Shitas HaRambam
Melachim 4:4: Similarly [the king] may take from all the borders of Israel wives and pilagshim: wives with kesubah and kiddushin, and pilagshim without kesubah and without kiddushin, just with yichud (does he mean seclusion, or her being chosen or designated even before the seclusion with the king ever took place? In other words, is he using Yichud in the ishus meaning or not?) alone does he acquire her and she is permitted to him. But a hedyot is forbidden to have a pilegesh except for an amah ha'ivriah after yiud.
The Rambam's opinion is very clear that a pilegesh is only allowed for a king, and a commoner does not have a pilegesh except for ama ha'ivriah after yiud. There is no concept of common-law marriage as the definition of pilegesh. He holds Yiud obligates a man to provide for this woman as his wife, but this obligation did not take place through kiddushin. So the result is the same as marriage, but the mechanism is different - amah ha'ivriah with yiud versus regular kiddushin. In fact, the Rambam does not list the laws of yiud in Hilchos Ishus. They are codified in the fourth chapter of Hilchos Avadim. But some mechanism is needed to become "married," so a common-law relationship would not even be considered a pilegesh.
הלכות אישות פרק א
[א] קודם מתן תורה, היה אדם פוגע אישה בשוק--אם רצה הוא והיא לישא אותה--מכניסה לביתו ובועלה בינו לבין עצמו, ותהיה לו לאישה. כיון שניתנה תורה, נצטוו ישראל שאם ירצה האיש לישא אישה--יקנה אותה תחילה בפני עדים, ואחר כך תהיה לו לאישה: שנאמר "כי ייקח איש, אישה; ובא אליה" (דברים כב,יג).
[ד] קודם מתן תורה, היה אדם פוגע אישה בשוק--אם רצה הוא והיא--נותן לה שכרה, ובועל אותה על אם הדרך והולך לו; וזו היא הנקראת קדשה. משניתנה התורה, נאסרה הקדשה--שנאמר "לא תהיה קדשה, מבנות ישראל" (דברים כג,יח); לפיכך כל הבועל אישה לשם זנות, בלא קידושין--לוקה מן התורה, מפני שבעל קדשה.
We see what marriage is, we see what a kedeisha (commonly translated as prostitute) is - she will have a sexual relationship with anyone. Note that he does not discuss an intermediate case of common-law marriage - where she has a sexual relationship only with one person, but without kiddushin. Rav Ahron zt"l said that there are two parts to full ishus - the ishus of a non-Jew, which is the ishus of before matan Torah, and the second part is chuppa with eidim. I don't remember the context in which he said this, or what question he was answering with this.
Ravad 1:4 says that a common law marriage - where one woman had an exclusive relationship with one man is not assur midioraissa, and that is called a pilegesh.
Maggid Mishna 1:4 says the Rambam's opinion is that pilagshim have kiddushin but no kesubah. The Kesef Mishna (1:4) asks against the Maggid Mishna that the Rambam in Hilchos Melachim (4:4) explicitly says pilagshim have neither kiddushin or kesubah. Kesef Mishna also points out hw the Ramban in the teshuva also misrepresents the shitas Harambam, also by apparently not having the text of Hilchos Melachim as we do.
Some, including Ramban (Teshuva 284) ask against Rambam why a king can have pilegesh and a hedyot can't, that there is no source for it. We see, however, that Rabbeinu Yonah (Shaarei Teshuva 3:94) says "that a king, whom everyone fears, and no one will commit adultery with her." So that is reason enough to distinguish a king from a commoner. Margalios Hayam, Sanhedrin 21a paragraph 10 brings a similar Maharit: since a pilegesh of a king is forbidden to everyone else, she is not a kedeisha. Note: Many, including Margalios Hayam, ask against Rambam that Gidon was allowed to have a pilegesh because he was shofet - interesting source: see Frankel edition, Rambam Hil. Terumos 1:2, and Semag that a shofet is like a king for kibush rabim, hence a shofet may have a pilegesh (See Rav Ahron Soloveichik, Perach Mateh Aharon Ahava p. 159: A shofet cannot effect kibush rabim because he is only the leader over individuals, whereas a melech can, because he is the leader over all of Yisrael as one unit, not as many individuals. He published this piece in the 1960s in a Beis Yitzchok (RIETS) before the Frankel edition of Rambam was published and showed from manuscripts that a shofet does effect kibbush rabim; I never saw him use the Frankel Rambam even in the 1990s.) Note that this would not answer Ramban's question that we saw that the Pilegesh B'givah incident was where a commoner had a pilegesh. Rambam would answer simply that in those cases, a pilegesh was a woman who was originally an amah ha'ivriah, with yiud.
