If a Man Gives a Woman a Lamb in Exchange for Sex

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Like most of the tractates in Seder Kodashim, the division of the Talmud that deals with “sacred things,” Temura is primarily about animal sacrifice—in particular, the rules governing the substitution of one consecrated animal for another. Reading these tractates, it’s easy to forget that at the time they were written down, Jews had not actually been able to sacrifice animals to God for hundreds of years. The Temple altar was the only place in the world that God would accept sacrifices, and it was destroyed in 70 CE; ever since, Jews have been able to study these laws, but not practice them. They exist in a kind of virtual state—which is ironic, considering that they are some of the most concrete and physical matters in the Talmud, concerned with literal flesh and blood.

The Talmud seldom explicitly reckons with the fact that the laws of animal sacrifice are in abeyance. One exception comes in Chapter 5 of Temura, when the rabbis address the issue of whether it is possible to use “artifice” to get around the obligation to sacrifice every firstborn animal. The problem is that while there is no place to actually sacrifice such animals today, they are still born consecrated to God, which means that they can’t be eaten, shorn, or used for labor. Rather, one is supposed to let them alone until they develop a blemish that would render them unsuitable for sacrifice. Only then is it permitted to derive benefit from them, since they can no longer even theoretically be brought to the altar.

Obviously, in our Temple-less times, this is a frustrating waste of resources—a farmer is obliged to feed and care for a sheep or an ox indefinitely, until it happens to get injured or disfigured. One solution might be to inflict a blemish on the animal deliberately, but this is prohibited, since a consecrated animal belongs to God. However, as often happens in the Talmud, where the law creates a problem it also offers an ingenious solution. “Rav Yehuda says, it is permitted to inflict a blemish upon a firstborn before it left the womb and entered into the air of the world,” says the Gemara in Temura 24b. After all, an animal can’t be a firstborn until it is actually born; while it is in the womb it is not yet consecrated. So you can reach into the womb and, say, clip the fetus’ ear, knowing that it will be born with a blemish that disqualifies if for the altar.

The Gemara questions whether Rav Yehuda’s technique might not be a little too clever. After all, the mishna says that it is only possible to change the status of a firstborn fetus by consecrating it to an even more important sacrifice. For instance, if you declare that the animal, once it is born, will be a burnt offering, that status supersedes its original destiny as a firstborn offering. But this is quite different from making the fetus less sacred. How does Rav Yehuda justify his “artifice”?

The Gemara’s response, unusually, invokes the reality that we are living in post-Temple times. “When the Temple is standing,” it’s true, the sanctity of a fetus can only be made higher, not lower. But “today, when offerings are not able to be sacrificed,” things are different. Effectively, God is not being deprived of anything when you deliberately blemish a firstborn animal, since that animal couldn’t have been sacrificed anyway.

A blemished animal and a tereifa, an animal that is “torn” or injured so that it is going to die within 12 months, are unfit for sacrifice. So are animals that have been used for what the Torah calls “abominations”—specifically, bestiality and idol worship. Indeed, the ban on these practices is so stringent that, as the mishna explains in Temura 28a, if such animals are accidentally intermingled with a flock of normal animals, the entire flock is unfit for sacrifice. Indeed, the Gemara says that even if only one forbidden animal gets mixed up with 10,000 permitted ones, they are all unfit for sacrifice. However, it is still permitted to derive benefit from them in other ways—for instance, such animals may be sold and the proceeds used to buy an acceptable replacement.

Another category of animal that the Torah forbids from being sacrificed is “the payment of a prostitute.” If a man gives a woman a lamb in exchange for sex, that lamb can’t be offered up on the altar. This point gives rise to an interesting discussion of the definition of a prostitute in Jewish law. As written, the law assumes that the prostitute is a woman and the client a man. Does this mean that if a man is paid for sex, either with a man or with a woman, it doesn’t count as prostitution?

According to Rav, a man who pays a man for sex is engaging in prostitution, and any animal used as payment can’t be sacrificed. But Yehuda HaNasi argues that if the client is a woman, it is not considered prostitution. He acknowledges that “there is no proof for the matter,” since the issue is not addressed specifically in the Torah. But he cites a passage from Ezekiel, in which the prophet chastises the Jewish people for acting unnaturally: “The contrary is in you from other women, in that you did solicit to prostitution, and were not solicited and in that you have hire, and no hire is given to you.”

In other words, the Jewish people is compared to a woman who hires a prostitute, which is considered doubly unnatural, since ordinarily it is the woman who is paid by a man for sexual services, not vice versa. On the strength of this verse, Yehuda HaNasi argues that when a woman pays a man for sex, it is not prostitution in the legal sense. This might seem like a long way from the laws of substitution in animal sacrifice, but one of the fascinating things about the Talmud is the way any subject can end up leading to any other.

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Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.