Niddah 44b — the Talmud in English

What is the reason?

As it is known to the Sages

that he

the fetus

dies first

before his mother,

and

it is the law that

a son does not inherit his mother ![](pamud.bmp "

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in the grave

in order

to bequeath to his brothers from the father.

And the Gemara raises an objection:

It is not so!

Is there such a rule that the fetus always dies before the mother?

But there was an incident

and they removed a fetus from his mother who had died,

and he thrashed up to three thrashings

after the mother’s death, and it is proven that the mother died before the fetus,

And the Gemara answers:

Mar, son of Rav Ashi, said:

In truth, the fetus died first, and the thrashing was not a sign of life, but sometimes a dead limb has the power to thrash,

as is the case with the tail of a lizard, which thrashes

after they cut it off..

Mar, son of Rav Yosef, said in the name of Rava

another answer as to why it makes a practical difference that a child one day old inherits and bequeaths:

to say

that by including the infant brother who died in the division of the father’s inheritance, it turns out

that he diminishes the birthright share.

For if, for example, there was a firstborn, another brother, and the infant who died, and the inheritance was twenty-four maneh. If we divide the inheritance into four portions of six maneh, and the firstborn takes two portions [half the inheritance, twelve maneh], and each of the brothers receives one portion [a quarter of the inheritance, six maneh], and afterward we return and divide the infant’s six maneh equally among the brothers [because a firstborn does not take double in the inheritance of his brother], it is found that the firstborn brother received half of the inheritance from the father [twelve maneh] and another three maneh from the infant [and altogether he has fifteen maneh], while the second living brother receives his six-maneh portion and another three maneh from the infant [and altogether he has nine maneh].

But if the deceased brother does not receive a portion in the inheritance, then we divide the inheritance into three portions of eight maneh each, and the firstborn takes double [sixteen maneh], while the living brother receives only one-third [eight maneh]. It is found that in the first form of division the firstborn loses one maneh.

And Mar, son of Rav Yosef, said in the name of Rava

another law:

A son who was born after the father’s death does not diminish

when the firstborn takes his portion

of the birthright share

which was established according to the time of death,

and at that time he was still a fetus and was not included in the division.

That is to say, the determining time for the firstborn’s acquisition of the double birthright share due to him is the time of the father’s death. Therefore, if, for example, there were three heirs—the firstborn and two brothers—then if all three are present at the time of the father’s inheritance, the inheritance is divided into four, and the firstborn receives two portions [half the inheritance], while each of the brothers receives one portion [a quarter of the inheritance].

But if at the time of the father’s death the third brother was still a fetus in his mother’s womb, it is found that at the time of death, which is the determining time for the birthright share, the inheritance must be divided into three portions. Of these, two-thirds go to the firstborn: one-third as the birthright share and another one-third as an ordinary share, while the remaining brother receives the third portion. And when the additional brother is born, we again divide the two-thirds among the three brothers, but the portion that the firstborn received as firstborn is not divided again, because the determining time for the measure of his acquisition is the time of the father’s death.

It follows that if the inheritance was nine maneh, the firstborn receives one-third of the inheritance [three maneh] by the law of the firstborn, and another one-third of two-thirds [which are two maneh] as an ordinary share. Altogether he receives five maneh, and the two brothers receive two maneh each. But if the additional brother had been included in calculating the birthright share, the firstborn would receive only half the inheritance [four and a half maneh], and the other two brothers would receive one-quarter [two and a quarter maneh].

What is the reason

that only one who has been born diminishes the birthright share, but not a fetus? Because in the passage concerning the inheritance of a firstborn it is written,

“and they bear to him,”

sons

we require,

but not a fetus, who was not born to him during his lifetime.

In Sura they taught

the statement of Mar, son of Rav Yosef,

thus.

But

in Pumbedita they taught

the statement

thus:

Mar, son of Rav Yosef, said in the name of Rava: A firstborn who was born after his father’s death,

for example, when at the time of the father’s death there were two twin fetuses, and after he died they were born,

does not take double,

but the inheritance is divided equally between the twins.

What is the reason? “

For the firstborn

he shall recognize

[the father] in order to give him double”

we require, but this is absent!

For his father did not recognize him at the time of his death, since he was still a fetus in his mother’s womb.

And the Gemara’s conclusion for the halakha:

And the halakha is according to all these formulations of Mar, son of Rav Yosef, in the name of Rava!

We learned further in the Mishna:

And one who kills him is liable:

As it is written

in the passage concerning a murderer [Leviticus 24],

“And if a man strikes any soul.”

And we expound: a soul

in any event,

so that he is liable even for a child one day old. We learned further in the Mishna:

And he is, to his father, to his mother, and to all his relatives, like a fully eligible bridegroom.

For what halakhic matter?

Rav Pappa said: With regard to mourning,

that even for a small child one day old they mourn as for an adult.

According to whom

is he—the tanna of the Mishna who considers a child one day old already viable?

Not in accordance with Rabbi Shimon ben Gamliel, who said: Anyone who remained thirty days among people is not a nefel.

And it should be inferred from his words:

if he did not remain

thirty days,

he is a doubt

a nefel

indeed.

And the Gemara rejects this: It is possible that the tanna holds like Rabbi Shimon ben Gamliel, because

here, with what are we dealing? With a case where it is established for him that his months were completed.

It is known with certainty that his mother became pregnant nine months earlier, and therefore he is considered viable immediately upon birth. Rabbi Shimon ben Gamliel disputes only an unspecified case, and holds that there is a doubt perhaps his months were not completed; therefore proof that he is not a nefel is required through his living thirty days.