Monday, May 11, 2009
Sunday, May 10, 2009
Isha Zonah Vachalala Lo Yikachu
אִשָּׁה זֹנָה וַחֲלָלָה לֹא יִקָּחוּ (Vayikra 21:7)
Look at the roshei teivos (first letter of each word) - אזולי - AZULAI. Some suggest that this is the origin of the name Azulai, and it is a family name for kohanim. I heard once, but I haven't found confirmation, that it is a family name for chalalim (so people know of their psul).
Look at the roshei teivos (first letter of each word) - אזולי - AZULAI. Some suggest that this is the origin of the name Azulai, and it is a family name for kohanim. I heard once, but I haven't found confirmation, that it is a family name for chalalim (so people know of their psul).
Thursday, April 30, 2009
Ramban & Ibn Ezra - Uniqueness of Eretz Yisrael
The following was first published in Parsha Pearls, Chayei Sarah 2001 (year not on the original) by yours truly and is presented here in its entirety for Yom Ha'atzma'ut, and also for Parshas Kedoshim.
In this week's Parsha, we learn all that Avraham did in order to procure a burial plot for his wife, Sarah. Why did the Torah deem it necessary for us to know all these facts?
The ibn Ezra explains (23:18) that the Torah wished to show us two things. One, the importance of Eretz Yisrael for both the living and the dead, and two, the fulfillment of Hashem's promise to Avraham that Eretz Yisrael will belong to him and his descendants.
The Ramban (23:19) askes on the explanations of the ibn Ezra: How does this epsode illustrate the uniqueness of Eretz Yisrael for the living and the dead, just because Sarah died in Eretz Yisrael, and was buried there and not elsewhere. (If, however, she had died outside of Eretz Yisrael and was brought there for burial, this would illustrate the uniqueness of Eretz Yisrael.) Furthermore, the Ramban asks, Hashem's promise was to give the entire Eretz Yisrael to the descendents of Avraham, and this episode only refers to one small field. How do we see a fulfillment of Hashem's promise to Avraham?
The Ramban therefore writes that the Torah showed us this episode for two other reasons. One, to show us that Avraham was well respected by the Bnei Cheis, a fulfillment of the divine promise of "va'agadlah shimecha - And I will make your name great." (See Perek 12, Passuk 2.) Two, to record for us the location of the graves of our forefatehrs so that we can honor those places.
My rebbie, Harav Moshe Soloveichik, Shlit"a, suggested an answer to the questions of the Ramban on the ibn Ezra. Reb Moshe said that Avraham insisted on buying the fields from Efron, while he could have acquired it from him for free. This was to show that Eretz Yisrael is our land. The definition of Eretz Yisrael, as explained by Reb Yoshe Ber, and the roshe HaYeshiva, zt"l, is that which belongs to every Jew, not as shutfus (partnership). Avraham's purchasing the field from Efron made the field belong to the Jewish people. This answers the second question of the Ramban, because now that the land belongs to every Jew, there is a fulfillment of Hashem's promise. The answer to the first question of the Ramban can be seen by the differences that exist between the purchases of different pieces of property. When one buys a regular piece of property, like a house, he may eventually sell it. The purchase of a grave, however, is eternal. To illustrate this point, Reb Moshe gave the example of Har hazeisim: the fact that there is a cemetery prevents its being given away. In this way one can still be a supporter of Eretz Yisrael, even upon death.
