Still in connection with a Tumtum she'Nikra ...

... Rav Shizbi learns from the same word in the Pasuk ("Ishah ki Sazri'a ve'Yaldah Zachar ... u'va'Yom ha'Shemini Yimol") that - Milah on the eighth day overrides Shabbos if the baby was known to be a boy at birth.

... Rav Sheravya learns from the word "ve'Yaldah" (in the Pasuk in Tazri'a "Ishah ki Sazri'a ve'Yaldah Zachar ve'Tam'ah Shiv'as Yamim") that - a woman is only Temei'ah Leidah (for seven days), if the baby is known to be a boy when it is born, but not if it is a Tumtum she'Nikra.

Likewise, in the first Halachah, should the Tumtum turn out to a girl - her mother will not be Tamei for fourteen days ...

... since there too, the Torah writes "ve'Im Nekeivah Seiled, ve'Tam'ah Shevu'ayim", indicating that it is only if the baby is known to ba a girl at birth, that the mother is Tamei for fourteen days).

The Beraisa rules that if a woman has a miscarriage which turns out to be a Tumtum or an Androginus - a person who has both male and female sex-organs) 'Teishev le'Zachar ve'la'Nekeivah' (she must observe the Tum'ah and Taharah period of both a male and a female).

The ramifications of this (according to our initial understanding that 'le'Taharah' is literal) are that - she keeps fourteen days of Tum'ah (during which time she is Tamei, even without have seen any blood, as if she had given birth to a girl) and the remaining nineteen days (out of the thirty-three days) of Taharah (when she is Tahor (even if she sees blood) which follow the birth of a boy.

In any event, this Beraisa disproves Rav Sheravyah (who precludes a Tumtum [even 'she'Nikra'] from the entire Din of Tum'ah and Taharah). It is not, however, a disproof for Rav Shizbi, who Darshens "ve'Yaldah" to preclude a Tumtum from Milah overriding Shabbos - because it is possible that the Tana has a Safek whether to Darshen "ve'Yaldah" in this way or not, due to an alternative way of Darshening it. Consequently, he goes le'Chumra both ways (and this is also the opinion of Rav Shizbi).

The alternative D'rashah that the Tana (and Rav Shizbi) learns from "Ishah Ki Sazri'a ve'Yaldah" is to teach us that - if a woman is the first to climax, she will give birth to a boy, and vice-versa.

The problem with the above answer is that, seeing as it is now a Safek whether she has the days of Tum'ah and Taharah at all, the Tana ought then to have said - 'Teishev le'Tum'ah, le'Taharah u'le'Nidah'.

In other words, the woman ought not to have any days of Taharah at all - because the moment the fourteen days of Tum'ah for a girl terminate, in the event that she sees blood, she should be considered a Nidah mi'Safek.

In spite of the fact that the woman has to observe fourteen days of Tum'ah anyway, the Tana inserts 'le'Zachar' - because it will affect her status should she see blood on the thirty-fourth day and then again on the forty-first. If the baby was not a boy, then the first sighting was that of Nidus, and the second of Zivus (which requires seven clean days and a Korban), whereas if it was, then the first sighting will have taken place during the days of Taharah following the birth, and the second sighting will be one of Nidus (which renders her Tamei for seven straight days, and does not require a Korban).

Despite the fact that Kashya remains unanswered, we do not conclude 'Tiyuvta' (like we just did on Rav Sheravyah) - because we could simply answer by amending the Beraisa to read 'Teishev le'Zachar, la'Nekeivah u'le'Nidah'.

We learned a Beraisa in support of Rebbi Ami ('Tumtum she'Nikra ... ') "Ben", 've'Lo Tumtum', "B'chor" 've'Lo Safek'; and we explain that this comes to preclude from the statement of Rava, who said that if a man's two wives gave birth to two babies simultaneously, one of them to a B'chor, and they became mixed-up from birth - one of them writes the other a Harsha'ah (a document authorizing him to claim the Bechorah in his stead, should he be the B'chor), to claim the Cheilek B'chorah on his brother's behalf, if he is the actual B'chor, and on his own behalf, should he be the B'chor.

Ravin went to great lengths to work out the Halachah in this case. Eventually, he learned from Rebbi Yanai that - in a case of 'Hukru ve'li'Besof Nis'arvu' (if the babies only became mixed-up after they had been recognized), a Harsha'ah helps, but not in a case of 'Nis'arvu ve'li'Besof Hukru' (where they were mixed-up at birth, even if they later became recognized).

The source for the Chumra in the latter case is the D'rashah - "B'chor", 've'Lo Safek', as we just learned from the Beraisa.

Rava's reaction to Rebbi Yanai's ruling was - to retract from his original ruling and to concede to the latter's explanation.

Before hearing the correct explanation from Rebbi Yanai, Rava thought that the Tana learns from ...

... "ve'Hayah ha'Ben" that - the baby must be known to be a boy from the time of birth, and not a Tumtum.

... "ha'B'chor" - nothing, other than that a B'chor receives a double portion.

