Pilegesh - Part 1

There is a machlokes Rishonim if it's mutar to have a pilegesh, but even if it is theoretically mutar midioraissa, it's practically (l'maaseh) prohibited. I will present sources from many places to paint a unique picture of pilegesh, and many of the involved issues.

The first source is Rashi & Ramban on Breishis 25:6, based on Sanhedrin 21a. The Gemara there says: Nashim (wives) are with kiddushin and kesubah, and pilagshim (concubines) are without kiddushin and kesubah. Rashi in Breishis says "nashim are with kesubah and pilagshim are without kesubah," Ramban asks against Rashi for implying pilegesh has kiddushin, and only lacks kesubah. (One point: Ramban asks that kesubah is only dirabanan, that's not so clear; most rishonim agree with that, but Tosfos, Kesubos 10a s.v. amar brings an opinion that kesubah is dioraissa.) Rashi may be based on Rabi Meir's opinion in Yerushalmi Kesubos 5:2.

Hosafa to Parshas Ki Sisa: Kiyor

Of central importance to this post was the idea that Rashi held that Moshe's service as kohen gadol during the seven inaugural days were considered as service in the mishkan itself. However, Rashi at the very end of Parshas Pikudei (40:29, see also Rashi to Pasuk 31) says something very strange. The pasuk says that Moshe brough the olah and mincha on the mizbeiach. Rashi says "Even on the eight day, the day of erecting the Mishkan, Moshe served [as Kohen Gadol] and brought the communal offerings except those [special korbanos] commanded only for that day...." So he actually served as Kohen Gadol on the eighth day, when it certainly had the status of Mishkan.

This contradicts what Rashi says in Zevachim 19b s.v. Moshe, that Moshe and Aharon did not serve as Kohen Gadol at the same time. There are other Rishonim who say that Moshe served as KG on the eighth day, see Shita Mekubetzes, Zevachim 19b 3 in the name of the Ra"m.

The Netziv in Haamek Davar, 40:23, says that there were two versions of Rashi and he changed his mind; I guess at first he felt Moshe served on the eighth day, then he changed his mind that Moshe did not serve on the eighth day. (I was not sure what the Ramban was saying in Rashi.)

See also Torah Shleima 47 and 55* at the end of Pikudei about Rashi.

There is a third opinion as to the duration of Moshe's service as Kohen Gadol. The makshe in Tosfos, Avodah Zarah 34a s.v. Bameh holds that for all 40 years (until his death) Moshe was considered Kohen Gadol. He bases it on Zevachim 101b: Rav said, Moshe was kohen gadol and took a portion form kodshai shamayim. The Gemara does not say explicitly that he was kohen gadol until his death, but that is how the maksheh in Tosfos A"Z learns.

Maybe Moshe only served as Kohen Gadol for the seven days, or even the eighth, and he never served again. But once he served, he retained some special status. (Whether people in Galus [for killing accidentally] needed to wait for Moshe's death to be free, I do not know.) Maybe the makshe in Tosfos in A"Z doesn't mean Moshe was actually the Kohen Gadol the rest of his life, but he had some special status that must have manifested himself in certain ways, like in his dress. See Shiurei Rabeinu Meshulam David Halevi Zevachim Dapim 2-25 (Jerusalem 5767, edited by A.C. Shpiegel) p.387 who brings Rav Chaim as mentioned by the Brisker Rav something along these lines: Moshe served for the seven inaugural days but that doesn't mean he lost his status after that; he was not a zar (non-Kohen) and needed to wash from the kiyor when he entered the Mishkan.

Freeing Your Slave - Part 4

What the Rishonim say about freeing your slave.

Group 1
Ritva, Gittin 38b. Rabeinu nr"u wrote, from here we see that it is not a real aseh, rather only a rabbinic prohibition, and they connected it (asmachta) to a pasuk, and Rabi Akiva who says it is an obligation, means a rabbinic obligation.

Meiri, Gittin asks on this opinion that it is only midirabanan: it does not seem so, for we certainly pasken like Rabi Akiva that is in an obligation. Furthermore, Rabi Eliezer also holds like him, but holds that the aseh, even though it is from the Torah, he was lenient in it in place of another mitzvah, since it is not equal to eveyone, since there is no obligation to acquire a slave to fulfill the mitzvah of leolam bahem taavodu. (Interesting; we'll return to that concept when we discuss zonah.)

Group 2
Ramban Gittin 38b s.v. Mitzvah Shani. And because of the mitzvah to dave with a minyan we will push aside a mitzvas aseh in the Torah? It's possible that the Torah only said leolam bahem taavodu because of the prohibition against giving them a gift for no reason (matnas chinam) like it says regarding an idolotor: lo sechaneim. But when he freed him when he (the slave) paid for himself, or because of a mitzvah or need of the master, it isn't for no reason and is allowed. And we can also answer that it does push off a mitzvah in the Torah since "when Hashem comes to a beis knesses and does not find a minyan, He immediately gets angry." (Interesting - see what I wrote in point 2 in Part 2. I hadn't seen this Ramban at that time.)