I would like to add that the explanations of the ibn Ezra and Ramban are influenced by the way they define the uniqueness of Eretz Yisrael. The Ramban in Sefer Vayikra, Perek 18, Passuk 25, in addressing why Eretz Yisrael will eject sinners, explains that when Hashem created everything, He established a star or sign for each place. However, He created no such sign for Eretz Yisrael. Hashem Himself is the sign for Eretz Yisrael, and as such it is a holy place that cannot tolerate sinners. The Ramban says therefore that the kedusha of Eretz Yisrael is due to an external force [i.e., Hashem as the sign -ed.] , and as such he cannot learn the uniqueness of Eretz Yisrael from this episode. This is because he feels it was special for a different reason, not contained in this episode. The ibn Ezra, on the other hand, holds that Eretz Yisrael is special due to maasim (deeds) we do, and therefore we can learn the uniqueness of Eretz Yisrael from this Parsha, for it displays the great maasim of Avraham.
In this week's Parsha, we learn all that Avraham did in order to procure a burial plot for his wife, Sarah. Why did the Torah deem it necessary for us to know all these facts?
The ibn Ezra explains (23:18) that the Torah wished to show us two things. One, the importance of Eretz Yisrael for both the living and the dead, and two, the fulfillment of Hashem's promise to Avraham that Eretz Yisrael will belong to him and his descendants.
The Ramban (23:19) askes on the explanations of the ibn Ezra: How does this epsode illustrate the uniqueness of Eretz Yisrael for the living and the dead, just because Sarah died in Eretz Yisrael, and was buried there and not elsewhere. (If, however, she had died outside of Eretz Yisrael and was brought there for burial, this would illustrate the uniqueness of Eretz Yisrael.) Furthermore, the Ramban asks, Hashem's promise was to give the entire Eretz Yisrael to the descendents of Avraham, and this episode only refers to one small field. How do we see a fulfillment of Hashem's promise to Avraham?
The Ramban therefore writes that the Torah showed us this episode for two other reasons. One, to show us that Avraham was well respected by the Bnei Cheis, a fulfillment of the divine promise of "va'agadlah shimecha - And I will make your name great." (See Perek 12, Passuk 2.) Two, to record for us the location of the graves of our forefatehrs so that we can honor those places.
My rebbie, Harav Moshe Soloveichik, Shlit"a, suggested an answer to the questions of the Ramban on the ibn Ezra. Reb Moshe said that Avraham insisted on buying the fields from Efron, while he could have acquired it from him for free. This was to show that Eretz Yisrael is our land. The definition of Eretz Yisrael, as explained by Reb Yoshe Ber, and the roshe HaYeshiva, zt"l, is that which belongs to every Jew, not as shutfus (partnership). Avraham's purchasing the field from Efron made the field belong to the Jewish people. This answers the second question of the Ramban, because now that the land belongs to every Jew, there is a fulfillment of Hashem's promise. The answer to the first question of the Ramban can be seen by the differences that exist between the purchases of different pieces of property. When one buys a regular piece of property, like a house, he may eventually sell it. The purchase of a grave, however, is eternal. To illustrate this point, Reb Moshe gave the example of Har hazeisim: the fact that there is a cemetery prevents its being given away. In this way one can still be a supporter of Eretz Yisrael, even upon death.
I would like to add that the explanations of the ibn Ezra and Ramban are influenced by the way they define the uniqueness of Eretz Yisrael. The Ramban in Sefer Vayikra, Perek 18, Passuk 25, in addressing why Eretz Yisrael will eject sinners, explains that when Hashem created everything, He established a star or sign for each place. However, He created no such sign for Eretz Yisrael. Hashem Himself is the sign for Eretz Yisrael, and as such it is a holy place that cannot tolerate sinners. The Ramban says therefore that the kedusha of Eretz Yisrael is due to an external force [i.e., Hashem as the sign -ed.] , and as such he cannot learn the uniqueness of Eretz Yisrael from this episode. This is because he feels it was special for a different reason, not contained in this episode. The ibn Ezra, on the other hand, holds that Eretz Yisrael is special due to maasim (deeds) we do, and therefore we can learn the uniqueness of Eretz Yisrael from this Parsha, for it displays the great maasim of Avraham.
