Saturday, October 31, 2009

Isha ubita from adultery

In memory of my great-great grandfather, Harav Yosef Michel Newberger, whose 75th yahrzeit was on Friday.

This is related to a point discussed in the Noda Biyehuda: this man should not have married the daughter of the woman with whom he had an affair, but it's midirabanan so now that he is married and has not repeated the aveira he may remain married to his wife.

I was looking at the gemara related to this din - Yevamos 97a: The mishna says if someone seduced or raped a woman he is allowed to marry her mother, sister or daughter, and it is not a prohibition of isha u'bitah or isha v'achosa. Then the gemara asks a contradiction: one who was leaning from a woman "hanitan min ha'isha"is forbidden with her mother, her daughter and her sister midiraban. How can our mishna say he's allowed to marry her close relative? (Note: hanitan implies they were not married but had a relationship.) The gemara answers he may marry her sister, mother or daughter after she dies. But while she is alive he may not.

The Rambam (Issurei Biah 2:11) paskens this gemara on 97 a bit strangely: One who had illicit relations, her seven relatives do not become prohibited to him. But the chachamim forbade one who committed adultery with a woman, to marry any of her 7 relatives as long as the woman (zonah) is alive. Because the woman (zonah) will visit her relative and he will be alone with her and his heart will desire her and they will come to an aveira. And moreso, even if he was leaning on a woman (nitan al ha'isha) he should not marry one of her relatives until she - the one he leaned on - dies. If he married the relative he does not have to divorce her. Why dies the Rambam list the cases separately? Maybe because the first case is where we knew there was a relationship and the second case is where it's only rumored. Or, the first case is an illicit relationship - maybe with a married woman, and the second case is where it was a permitted relationship (kiddushin would be tofsin) but it was outside of marriage.

I recalled the mishna in Yevamos 24b: one leaning on a servant "nitan al hashifcha" and she was freed; or on a non-Jewish woman and she converted, ho should not marry her, but if he did, he does not have to diverce her. One who leaned on a married woman "hanitan al eishes ish" and her husband sent her away [i.e., divorced her] even though they got married, he must divorce her. Why does 97a say min ha'isha and on 24 it says al hashifcha etc.? I think that on 97 the relationship ended. Still it's asur to marry her relative until she dies. On 24 it's a case where the relationship is ongoing. In fact, Rav Moshe Feinstein in Igros Moshe E"H 27 quotes himself in Dibros Moshe Yevamos (I think it's page 312 - hearos Yevamos perek 2 os 52) that the problem in the cases on daf 24 was that these relationships were rumors, and the subsequent marriage gives validity to the rumors. But where it's known, and it's not a rumor, it is not prohibited to marry the freed shifcha or convert.

Famous Teshuvas Harambam 132 in Pe'er Hador about this nitan al hashifcha; he's matir not because it's really mutar, but because of Takanas Hashavim.

Teshuvos Rabi Akiva Eiger 121 (in Even Haezer) discisses a shaila where a woman claims to have converted with her daughter. The validity of the conversion was in question because it was from a faraway place and was never confirmed; she married a man, there were rumors he was playing around with the daughter, and after the mother died he went around until he found a rav who would marry them (he omitted some details and when that Rav found out all the details he was very upset about it). So he discusses both these issues - the nitan al ha'isha and also isha u'bita in an unusual circumstance.

As always, see those teshuvos inside for the context and exact circumstances discussed.

Thursday, October 22, 2009

Parshas Noach - Mesora in Torah Shebiksav

Chumash is Torah Shebiksav. When we speak of Mesora, we mean Torah Sheb'al Peh. Interestingly, there is a Mesora of the proper text of our Sifrei Torah. Unfortunately I do not have time to discuss this is detail; I can only give a brief introduction at this time.