Chiddushei HaRan, Gittin 38a s.v. mitzvah shani. As if to say, the Torah did not say leolam bahem taavodu except not to free them for no reason, but when he frees him because of a mitzvah, it's like the slave paid the master for himself and is allowed.

Rashba Gittin 38b s.v. ha diamrinan asks on the first answer of Ramban: The isur of lo sechaneim does not apply to Ger Toshav and Eved Knaani. (That's his opinion; Ramban and Ran certainly held it does apply.) Rather, here because of a public mitzvah or to stop many people from an aveira (that was another case) it's allowed.

Regarding Lo Sechaneim, Rav Ahron Soloveichik had amazing Torah on this subject. See Od Yisrael Yosef B'ni Chai, Siman 3, and Perach Mateh Ahron, Hil. Avodas Kochavim 9:16.

Other
Rashba, Shabbos 4a s.v. ha diamran (near end) says that for a half-slave, half-free (where one partner in the slave freed his portion of the slave) there is no law of leolam bahem taavodu because of the free part of him.

This Rashba has no application to the case of Rabi Eliezer.

Freeing Your Slave - Part 3

Beis Yosef, Orach Chaim Siman 306:

The Rashba was asked: someone sent him a question on Shabbos, his daughter was forcibly removed from his house by a yisrael mumar to remove her from klal yisrael, if he can forcibly chase them on Shabbos lest the mumar scares her into denying her faith, may he travel even outside the techum shabbos or do other melacha, for this doubt (whether he will be successful in bringing her back) may he be mechalel shabbos like we may be in a case of safek nefashos? Rashba answered the matter must be studied, but he leaned towards saying that one may not be mechalel shabbos to save someone from sinning, as we see (Shabbos 4a) we do not say sin so your friend will benefit. Even a small sin is not allowed to save your friend from a big sin...

But Tosfos in Shabbos wrote at first like the Rashba but then asked from the mishna, a half-slave, half free man - we force the his master to free him, yet we hold whomever frees his slave violates a positive mitzvah, and Tosfos answers pru u'revu (procreation) is different because it is a great mitzvah. Another answer is only when one acted in a negligent manner and stuck the bread in the over shortly before shabbos do we not let someone violate a mitzvah on his behalf, but here he was not negligent we allow one to do a small aveira to save him from a great aveira... To the answer of "a great mitzvah," to save her from apostacy, and to the answer of negligence, she was not negligent [but rather was forcibly removed], to be mechalel shabbos to save her is allowed and is a mitzvah to do so and if he [the father] does not want to go, we would force him...even to desecrate shabbos with biblical prohibitions to save her is allowed because to save her from apostacy and her living the rest of her life desecrating shabbos, we say to desecrate shabbos now to save her is a small aveira.

This argument was raised a generation ago in regard to desecrating shabbos to save Jews stuck in the Soviet Union. For example, see Rav Shaul Yisraeli, Chavot Binyamin, siman 14. My gut reaction would be that it is not permitted. Why not? By that time (I think this was in the late 1970's & '80's) a majority of the Jews in the USSR had the status of tinok shenishba, a child raised in captivity among non-Jews (see Shabbos 68b and Rambam, Hil. Mamrim 3:3, and Shut Radvaz II 796 hashmata end of Chelek II). As tinokos shishbu, their not being rescued is not as big of an aveirah as saving someone who was shomer torah umitzvos but was removed to be "shmad-ed," so we wouldn't say this is a case of being mechalel shabbos to save future shabbasos. It was very important to rescue the Jews from the USSR, but from these shitos it would not override Shabbos.

That is how the Beis Yosef applies this halacha of freeing your slave to the question posed to the Rashba.

Parshas Ki Sisa: Kiyor

The Kiyor must contain water to wash four Kohanim. What is the source for this din? Rambam in Hil. Klei Hamikdash 5:13 brings the pasuk in Ki Sisa, virachatzu mimenu Aharon uvanav, and Banav included Elazar, Itamar and Pinchas. Kesef Mishna brings Rashi Zvachim (19b s.v. Moshe) who brings as the source a pasuk in Pekudei, virachatzu mimenu Moshe v'Aharon uvanav, and banav is 2 people, for a total of 4. What is the reason that Rambam can't use Rashi's pasuk, which seems to make a lot more sense? Usually a plural word is seen as indicating two. Why does the Rambam say banav includes Pinchas, a third person? Also, why does Rashi include Moshe in this law, but Rambam does not?