Monday, April 20, 2009
Schlissle Challa Minhag Explained
One year the shabbos after pesach, I was at someone's house, and they had baked a key in their challa. They told me it's a called schlissle challa and is (like so many other things) a segula for parnossa or something.
Last shabbos I figured out a rationale for this minhag (but not the connection to parnassa), why bake a key into the challa on the shabbos after pesach. First of all, it depends on having the minhag to give your key to the goy to whom you sell your chametz when you sell your chametz. Once you have that minhag, it makes sense that on the shabbos after Pesach, when you've bought your chametz back from the goy, you bake that key in a challa, to demonstrate that you again own your chametz (represented by the challa). Maybe the parnassa thing comes from the fact this key was used in a business transaction (the sale of the chametz) and you successfully completed that deal, so you hope your successful streak continues.
Last shabbos I figured out a rationale for this minhag (but not the connection to parnassa), why bake a key into the challa on the shabbos after pesach. First of all, it depends on having the minhag to give your key to the goy to whom you sell your chametz when you sell your chametz. Once you have that minhag, it makes sense that on the shabbos after Pesach, when you've bought your chametz back from the goy, you bake that key in a challa, to demonstrate that you again own your chametz (represented by the challa). Maybe the parnassa thing comes from the fact this key was used in a business transaction (the sale of the chametz) and you successfully completed that deal, so you hope your successful streak continues.
Sunday, April 12, 2009
Looking Back - More Sources
In memory of my friend Yonatan ben Nachum who passed away Shabbos morning. In honor of my friend Jacob, who became a bone marrow stem cell donor in Yoni's zechus (and in trying to find a match for Yoni).
Note: If I have additional sources I post them as comments to their relevant posts. This post in an exception.
Over Yom Tov, I was looking through R' Chayim Heller's sefer Hamitzvos and want to add some references to previous posts. Page numbers are to Sefer Hamitzvos Leharambam, Mahaduras Hagaon Rabi Chayim Heller, published by Mossad Harav Kook.
Related to post Freeing your slave, part 3: Saving Soviet Jewry - A new book, David Avdi, about Rabbi Dr. David Appelbaum zt"l H"yd, a tzaddik and talmid chacham, includes two chapters - one in Hebrew and one in English - about an Israeli intelligence operation called Nativ whose purpose was to reach out to and support Soviet Jewry and encourage their attachment to Judaism, Zionism and Israel - often at great risk to both Nativ operatives and Soviet refuseniks (David Avdi, p. 48). Rav Dovid zt"l travelled to the Soviet Union (on the strength of his American passport) to teach Torah and bring support to Soviet Jewry.
R' Chayim Heller discusses about putting yourself in safek sakana to save someone else on p. 174 note 11.
R' Aaron Rakeffet (Rothkoff) recruited Rav Dovid for this operation, and I've heard he plans to publish some of his experiences in his forthcoming memoirs.
Related to Post Parshas Ki Sisa-Kiyor: see p. 24 note 8 meshichas klei hamikdash - he feels there is a contradiction between Sefer Hamitzvos and Mishna Torah if being moshech the keilim is a mitzvah ledoros or only in the midbar.
Related to post Makos Mardus see p. 32 note 83 malkin ad shetetzei nafsho, some say you don't actually hit him till he dies, but R' Heller seems to say those opinions are not borne out by other meimras.
Related to post Hosafa to Parshas Ki Sisa, Kiyor end, what Rav Chaim said - see p. 43 If someone who enters the heichal without washing at the Kiyor, even if he does not enter to do avodah, if he's chayav misah. R' Chayim Heller doesn't discuss it, but would this apply to Moshe according to the makshe in Tosfos Avodah Zarah 34? Also, on the same page regarding the source of the law that the kiyor must have enough water to wash 4 kohanim - apparently someone changed Rambam's girsa to use Rashi's pasuk.