The last Rashi in Parshas Noach (11:32) says that the nun in the word Charan is turned over (think of the nuns around vayehi binso'a in Beha'aloscha; but see Minchas Shai there about how the nun looks). The Minchas Shai asks that none of our sifrei Torah have an inverted nun. Are our sefarim kosher? Short answer: yes. He quotes a Teshuvas HaRashba (meyuchasos LeRamban, 232) quoted by Beis Yosef, Y"D 175 who discusses that there are several instances where a word has (or doesn't have) a yud or vav to make it "malei" but we have drashos in Gemara or Midrash that have the word spelled the other way. Many quote from Kiddushin 30a that we (already in the time of the gemara) are not experts in malei and chaser spellings. (About this, see Tosfos, Shabbos 55b s.v. Maaviram, and Gilyon Hashas there, by Rabi Akiva Eiger, who goes through many cases in Tanach were there is a discrepancy). Note that none of these spellings changes the meaning of the word. An answer which has been suggested to explain these differences have to do with the spellings of words in Ksav Livnai as opposed to their spellings in Ksav Ashuri (which we've used since the time of Ezra. See Sanhedrin 21b-22a, and Tosfos Megilla 2b s.v. ve'od).

The small Koren Tanach in the back has a list of differences between texts; there are three in Chumash. One is in this week's Parsha (9:29): Vayehi Bnei Noach or Vayihyu bnei noach.

There are also minor discrepancies where a parsha (blank space in the Torah, almost like a new paragraph) is different in our Torah versus what the Gemara says: In Lech Lecha - by the Bris Bein Habesarim. Se Tosfos Brachos 7b s.v. Lo haya. (About that, see Tzlach there; Netziv in Harchev Davar Breishis 15:8; also my uncle's friend Leesh showed us that Chadashim gam Yeshanim by R' Yehonasan Steif, and Birkas Yitzchak by R' Yitzchak Bernstein of England in Brachos briefly discuss this issue.) The Koren Tanach also lists a discrepency of whether a parsha is at Vayikra 7:28 or 7:22

Rambam, Sefer Torah 8:4 discusses that there are discrepancies in these matters; many of them are machloksim between Ben Naftali and Ben Asher. Rambam found a Torah fixed by Ben Asher in Egypt and lists the locations of all the parshios based on that Torah in Mishna Torah.

Another point which is probably more minor is the idea of Tagin - little "crownlets" on letters. Rabi Akiva made drashos on letters based on how many tagin they have. Some have none, some have one, and the letters "Shatnez Gatz" have three. See Meiri Kiryas Sefer Maamar 2 Cheilek 1 who only discusses Shatnez Gatz. But there are exception - som have four, and some letters sometimes have more than usual. See Ramban Devarim 27:3, that the tagim were copied from the avanim. (See Griz Stencils Menachos 29b.) The ArtScroll Baal Haturim (Davis edition) goes into some depth about tagim because the Tur sometimes discusses them. See there, Vayikra 23:43 (p. 1257) and footnote 138: Sefer Tagin "lists 55 instances where Kof is embellished with 4 tagin and 74 where the final kof has 4 tagin. Basukos in our pasuk isn't on the list, but basukos in pasuk 42 is...either he had a different text or the Raal Haturim has a different mesorah than Sefer tagin."

Tuesday, October 6, 2009

Thoughts on this Noda Biyehuda

In memory of my rebbi, Hagaon Harav Ahron ben Hagaon Harav Moshe Halevi Soloveichik zt"l on the 4th day of Sukkos, his eighth yahrtzeit.

Several points in no particular order:

1) Possible nafka mina based on this teshuva: If I know that someone intends to marry someone who is assur to him (or her), even if the issur is not known except to me, must I inform him? (Mamzer shelo noda may be an exception, but that’s midin mamzer shelo yada, not this more general rule discussed here). Probably I must inform the "kosher" person (whether it's a kohen about to marry a zonah or whatever else it may be), but if it's not a known psul, do I have to tell the local beis din? Not sure.

2) Rav Ashi – does he hold mesayei’a is chayav? In the context of this NB, when you leave the shatnez on, you’re mesayei'a by not contorting yourself into a position to remove it. When you remove it, you’re not chayav for the the time it takes to remove it, because in your action of removing it we see you do not want to be wearing shatnez, so you’re not mesayei’a. Why would I say a strange svara like this? This might be better for a Makkos post. Makos 21b (Noda Biyehuda calls it Machlokes Rav Beibo and Rav Ashi – but it is a machlokes Rav Acha brei D'Rav Ikka and Rav Ashi in response to a question posed by Rav Beibo.

