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Shabbos 135


The Beraisa states that a baby born after eight months is not considered to be living and is Muktzah and forbidden to be handled on Shabbos.

TOSFOS (DH Ben Shemonah) writes that this Halachah does not apply today for two reasons. First, we are not knowledgeable enough to know whether the baby was born after eight months or after nine months, and the Halachah is that when we are in doubt whether a baby was born after eight months or nine months we treat him like a ninth-month baby.

Second, even if we would know for certain that the baby was born after eight months, the Gemara in Yevamos (80b) teaches that the baby is only considered not to be living when its hair and fingernails are not completely developed (a sign that the baby is not physically complete). If the baby is fully developed, even if it is born after eight months it is considered to be alive. It is looked at as "a seventh-month baby that was born in the eighth month," after tarrying a few days inside the womb. Therefore, a baby born even in the eighth month is considered to be alive unless it is obviously not fully developed.

HALACHAH: This is also the ruling of the SHULCHAN ARUCH (OC 330:7-8); only if a baby born after eight months has obvious signs of incomplete development is it forbidden to be handled on Shabbos (see Mishnah Berurah 330:30 who cites a different view in the name of the Vilna Ga'on).

OPINIONS: Is there a requirement to perform Hatafas Dam Bris to a gentile who is in the process of converting to Judaism *after* having been circumcised, or to a baby who was *born* circumcised?

(a) TOSFOS (DH Lo Nechleku) and RABEINU CHANANEL rule that neither needs Hatafas Dam Bris. They rule in accordance with Rav, who argues with Shmuel and says that the Halachah is like the Tana Kama's version of Beis Hillel's opinion. Beis Hillel, according to the Tana Kama, says that a baby born circumcised does not need Hatafas Dam Bris. Consequently, a convert certainly does not need Hatafas Dam Bris, because the requirement of Hatafah for a baby is more strict than that for a convert. (This hierarchy is evident from the Gemara, where we find that even according to the opinion that maintains that a baby born circumcised *needs* Hatafas Dam Bris, a convert does *not need* Hatafah).

(b) The BEHAG says that a baby born circumcised does not need Hatafas Dam Bris, like Tosfos says, because we follow the ruling of Rav. However, the Behag rules that a convert who was already circumcised *does* require Hatafah (basing his ruling on a Gemara in Yevamos 46b). This seems to contradict the logic of our Gemara, which implies that a convert needs Hatafah to a *lesser* degree than a child born circumcised.

Tosfos, in the name of Rabeinu Shimshon, explains that indeed logic would require that Hatafas Dam Bris should be necessary for both a circumcised gentile and a baby born circumcised. However, the Tana Kama derives from the word "Orlaso" in the verse that not only is Hatafas Dam Bris *not* performed on Shabbos (as stated earlier on this Amud), but it is not required of a born-circumcised baby at all. However, that verse was stated only with regard to a baby, and not with regard to a convert. Therefore, with regard to a convert the logic that Hatafah is required remains, and thus a convert needs Hatafas Dam Bris.

To elaborate on the logic behind this statement we can suggest that the convert may need Hatafah because he was born with an Orlah. The Torah considers someone who was born with an Orlah to be someone to whom Milah can be performed. Therefore, even if he decides to become Jewish after he cut off the Orlah he is obligated to do some action, just like the person who still has an Orlah. This obligation is fulfilled by Hatafas Dam Bris (ROSH).

Alternatively, perhaps a convert needs Hatafah because he must do some *action* in order to become part of the Jewish people. He must have a Milah not only to fulfill the Mitzvah of Milah, but also to make him into a Jew. Even if he was already circumcised when he was a gentile, some action must be done in order to make him part of the Jewish people. The baby, however, is Jewish by virtue of being born to a Jewish mother, and he needs no action to make him part of the Jewish people.

(c) The RIF and RAMBAM (Hilchos Milah 1:7) rule that *both* a gentile who was circumcised and a baby born circumcised need Hatafas Dam Bris. The KESEF MISHNAH explains that this ruling is based on the opinion of Rebbi Eliezer ha'Kafar who says that Beis Hillel maintains that both need Hatafas Dam Bris.

However, the Rambam (Hilchos Milah 3:6) rules that no blessing is recited when Hatafah is performed to the convert. If the Rambam rules like Rebbi Eliezer ha'Kafar, why should one not recite a blessing?

The RAN (on the Rif) explains that the Rambam is not ruling definitely like Rebbi Eliezer ha'Kafar. Rather, the Rambam is in doubt whom the Halachah follows, and therefore he rules that a convert needs Hatafah but without a blessing.

HALACHAH: The SHULCHAN ARUCH (YD 266:4) rules that a baby born circumcised needs Hatafah. The SHACH writes that no blessing is recited unless there seems to be some tightly pressed Orlah that is difficult to discern. Concerning a convert, the SHULCHAN ARUCH (YD 268:1) rules like the Rambam that a convert also needs Hatafah but without a blessing.


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