Indirectly related to Prohibition against intermarriage post see p. 109 note 18 if you get malkus for being boel aramis even if it is not ishus.
Not related to a previous post, but is related to Daf 87b - see p. 186 note 21 - Yam Shel Shlomo Yevamos says the Rambam doesn't pasken like this gemara (about a father's ne'emanus on his son), but the Rambam does pasken it in Isurei Biah 15:16. Very strange Yam Shel Shlomo.
Note: If I have additional sources I post them as comments to their relevant posts. This post in an exception.
Over Yom Tov, I was looking through R' Chayim Heller's sefer Hamitzvos and want to add some references to previous posts. Page numbers are to Sefer Hamitzvos Leharambam, Mahaduras Hagaon Rabi Chayim Heller, published by Mossad Harav Kook.
Related to post Freeing your slave, part 3: Saving Soviet Jewry - A new book, David Avdi, about Rabbi Dr. David Appelbaum zt"l H"yd, a tzaddik and talmid chacham, includes two chapters - one in Hebrew and one in English - about an Israeli intelligence operation called Nativ whose purpose was to reach out to and support Soviet Jewry and encourage their attachment to Judaism, Zionism and Israel - often at great risk to both Nativ operatives and Soviet refuseniks (David Avdi, p. 48). Rav Dovid zt"l travelled to the Soviet Union (on the strength of his American passport) to teach Torah and bring support to Soviet Jewry.
R' Chayim Heller discusses about putting yourself in safek sakana to save someone else on p. 174 note 11.
R' Aaron Rakeffet (Rothkoff) recruited Rav Dovid for this operation, and I've heard he plans to publish some of his experiences in his forthcoming memoirs.
Related to Post Parshas Ki Sisa-Kiyor: see p. 24 note 8 meshichas klei hamikdash - he feels there is a contradiction between Sefer Hamitzvos and Mishna Torah if being moshech the keilim is a mitzvah ledoros or only in the midbar.
Related to post Makos Mardus see p. 32 note 83 malkin ad shetetzei nafsho, some say you don't actually hit him till he dies, but R' Heller seems to say those opinions are not borne out by other meimras.
Related to post Hosafa to Parshas Ki Sisa, Kiyor end, what Rav Chaim said - see p. 43 If someone who enters the heichal without washing at the Kiyor, even if he does not enter to do avodah, if he's chayav misah. R' Chayim Heller doesn't discuss it, but would this apply to Moshe according to the makshe in Tosfos Avodah Zarah 34? Also, on the same page regarding the source of the law that the kiyor must have enough water to wash 4 kohanim - apparently someone changed Rambam's girsa to use Rashi's pasuk.
Indirectly related to Prohibition against intermarriage post see p. 109 note 18 if you get malkus for being boel aramis even if it is not ishus.
Not related to a previous post, but is related to Daf 87b - see p. 186 note 21 - Yam Shel Shlomo Yevamos says the Rambam doesn't pasken like this gemara (about a father's ne'emanus on his son), but the Rambam does pasken it in Isurei Biah 15:16. Very strange Yam Shel Shlomo.
Tuesday, April 7, 2009
Seder: Revava k'tzemach hasadeh
R' Gil inspired this with this post. It lacks a little polish, I apologize; I didn't have enough time to properly finish it.
