help explain this
opinion, since there are no physical changes specifically at the age of twelve
and a half. We will return to this
opinion later, after sharpening our definitions even more. Intellectual versus
Biological Maturity
Theoretically, one could suggest that in the case of the aylonit a
distinction should be made between the point at which she is defined as an adult
from the intellectual perspective, and the point at which she is considered a
mature woman. Upon discovering at
age twenty that the woman is an aylonit, we are forced to sever the issue of
intellectual development from that of biological maturity. Accordingly, her status as an
intelligent adult is established retroactively based solely on the factor of age
(twelve), while her status as a mature woman is achieved only from age
twenty. Interestingly, the argument
of Rav and Shmuel revolved around the issue of culpability, which is a function
of the intellectual maturity alone.
Perhaps this is the reason that the Rid ignored the opinion of Rav that
an aylonit achieves the status of an adult retroactively. According to the Rid, the retroactive
designation of the aylonit is limited to the status of intellectual
adulthood. Our sugya, however,
deals with her biological maturity, which is only established at twenty. (It should be noted that the
continuation of the gemara in Yevamot deals with Rav and Shmuel within the
context of biological development.
This presents an obvious difficulty with our explanation of Tosafot
Rid. My solution to this problem is
complex, and since this question does not affect the rest of the shiur I will
not deal with it here. I welcome
insights into this problem, and comments in general.)
However, the simple reading of the gemara in Yevamot clearly indicates
that according to Rav both aspects of adulthood are established
retroactively. Nevertheless, we can
still discriminate between the two.
We have already noted that in the case of an aylonit, different criteria
for the establishment of adulthood must be used. According to the Ra'avad, both age and
physical indicators that she is an aylonit are necessary. According to the Rama, age alone
suffices. One may suggest a third
approach: that the factors that determines adulthood in the abnormal case of an
aylonit differ radically from the criteria normally required. Since an aylonit can never produce the
indicators of adulthood, they are actually unnecessary. Instead, she is designated as an adult
based on the norm. Accordingly, she
will be defined retroactively as an intelligent adult from the age of
twelve. However, her status as a
woman will not take place until the age of twelve and a half, as the average
girl matures at this time. This is
what the gemara in Yevamot refers to when it claims that according to Rav the
status of an aylonit retroactively changes from childhood straight to
bagrut.
Based on this understanding, we can return and answer our questions on
the Ritva and the Ramban. The Ritva
in Yevamot is discussing intellectual adulthood when he claims that adulthood of
an aylonit is established retroactively from the age of twelve. In Kiddushin, however, regarding the
question of womanhood, he quotes the opinion of the Ramban that it is designated
retroactively from the age of twelve and a half. The Ramban, who argues that even
intellectual adulthood is established at twelve and a half, apparently rejects
the possibility of severing the two aspects of adulthood even in the case of an
aylonit. Therefore, since the usual
age of establishing womanhood is only at the age of twelve and a half, it is
only at that point that is conferred the status of an adult as
well. Summary
We have used the exceptional case of aylonit to help us analyze the
halakhic understanding of adulthood.
We saw that adulthood is a complex concept, comprised of two conceptually
independent ideas: 1. intellectual development; 2. physical maturity. Under normal conditions the two are
halakhically integrated. However,
in the abnormal case of the aylonit, we examined the possibility of severing the
two. Furthermore, we touched
briefly upon the nature of the criteria required to establish adulthood, while
discussing in detail the alternatives available where an aylonit is
concerned. SOURCES FOR NEXT WEEK'S
SHIUR: 1. Kiddushin 5a "Amar Rav Huna chuppa kona
... chuppa she-gomeret eino din she-tikneh (5b)".What, in essence, is behind the
machloket between Rava and Abbaye?[Chiddushei R. Chaim al ha-Rambam, Hilkhot
Yibbum ve-Chalitza 4:16 s.v. ve-asher] 2. Yevamot 107a (mishna) and gemara until
"... lefi she-ein t'nai be-nissu'in"; Rashi s.v. lefi
she-ein. 3. Arukh Ha-Shulchan Even Ha-Ezer
55:5. 4. Definition of Chuppa:Ran Ketubot
(Alfassi 1a) s.v. O she-pirsa, until "...me-hilkhot
ishut." [See the mishna and gemara just
to understand the Ran's references.] ibid. "ve-acherim omrim ...
harei hi bi-reshuto."
What are the two opinions of what happens for
chuppa?
What ideas are behind these approaches? |