My feeling - I don't think I can go through the sugya here, but does the din of mesayei'a apply only to cutting off peyos & beard, or does it apply to all aveiros? I felt, based on Tosfos, Shabbos 93b s.v. Amar Rav Zevid, that mesayaie'a only applies to peyos and beard. Then I saw my rebbi zt"l (whose yahrzeit is today) in his sefer Od Yisrael Yosef Bni Chai (siman 34) discusses the machlokes Shach and Taz in Yoreh Deah 198 about cutting nails for a woman who needs to go to mikva on shabbos or yom tov, mentions the whole Taz (se'if 21) and Shach (in Nekudos Hakesef) there. As Taz holds mesayei'a applies to other aveiros, like Shabbos. Rav Ahron strongly agreed with the Shach, that mesayei'a is only chayav for peyos. And he said the machlokes Shach & Taz is a machlokes Rambam & Raavad.

Rav Ashi is the one who says mesayei'a is chayav even as a nikaf; Rav Ashi in Shabbos 93b gives a proof that mesayei'a ein bo mamash, and Rav Ashi said if you leave the shatnez garment on you're chatav multiple times. In general Rav Ashi holds mesayei'a ein bo mamash except for peyos. Then why for shatnez are you chayav? So it's probably NOT a din in mesayei'a. Maybe the drasha (in Makkos 21 and 4b) "sadcha kilayim lo" applies to wearing shatnez also. But we get back to the question that it's lav she'ein bo maaseh, so why would you be chayav for not removing the shatnez garment? Maybe because in this case Rav Ashi holds mesayei'a is chayav. This is not compelling, but I don't know how else to explain it.

3) "David (i.e., Tehillim) for this matter will strengthen in his heart the love of his Creator." NB seems to hold like Baal Hatanya and not Nefesh Hachaim about torah lishma and tehillim. Baal Hatanya holds Torah Lishma is dveikus, love of Hashem & Torah, and saying Tehillim can lead to this. Rav Chaim of Volozhin in Nefesh Hachaim says Torah Lishma is studying Torah because you like it, for its own sake. Nefesh Hachaim brings a Rosh in Nedarim to support his opinion.

4) "we do not find isur mosif unless another prohibition is added or an obligation" – this is machlokes nosei keilim See Bach, Shach and Taz by basar bchalav (Siman 87) would the issur of basar b'chalav be added onto a piece of treif meat – chaticha naasis neveilah wouldn't apply to mechaber on a piece of treif meat but would apply to basar bechalav. Not sure how that halacha fits with NB.

5) "see Chagiga 9b that an adulterer's sin continues because he cannot rectify it."
Chagiga 9b says arayos is me’uvos lo yuchal liskon because you can never make her muteres l’baalah. It might be considered an isur moshech (a continuous sin) – Rogatchover in Tzofnas Panei’ach, Pinchas (Bamidbar 13, pp. 261-3) says that murder and being boel a non-Jewish woman are isur moshech, that continues on. Could be that arayos of eishes ish is also moshech, it continues, because there is a permanent effect on the woman – she is forbidden to her husband – because of the aveira. (In regard to murder, think of the passuk kol dmei achicha tzoakim when Kayin killed Hevel, Hashem said the voice of the bloods of your brother cry out - bloods for his blood and the blood of his descendants who will not be born now that he was killed.)

6) Is a sin of arayos, like eishes ish, considered bein adam l'chaveiro or bein adam l'makom? NB says eishes ish has two parts, the bein adam lamakom, and bein adam lachaveiro part in that he makes the woman forbidden to her husband (it's a sin against the husband).

Rambam seems to hold arayos is bein adam lamakom. See Hil. Teshuva 2:9 - "Teshuva and Yom Kippur only atone for aveiros bein adam lamakom like someone ate something forbidden or had a forbidden relationship (ba'al b'ilah asurah)." This is probably incest arayos, but Eishes Ish probably also has a bein adam lachaveiro aspect.