I once gave a drasha in honor of my Bubbie, and part of it was this: Kiddushin 49b says that 10 measures of yofi came to the world and Jerusalem took 9 of them. What does this mean? The gemara a few lines lower says that the pasuk in Shir Hashirim 8 "achos ketana yesh lanu v'shadayim ain la" refers to Eilam that merited to learn Torah but not to teach torah. So the breasts represent the source of spiritual sustenance, (see also my Rebbie's zt"l hesped for his brother the Rav zt"l - about "birchos shadayim v'racham") and this is the yofi of Yerushalayim: Bava Basra 21a discusses the educational system and how Ben Gamla is to be commended for without him, Torah would have been forgotten in Israel. One of the takanos in teaching was that the children should be brought to Yerushalayim to learn as the pasuk says (Yeshaya 2) "ki mitzion teitzei Torah u'Dvar Hashem Miyrushalayim." Tosfos, s.v. Ki Mitzion says "because they would see great holiness and Kohanim busy in the Avodah, it would direct the heart more to the fear of heaven and to learn Torah, as the Sifrei expounds on the pasuk "l'maan tilmad l'yirah." Great is Maaser Sheni that it brings to [Torah] study, because they would stand in Yerushalayim until he ate his Maaser Sheni and he would see everyone busy in the work of heaven and avodah, he would also be directed toward yiras shamayim and to busy himself with Torah." Also, Rambam Mamrim 1:1 says בית דין הגדול שבירושלים--הם עיקר תורה שבעל פה,
והם עמוד ההוראה, ומהם חוק ומשפט יוצא לכל ישראל. The beis din hagadol in Yerushalayim - they are the main Torah Sheb'al peh, and the pillar of direction (as in teaching or psak), and from them, law and justice emanates to all of Yisrael.
In this context at the seder, shadayim nachonu, the bnei yisrael had the potential to start a great mesoratic tradition but "at eryom v'ervah," we were naked of mitzvos. We had nothing to transmit.
Now, on Pesach night, when we have to see ourselves as being freed from Egypt, a time when the Jews were were commanded several mitzvos, and specifically the seder night with the mitzvah of "vehigadta levincha" which includes teaching the halachos of the seder, not only the story of the exodus (see the answer to the Ben Chacham, and see Hagaddah Siach Hagrid), we have a responsibility and an obligation to teach Torah to our children (and other people).
(The night of the seder is indeed dedicated to the mesorah, as we have a requirement to recite the drashos on the psukim of bikkurim. My rebbe shlit"a mentioned Tshuvos Hagaonim against those who skipped the drashos, they were suspected of being karaim. I think the Rav in Siach Hagrid also discussed the importance of reciting the drashos.)
(Back to my bubbie - I said she transmitted to me Torah attitudes. She taught me how to give tzedaka. She taught me how to respect talmidei chachamim. She told me how to soak and salt meat, to kasher it, etc.)
I once gave a drasha in honor of my Bubbie, and part of it was this: Kiddushin 49b says that 10 measures of yofi came to the world and Jerusalem took 9 of them. What does this mean? The gemara a few lines lower says that the pasuk in Shir Hashirim 8 "achos ketana yesh lanu v'shadayim ain la" refers to Eilam that merited to learn Torah but not to teach torah. So the breasts represent the source of spiritual sustenance, (see also my Rebbie's zt"l hesped for his brother the Rav zt"l - about "birchos shadayim v'racham") and this is the yofi of Yerushalayim: Bava Basra 21a discusses the educational system and how Ben Gamla is to be commended for without him, Torah would have been forgotten in Israel. One of the takanos in teaching was that the children should be brought to Yerushalayim to learn as the pasuk says (Yeshaya 2) "ki mitzion teitzei Torah u'Dvar Hashem Miyrushalayim." Tosfos, s.v. Ki Mitzion says "because they would see great holiness and Kohanim busy in the Avodah, it would direct the heart more to the fear of heaven and to learn Torah, as the Sifrei expounds on the pasuk "l'maan tilmad l'yirah." Great is Maaser Sheni that it brings to [Torah] study, because they would stand in Yerushalayim until he ate his Maaser Sheni and he would see everyone busy in the work of heaven and avodah, he would also be directed toward yiras shamayim and to busy himself with Torah." Also, Rambam Mamrim 1:1 says בית דין הגדול שבירושלים--הם עיקר תורה שבעל פה,
והם עמוד ההוראה, ומהם חוק ומשפט יוצא לכל ישראל. The beis din hagadol in Yerushalayim - they are the main Torah Sheb'al peh, and the pillar of direction (as in teaching or psak), and from them, law and justice emanates to all of Yisrael.