According to Rebbi Yanai "ve'Hayah" refers to "ha'Bechor" as well as to "ha'Ben", in which case, both must be clarified at the time of birth; otherwise he will not receive the Cheilek Becho

The B'nei Akra de'Agma asked Shmuel what the Din will be if Reuven was established - through hearsay, as the B'chor, but his father declared Shimon the B'chor.

Shmuel replied that - Reuven and Shimon will have to write out a Sh'tar Harsha'ah for each other, so that between them, they will be able to claim the Cheilek Bechorah from the other brothers.

Bearing in mind that this depends on a Machlokes Tana'im (as we shall now see), Shmuel's ruling is based - on the fact that he did not know which opinion is Halachah.

Rebbi Yehudah ...

... learns the word "Yakir" (in the Pasuk "Ki es ha'Bechor ben ha'Senu'ah Yakir") that - a father is believed to declare one of his sons to be the B'chor, even though this clashes with the Chazakah.

... also learns that - just as he is believed concerning the Bechorah, so too, is a father who is a Kohen believed to declare his son a ben Gerushah or Chalutzah (whom the Rabbanan decreed to be a Chalal, because he is similar to a ben Gerushah), and therefore Pasul li'Kehunah.

The Rabbanan (of Rebbi Yehudah) learn from the word "Yakir" that - if the father arrives in a new town where he and his children are as yet unknown, he is believed (but not against a Chazakah).

Bearing in mind that the issue of Ne'emanus here concerns which son receives the Cheilek Bechorah, the problem we have with the Rabbanan is - why they require a D'rashah from "Yakir", seeing as the father has a 'Migu' in that he is able to give him his property anyway as a Matanah, even to a stranger, why should he not be believed to declare one of his sons the B'chor, even without a Pasuk?

We confine the Kashya to the Rabbanan - because, according to Rebbi Yehudah, we need the Pasuk to teach us that the father is believed even against a Chazakah (in which case a 'Migu' will not help).

We answer that - the father is believed even with regard to property that he has yet to obtain (and which, due to the principle 'Ein Adam Makneh Davar she'Lo Ba le'Olam', he would not be able to give his son as a Matanah.

Rebbi Meir, who holds 'Adam Makneh Davar she'Lo Ba le'Olam' - and who is generally the Bar Plugta of Rebbi Yehudah, will establish "Yakir" - by property which the father will only receive when he is a Goseis, and which he cannot be Makneh in advance because he will be physically unable to.

The author of the Beraisa which states 'Hayu Muchzakin bo ...

... she'Hu B'chor, va'Amar Aviv al Acher she'Hu B'chor, Ne'eman' - is Rebbi Yehudah.

... she'Eino B'chor, va'Amar B'chor hu, Eino Ne'eman' - is the Rabbanan.

Rebbi Yochanan says 'B'ni Hu, ve'Chazar ve'Amar Avdi Hu, Eino Ne'eman'. In the reverse case ('Avdi Hu, ve'Chazar ve'Amar B'ni Hu') however, he rules 'Ne'eman' - because we say, he really is his son, and the reason that he first called him 'Avdi' was because he served him like an Eved.

We do not believe him in the first case, on the grounds that he is really his Eved, and he called him 'B'ni since he loves him like a son - because no-one has such a close relationship with his Eved.

If however, he is passing through customs, Rebbi Yochanan reverses the ruling. In that case, he refers to him as 'B'ni' - as he passes through, and as 'Avdi' - later, once he leaves the domain of the tax-men.

There he rules, that if he first referred to him as 'B'ni' and then as 'Avdi', he is believed, but not vice-versa - because, seeing as one pays taxes on Avadim but not on one's children, one would expect him to refer to his Eved as B'ni as long as he is in the vicinity of the tax men (to avoid having to pay taxes), but not vice-versa.

We query Rebbi Yochanan from the Beraisa 'Hayah Meshamsho ke'Ven, u'Va ve'Amar Bni Hu, ve'Chazar ve'Amar Avdi Hu, Eino Ne'eman'. In the Seifa the Tana rules - 'Hayah Meshamsho ke'Eved, u'Ba ve'Amar Avdi Hu, ve'Chazar ve'Amar Bni Hu Eino Ne'eman' (like he ruled in the Resha).

This Beraisa poses a strong Kashya on Rebbi Yochanan - who believes 'Avdi Hu, ve'Chazar ve'Amar B'ni Hu', even where we did not see his son serving him like an Eved, so he certainly ought to believe him where we did (as in the Beraisa)?

Rav Nachman bar Yitzchak reconciles Rebbi Yochanan with the Beraisa with by establishing the latter by Avda Meitzar Me'ah - that he called him (not just 'Avdi', but) 'Avda Meitzar Me'ah', meaning that he is the ideal Eved, who is worth a hundred Dinarim, something that no-one would say about his son.

This will also explain - why the Tana adds 'Hayah Meshamsho ke'Eved', to stress that even then, he is not believed when he later says 'B'ni Hu'.