Avodah Zara 34 says that Moshe served as Kohen Gadol not with the special bigadim, but with a white cloak of some sort. Why didn't he wear bigdei kehuna? Rashi holds because v'asisa bigdei kodesh l'Aharon achicha - it's a pasuk that the begadim are for Aharon, not Moshe. Tosfos (s.v. bameh) asks: This is difficult - according to one opinion in Zvachim, Moshe served as Kohen Gadol for 40 years, and this Gemara should have asked with what garments did Moshe serve for 40 years...? And it appears that they specifically asked about the 7 days of Miluim because the bigdei kehuna were not yet sanctified as the pasuk says 'you will sprinkle [blood] on Ahron and on his garments [indicating this process also sanctified the garments].' And R' Yaakov m'Orleans answered that during 7 yemai miluim, the Mishkan had a din Bama (large communal altar whose use was banned when there was a mishkan or Beis Hamikdash), and there are no bigdei kehuna by a bama.

I would like to suggest that Rashi held Moshe's service during 7 yemai miluim was a full service of kehuna gedola, so the capacity of water in kiyor can be learned from Moshe's service during the seven days of miluim. Rambam, however, held like R Yaakov m'Orleans that 7 days of miluim were not like the mishkan, they were Bama. So Moshe did not serve as kohen gadol in the mishkan, so Rambam couldn't learn the minimum volume of the Kiyor from Moshe during the seven days of miluim, and had to use a pasuk that did not include Moshe, and he had to mention that Pinchas was one of the Kohanim.

With this in mind, we can understand another machlokes between Rashi and Rambam. Rambam says (Hil. Klei Hamikdosh 2:6) that the annointing oil must be made in a "kli shareis," a vessel of the mishkan/mikdosh. If so, there is a question: the vessels in the time of Moshe were sanctified by being annointed, but how could they have been annointed, because there was no sanctified vessels in which to make the annointing oil? This is the question of the Brisker Rav (see Stencils 110, Mishor ed.) who did not offer an answer. But the answer is found in Meshech Chochma (Shemos 39:33): Moshe made the annointing oil during the seven days of miluim before there was a status of mishkan and kli shareis. When the status of Mikdosh did not exist, you could make the annointing oil in a non-Mikdash vessel. This idea is in accordance with our understanding of Rambam's opinion. However, the question remains unresolved according to Rashi. Therefore the Meshech Chochma says Rashi is forced to agree with the opinion of Reish Lakish in Yerushalmi Shekalim 4:3 that if one made the annointing oil in a non-Mikdash vessel, it is acceptable.

For a related post, see here.

Freeing Your Slave - Part 2

Last time, I focused on the Gemara (Brachos 47) about Rebi Eliezer freeing his slave, to bring the Rosh about Parshas Zachor. This time we'll go through several Tosfos and a famous Beis Yosef about sinning to benefit someone else (i.e., to prevent him from sinning), "chatei kidei sheyizkeh chaveircha." But first I want to add a little to the previous post.

1. We see (or will see by the end of this post) that someone who transgresses an asei is considered a chotei. We say al cheit on Yom Kippur even for mitzvos asei.

2. How is freeing the slave mitzvah habaah baaveirah - the mitzvah is not fulfilled when the master frees the slave, the mitzvah is only fulfilled when they say kedusha or borchu or read parshas zachor? It could be that even before you say borchu etc. there already is a mitzvah involved when the minyan gathers. See Avos 3:6 the shechina dwells on a minyan in a special way. Even if that's not a proof, it's more explicit in Brachos 6b - when Hashem comes to Beis Medrash and does not find a minyan, He immediately gets mad. Why? My Rebbie Rav Moshe Soloveichik Shlit"a said unlike aliya laregel which is us going to Hashem's house, the Beis Hamikdash, a shul is our home for G-d. If a minyan is not present at the time of prayer, it is analogous to inviting a guest to your home but the host is late. Bad manners to say the least. So we see the assembly of a minyan already has a special status. Perhaps that is why Tosfos in Brachos considers freeing the slave as a mitzvah habaah baaveirah.

3. When Gittin 38b mentions the story of Rebi Eliezer freeing his slave, it just says "for a mitzvah, it is different," and does not say a public mitzvah like the gemara in Brachos does. In fact, Tosfos (Gittin 38a s.v. kol) says even the mitzvah of fulfilling the wishes of a dying man is enough to override "leolam bahem taavodu" and that is not a mitzvah dioraissa. So that Tosfos holds when there is a need, even "lekayim divrei hames" is enough to let us free the slave.

****

Shabbos 4a discusses if one put bread in an oven close to Shabbos, may he remove them from the oven (which is not mutar - Ran on Rif says it's asur midirabanan, Rif says it's just a chochma) before it reaches a level of being considered baked, because if it becomes baked you're chayav misa. It is not permitted for someone else to remove the bread from the oven, because one may not sin for someone else to benefit (in this case he won't be chayav misa).