Mishna:

A girl who is three years old is considered fit for intercourse, and a man who has intercourse with her is considered to have performed an act of intercourse with her. But before this age she is not fit for intercourse, and if a man has intercourse with her, he is not considered to have performed an act of intercourse with her. And the Mishna before us enumerates several laws dependent on the age of three years:

a. A girl

three years old and one day,

her intercourse is intercourse in every respect, and therefore she

is betrothed through intercourse,

if her father handed her over for betrothal through intercourse.

b.

And if a yavam has intercourse with her, he acquires her.

If the girl was three years old, married, and her husband died without children, and she requires yibbum or halitza, the yavam acquires her as a wife through this intercourse.

c.

And

if her father betrothed her to a man, she is forbidden to every person under the law of a married woman, and therefore

they are liable on her account for [the prohibition of] a married woman.

But a minor whom her father betrothed before this age, although she is a completely married woman and forbidden to unrelated men, they are not liable for intercourse with her, because intercourse with a girl younger than three is not considered “intercourse.”

d.

And she renders the one who has intercourse with her impure

when she is a menstruant, with the impurity of one who has intercourse with a menstruant, and not only with the impurity of contact with a menstruant.

That is to say, one who touches a menstruant is impure with the impurity of contact until evening, and his degree of impurity is that of a first degree of impurity; he renders only food or drink impure, but does not render a person or vessels impure, and likewise he does not render impure something that he did not touch directly, even if he sat above it or lay upon it. But one who has intercourse with a menstruant woman becomes impure for seven days, like a menstruant, and his degree of impurity is that of a primary source of impurity, like the menstruant herself. Therefore, he also renders a person and vessels impure when he touches them, and he also renders impure something upon which he lay or sat, even if he did not touch it directly. But before this age, since the girl’s intercourse is not considered intercourse, the one who has intercourse with her is impure only with the impurity of contact, since he touched her while she was a menstruant, and not with the impurity of one who has intercourse with a menstruant.

And this impurity of the bedding of one who has intercourse with a menstruant is

to render the lower bedding impure—

like the upper

of a zav.

That is to say, the impurity of one who has intercourse with a menstruant is not entirely like the impurity of the menstruant herself. For only a menstruant renders bedding and a seat impure, meaning that any bedding upon which a menstruant lay, or seat upon which a menstruant sat, is impure with a degree of impurity that is a primary source of impurity like the menstruant, and renders even a person and vessels that touch it impure.

But the bedding and seat of one who has intercourse with a menstruant, although it is impure [and in this its impurity is more severe than that of one who touches a menstruant, whose bedding and seat are pure], nevertheless has a low degree of impurity, that of a first degree of impurity, and his bedding and seat render only food and drink impure, and not a person or vessels.

And just as all things that are “carried” above a zav, such as the garments of a zav [which are called in the language of the Sages the upper part of a zav], differ in their impurity from things upon which he lies [which are called by the Sages the lower part of a zav], so that the upper part of a zav is impure with the lower degree of a first degree and does not render a person or vessels impure, but only food and drink, whereas the lower part of a zav renders impure with the severe degree of a primary source of impurity, and also renders a person and vessels impure, so too the impurity of the bedding and seat of a menstruant [which renders a person and vessels impure with the degree of a primary source of impurity, like the lower part of a zav] differs from the bedding and seat of one who has intercourse with a menstruant, which renders impure only with the degree of a first degree, food and drink, like the upper part of a zav.

e.

And if she marries

that girl three years old and one day

to a kohen—

she may eat teruma.

For she is fit for intercourse, and therefore her marriage is a complete marriage.

And if

one of those disqualified

who disqualify a woman from the kehunah through intercourse with her, such as a halal or a mamzer, has intercourse with her,

he disqualifies her from the kehunah,

so that it is forbidden for her to marry a kohen. And if she was the daughter of a kohen, it is forbidden for her to eat teruma.

f. And if

one of all the forbidden relations stated in the Torah [

relatives whom it is forbidden to marry, such as her father or her brother] has intercourse with her—

they are put to death on her account!

And she is exempt from punishment, for she is a minor.

But if she was

younger than this [

than three years and one day], she does not have all these laws, for her intercourse is not considered intercourse, but rather he is

like one who places a finger in an eye,

for the eye becomes clouded, and immediately when he removes the finger from the eye, the eye clears and returns to its previous state; so too, one who damages the hymen of a minor, it returns and heals.

Gemara:

The Sages taught: A girl of three years becomes betrothed through intercourse; these are the words of Rabbi Meir.

And the Sages say: [she must be] three years and one day old.

And the Gemara explains:

What is the difference between them?

The school of Rabbi Yannai said: The eve of the New Year

of her fourth year alone

is the difference between them.

According to Rabbi Meir, on the day before her birthday [on the last day of her third year] she is already “of age.” But according to the Sages, she becomes of age only after three complete years have elapsed and one day of the fourth year has begun [and it follows that their dispute concerns only one day].

And Rabbi Yohanan said: Thirty days in a year,

if

are considered a year, that is the difference between them.

For according to Rabbi Meir, when she has completed two years and another thirty days of the third year have begun, she is considered as one who has completed three years and is fit for intercourse.

But according to the Rabbis, only when she has completed three full years and the fourth year begins is she considered three years old and fit for intercourse. [And it follows that their dispute concerns a period of eleven months, from when she has completed two years and thirty days until she completes three years].

The following objection was raised

to the school of Rabbi Yannai, from that which was taught:

A girl of three years—and even a girl of two years and one day—becomes betrothed through intercourse; these are the words of Rabbi Meir.

And the Sages say: [she must be] three years and one day old!