Gra in Aderes Eliyahu, Haazinu (Devarim 32:5), says there is a third category of sins - bein adam l'atzmo, and that arayos are part of this group.

Thursday, October 1, 2009

Noda Biyehuda - Part 6 (end)

In memory of Rabbi Meyer Juzint, Harav Meir ben Harav Hakadosh Rav Moshe zt"l, whose yahrzeit is on the second day of Sukkos.

That which you mentioned from his hasmadah inlearning, his broken spirit and his watching his speech is a great foundation upon which to rely. He should make an oral vidui to fulfill “and my sin is always before me,” and be remorseful. Now, one must do vidui on a small sin, even a dirabanan. He had a relationship with this woman, so before his marriage he was forbidden to marry her daughteras we see in Yevamos, perek Nosin al haanusah, but now that he is married he does not have to divorce her as is explained by Rambam and Shulchan Aruc E:H 15:33. Since before the wedding he transgressed a dirabanan and need remorse he must distance his mother-in-law from his house; she should not come at all, for if she does, he must divorce his wife according to the Rama there, se’if 27, and certainly he may not live in her house. Chazal said: whomever lives in the house of his in-laws… certainly here where he already stumbled.

Even though I am lenient in fast, etc. for this man, to exempt him without anything is impossible, especially because of the consistency of the sin. Hasmadah in Torah is paramount. He should learn things of substance like mishnayos in great depth with Tosfos Yom Tov, Shas, Poskim, Tanach, and also mussar books – Chovos Halevavos from after Shaar Yichud to the end and the Shla where he does not discuss Kabbalah, and Hilchos Teshuva of the Rambam. He should cling to the songs and praises of King David (i.e., Tehillim) for this matter will strengthen in his heart the love of his Creator. But other prayers and supplications from the past few generations he should distance himself (one line I’m unsure how to translate). At every midnight he should cry on the destruction [of the Mikdash] and for the exile. Since he is a weak man and he learns much Torah he should not fast in the summer, when there is extreme heat like Tamuz, except for Erev Rosh Chodesh, and the rest of the summer he should fast one day a week, except Elul when he should fast 2 or 3 days, according to his strength, and he should fast every day of the Aseres Yemay Teshuva, and in the winter from Cheshvan until Nissan he should fast three days a week, and one of them should be a complete fast of an evening and the following day. He should do this for three consecutive years (corresponding to the three years of his forbidden relationship) and if he consistently wakes at midnight and midnight does not pass and he is till asleep, and if he stands guard until the light of day, and not necessarily standing, but sitting is okay, as long as he does not “batel”his Torah learning and Tehillim from midnight, then he can lighten his load a little from the fasts and fast only twice a week in the winter.

More acts of penitence – you already mentioned that he does not sleep on a bed at all, and it is sufficient. He should distance himself from laughter (schok – probably includes joking around) – he shouldn’t for three years; what place does happiness have while he mourns for his sin. He should not look at women. These whole three years during the week he should not drink wine of any type of a warming drink except tea with sugar and sometimes a little coffee. On his wife’s onah night he may drink these drinks and I will not tell him what his onah is; he is not allowed to steal his wife’s onah, and it depends on his temperament and nature, and he should choose the middle path and he should not be too strict with what is permitted to him, and Chazal have said “the left [hand] pushes away and the right draws near.” And he should to tevilah for keri. After the end of three years in the second three years he fast Monday and Thursday in the winter and for the summer he should do like the first three years, and in the second three years he may sleep on a bed if he wishes, and according to his strength (if he is well enough to have a rough bed, he should have that and not a more comfortable bed). For the rest of his life he should fast once a week in winter and in the summer erev Rosh Chodesh to fulfill “my sin is always opposite me” and between Rosh Hashana and Yom Kippur he should fats every day (except Erev Yom Kippur – Ed.).