Tosfos (s.v. vechi) asks from several cases, but I'll focus on the freeing of a slave because that's our topic. How can you free your slave, even if it's for a mitzvah (of minyan or parshas zachor) if you will transgress the asei of "leolam bahem taavodu?" Also, there is a gemara (Gittin 41b) if a slave was owned by partners and one of them freed the slave, the slave is in a state of limbo - he can't marry a Jewish woman because he's partially a slave, and he can't marry a shifcha because he's partially free. Therefore we force the second partner to free the slave. Tosfos asks how can we do this - the master sins to benefit someone else? Tosfos gives two answers: 1) For a great mitzvah, we do say sin to prevent someone else from sinning. Here, the slave will not be able to procreate, which is a great mitzvah, so it's better for the master to free him than for him not to fulfill procreation. This is the same logic as the gemara in Brachos - for a public mitzvah we do free the slave; something that important does override the asei of leolam bahem taavodu. 2) We only don't let someone to sin to save (protect) someone else when the latter acted in a neglectful manner, like putting the bread in the oven too close to Shabbos. But this eved was not in a bad situation becoause of his own negligence, so we don't prohibit the master from setting him free.

To be continued....

Freeing Your Slave & Parshas Zachor - Part 1

As promised at the end of this post.

Brachos 47b - ...Once Rebi Eliezer entered the beis knesses and did not find ten men [for a minyan] and he freed his slave to complete the minyan...How could he do this, for Rav Yehuda said, 'whomever frees his slave transgresses the positive commandment of "leolam bahem taavodu?'" For a mitzvah, it is different. But this is a mitzvah which comes about through an aveira? For a public mitzvah, it is permitted.

Rashi (s.v. mitzvah) says the public mitzvah is Kedusha, which the public couldn't fulfill without a minyan. To him, Kedusha is a mitzvah dioraissa (probably a kiyum of venikdashti, but not a chiyuv - the Chinuch 296 does not even mention this as part of the mitzvah of venikdashti. See, however, Torah Shleima Mikeitz (Breishis 42:5) 31 end - a befuddling matter is discussed in Shut Rashbatz Chelek II 163 someone who took a shvua not to be chazzan, the shvua does not take effect. He says, "It appears to be a mitzvas asei from the Torah, for to be chazzan is to be motzei other people their obligation for dvarim shebikdusha and kriyas haTorah, and both are from the Torah, because devarim shebikdusha they said...venikdashti...if so, someone who vows not to be chazzan is like vowing not to make a sukkah." Torah Shleima continues, we may note from the Maharil in hilchos Eruvei Chatzeiros (p. lamed alef amud alef) "Mahari Segal said he didn't see any posek allow one to make an eruv tchumin to go to beis knesses except the Smak and the sefer Agudah." It seems these rishonim hold it's even a chiyuv midioraissa, whereas Rashi and many Rishonim hold Borchu & Kedusha is only a kiyum of venikdashti.

(About the Rashbatz comparing this vow to a vow not to build a sukkah - but building a sukkah isn't a mitzvah! See Haamek She'eilah 169:1.)

Tosfos (s.v. mitzvah) aska, this episode is a question to the Behag who says one observes aveilus on the last (eight) day of Yom Tov (which is only midirabanan), and the mitzvah diribanan of the last day of Yom Tov does not push off the mitzvah dioraissa of aveilus...as we see here, Tefila dirabanan pushes off the dioraissa of leolam bahem taavodu....

Tosfos seems to hold either Kedusha is not included in the mitzvah of "venikdashti besoch bnei yisrael" or there was tefila betzibur without kedusha (maybe maariv, but highly unlikely. His shita of arvis (Maariv) reshus is [Brachos 26a s.v. ta'ah] that if another mitzvah comes at the same time as Maariv, you do the other mitzvah first. It is unlikely that Rebi Eliezer would free his slave for maariv which is only reshus.) Bottom line, Tosfos holds the mitzvah dirabanan outweighs the asei dioraissa of not freeing your slave.

The Rosh (siman 20), however, is more similar to Rashi: he freed his slave "for kedusha and Borchu, even though they have no source in the Torah. For it does not seem to me to be discussing a minyan for a dioraissa matter like to read Parshas Zachor...." Most Rishonim do not agree with this Rosh, for mentioning Amalek without reading parshas Zachor is enough. See Chinuch 603. Minchas Chinuch says explicitly: "to read Parshas Zachor out of a Torah and with a minyan is midirabanan, but midioraissa it's enough for each individual to remember it verbally, and this is simple." But the Rosh obviously holds there is a midioraissa requirement to read parshas Zachor with a minyan.