Shiur #6: Aylonit

  • Rav Yair Kahn

 

GEMARA KIDDUSHIN

 

 

SHIUR #06: 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 irrelevant.  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. Veli 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 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 now 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 she becomes an adult.

 

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?