You mentioned he is wealthy, so he should give a lot of tzedaka. And how good it will be if he follows the teshuva set out by the Rokeach [in this matter of charity]. I currently do not have the Rokeiach to to look, but he should see the fasts for eishes ish, and maybe also for niddah because he wasn’t careful about her niddah days [if he was already being boel an eishes ish]. He should multiply the number [of fasts] three times according to the Kneh Chachma and the total days he should redeem with tzedaka according to the calculation of S”A O”C 334 each day is 12 coins, should be 18 coins according to the Magen Avraham’s calculation (34) in the name of Terumas Hadeshen, and he should distribute it to tzedaka if possible without his wife’s instruction, and still he should fulfill the fasting I arranged, “and may the Merciful One forgive the sin” and turn from his sin and be forgiven.

That which I said he should also fast for Nida, the prohibition of nida comes over the prohibition of a married woman because it is an issur mosif, since the nida becomes prohibited to her husband. That is only if their first adultery was when she was a nida- then he also violated nida, even though [the prohibition of] being a married woman came first, still it is an isur mosif, but if the first adultery was when she was not a nida, then immediately she became forbidden to her husband because of her infidelity, then when she became a nida, the isur nida does not come at all, because nida is not an isur mosif to anybody, because she’s forbidden to everyone because she is married, and now she’s even prohibited to her husband because of her infidelity, and even though the prohibition of nida is stricter that her being unfaithful in that nida carries a punishment of kares, a prohibition does not cover another prohibiton (ein issur chal al issur), not even a strict issur on a less strict one unless it is issur kolel or issur mosif. Then if they committed a second act of adultery when she is a nida, he is only liable for eishes ish and not nida. To suggest that nida is issur mosif since it takes effect on an unfaithful woman, even though we are impure for the dead, there is a difference in halacha to also be a nida in regard to imparting tumah upon your chair – my heart does not agree with that because in all of shas we do not find isur mosif unless another prohibition is added or an obligation (like another punishment) but through method of transmitting tumah is not an issur or obligation to be considered isur mosif. And to say that there is an additional obligation according to the opinion that one who enters the Temple mount today in a state of tumah receives Kares, for kedushas mikdash never left, and if isur nidda is added for that it should be added also here, for adultery – I don’t know of any source that nidda is another obligation when she enters har habayis, because there is already a liability of kareis for entering the mikdash in a state of tumas mes. And I saw in the sefer Kaftor Vaferach a question why don’t we offer the daily and mussaf korbanos and all communal sacrifices and korban pesach nowadays [after the destruction] because we pasken we may bring korbanos in the absence of the Beis Hamikdash (note: the opinion that one may enter har habayis today does not agree with this)? He answered since we don’t have a kohen meyuchas. But we know of kohanim meyuchasim, we could bering a korban pesach, this woman on pesach may enter the courtyard of the Mikdash and eat the korban pesach in a state of tumas mes, now that she is a nida, a prohibition was added in regard to pesach, so let the prohibition be added in regard to adultery? This depends on the opinion that the kedushas mikdash did not end, I doubt this and the matter needs investigation.

That was to teach for another situation such as where the huband was accidentally (shogeg) obligated for coming to the mikdash in a state of impurity, in that case we say one prohibition does not cover another prohibition. But for repentance, he is certainly obligated to repent for all prohibition he violated, even if ein isur chal al isur. For more sins he is considered a bigger rasha. This is a machlokes tanaim Rabi Yosi and Rabbi Shimon in Yevamos 32b … the difference is to bury him among complete reshaim. So even if he only receives one punishment because of ein isur chal al isur, his evilness is increased because of the additional prohibition to bury him among completely evil people, so he must doe teshuva for it. Tosfos there s.v. bein writes that Rabi Shimon holds even if this act includes two prohibitions, since he is only punished for one of them he is not burined among completely evil people, to Rabi Shimon his evilness was not increased due to the second prohibition, then he would only need teshuva for the first sin, and to Rabi Yose he must do teshuva for both, and in a machlokes Rabi Shimon and Rabi Yosi the halacha follows Rabi Yosi.

This is the end of the teshuva.