By Rabbi Yehoshua Berman
Yevamos 80 – That’s Talking about You and Me!
A very interesting case comes up in today’s daf. A man went abroad. Twelve months later, while he is still away, his wife gives birth to a baby. The Gemara says that this was an actual case that came to the attention of Rabbah Tosfaah. He paskened that the child is a kosher Jew. Why? Since we find in the opinions of both Rebbi and Rabban Shimon ben Gamliel the concept that a fetus can tarry inside its mother’s womb and be late, we adopt the stance that in this scenario, the mother was in fact pregnant to her husband, just the baby was late.
Another recorded such case arose some one thousand one hundred odd years later. The Maharik (teshuvah 103) had almost precisely the same situation which he had to pasken. Just this time it was one month less. The woman gave birth after eleven months since her husband’s departure. At this point in history, though, it was not so simple for the Maharik to pasken that the baby was a kosher Jew.
As mentioned, a big part of the basis for the psak of Rabbah Tosfaah is the opinion of Rabban Shimon ben Gamliel. The latter says that (in general) if a baby was born after only eight months, as long as the baby lives for thirty days it is deemed a viable living being, with all the attendant halachos. Even though in the time of Chazal an eight-month fetus was inherently considered a stillborn, Rabban Shimon ben Gamliel maintains that once it has passed the thirty day threshold, we take that as an indication that really it was a seven-month baby, just that it tarried and was late. Hence the support for Rabbah Tosfaah’s assertion that we posit that the woman who gave birth twelve months following her husband’s departure, we can say that the baby tarried and was late.
The problem is, that it is not at all clear that we pasken in accordance with Rabban Shimon ben Gamliel on this point.
Nevertheless, says the Maharik, we do pasken in accordance with Rabbah Tosfaah. He submits numerous reasons why this is so. One of them is as follows. Even if we do not pasken like Rabban Shimon ben Gamliel regarding the general question of a baby born at eight months, in this situation it very well may be that the Chachamim would concur that we deem the child kosher. The reason? The mother has a chezkas tzadeikes. She is a Jew; therefore, unless there is strong evidence to indicate otherwise, she is assumed to be a righteous Jew. This consideration of chezkas kashrus (as it is generally called) weighs strongly in favor of positing that she was not unfaithful, and that it therefore must be that she was pregnant to her husband, just that the baby was late. This position is echoed by both the Beis Shmuel and the Gra (both in Even Ha’ezer siman 4) as being the primary reason why we assume that the baby was in fact a nine-month fetus to her husband, just that it was late.
It is clear that even in the time of Chazal a baby being born at a twelve month term was not exactly an everyday occurrence, to say the least. Despite the rarity of it, a factor that almost certainly would have caused the average guy’s eyebrows to raise practically past his forehead, Chazal’s determination is that the assumed chezkas kashrus of a Jew is so strong, that it outweighs what “common sense” would have dictated.
Note: neither in the case of the Gemara, nor in the case of the Maharik is there any mention that the woman in question was known to be a great tzadeikes or rebbetzin or anything like that. The implication is clear – l’halacha! – that even if she would be your “regular, run of the mill” frum, Jewish woman, that is enough to posit this assertion: she was pregnant to her husband and the baby was simply born late.
As a matter of fact, the Shulchan Aruch brings down an opinion that takes this assertion so far as to say that even if the baby was born more than twelve months after the husband departed, we still pronounce the baby kosher. Why? Because we can assume that the husband briefly came home in the middle of his trip without anyone knowing, and the baby is his. Some Poskim even go so far as to say that in certain circumstances we can be toleh on the usage of practical kabbalah to explain how the husband could have made it home in the interim! Whether we pasken like these shitos or not, is a discussion in the Achronim, and in most such, very far-fetched cases, l’halacha we do not consider the child a mamzer for certain, rather only a safeik mamzer.
Either way, one thing is apparent with stark clarity from this whole sugyah: Jews are very, very good people. Even so-called average Jews. Therefore, the benefit of the doubt that they are given is extremely solid. It takes quite a lot to destabilize a Jew’s chezkas kashrus.
Of course, this gives us reason to carefully reconsider each time an uncharitable thought about a fellow Jew tries to worm its way into our minds. Just as important, or perhaps even more important, is that we allow this fact to filter into our consciousness of self. One of the yeitzer hara’s prime tools in getting a Jew to undercut his own best interests is by undermining his sense of how great and worthy he really is. When we see a sugyah such as this that is practically screaming at the top of its lungs about how amazingly and inherently good a Jew is, it’s k’dai to pause and realize, “Hey! You know, that’s talking about you and me!”
Rabbi Yehoshua Berman serves as the Rosh Kollel of Kollel Reshet HaDaf in Ramat Beit Shemesh, Israel. Driven by a passion to generate true kinyan Torah, both for himself and others, Rabbi Berman develops innovative tools to getting the most out of what we learn. In addition to having authored the warmly acclaimed Reflections on the Parsha, Rabbi Berman regularly delivers shiurim whose topics range from Halacha to Hashkafa, sends out daily emails of comprehensive chazara questions for the advanced Daf Yomi learner who really wants to retain his learning, and weekly emails of words of inspiration based on the Parsha. For more information on Reflections, to subscribe to receive these emails, or request a speaking engagement, Rabbi Berman can be contacted at firstname.lastname@example.org.