In this context at the seder, shadayim nachonu, the bnei yisrael had the potential to start a great mesoratic tradition but "at eryom v'ervah," we were naked of mitzvos. We had nothing to transmit.
Now, on Pesach night, when we have to see ourselves as being freed from Egypt, a time when the Jews were were commanded several mitzvos, and specifically the seder night with the mitzvah of "vehigadta levincha" which includes teaching the halachos of the seder, not only the story of the exodus (see the answer to the Ben Chacham, and see Hagaddah Siach Hagrid), we have a responsibility and an obligation to teach Torah to our children (and other people).
(The night of the seder is indeed dedicated to the mesorah, as we have a requirement to recite the drashos on the psukim of bikkurim. My rebbe shlit"a mentioned Tshuvos Hagaonim against those who skipped the drashos, they were suspected of being karaim. I think the Rav in Siach Hagrid also discussed the importance of reciting the drashos.)
(Back to my bubbie - I said she transmitted to me Torah attitudes. She taught me how to give tzedaka. She taught me how to respect talmidei chachamim. She told me how to soak and salt meat, to kasher it, etc.)
Tuesday, March 31, 2009
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.
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.
Thursday, March 26, 2009
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.
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.
Monday, March 23, 2009
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.
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.
Monday, March 16, 2009
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.
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.
Wednesday, March 11, 2009
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.
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.
Tuesday, March 10, 2009
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....
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....
Wednesday, March 4, 2009
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.
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.
Sunday, February 22, 2009
Avos as Jews, Part 3
If a couple was married in Mitzrayim, but their relationship was considered - after Matan Torah - to be ervah, could they remain married? For example, Amram (father of Moshe, Aharon & Miriam) was married to his aunt, Yocheved bas Levi. After Matan Torah, their relationship was asur. Were they allowed to remain married (being grandfathered in) or did they divorce?
The Daas Zekanim Mibaalei Hatosfos, Bamidbar 11:27, discusses Eldad and Meidad: Eldad and Meidad were brothers of Moshe, for when the Torah was given and the arayos (plural of ervah, it means incestouous relationships) all separated [from their spouses] at it says 'vayishma Moshe es ha'am bocheh lemishpechosav' (and Moshe heard the nation crying to their families) - the drasha is "about their families" [(i.e., wives) becoming forbidden]. Also Amram the father of Moshe separated from Yocheved who had been his wife, and he married another women and bore from her Eldad and Meidad.
He holds they were not allowed to remain married. (He can hold that ervah depended on the kedushas haprat.)
The Meshech Chochma (Devarim 5:27) states: The Chasam Sofer (Avodah Zarah 63b) is unsure as to the source that a ger who converts is like newborn child. To me it is simple that undoubtedly among those men who left Mitzrayim many women (wives) who were from those [relationships] that are not forbidden to Bnei Noach. And Amram is a case in point, he was a gadol hador married to his aunt...these men who were married to their relatives would have had to separate from their wives [but this pasuk says "return to your tents", i.e., your wives, implying that they remained married to their wives] and thus we see that a ger who converts (meaning the Jews at Matan Torah) is like newborn child.
He holds that they were allowed to remain married because the geirus at Matan Torah made them be considered not related.
The Gur Aryeh, Breishis 46:10, says that "a ger who converts is like newborn child," did not apply to the Jews at Matan Torah since G-d lifted the mountain over them as a tub [and pressured them to accept the Torah], so they could not be considered like a newborn. But regular geirim are considered as newborns.
The Gur Aryeh uses this idea (the same idea as the Meshech Chochma) to explain how Yaakov Avinu married two sisters - after geirus, they were not halachikly sisters. The famous Ramban (Breishis 26:5) says Yaakov married two sisters because he only kept the Torah as "mi she'eino metzuve v'oseh" (not out of an obligation) when he was in Eretz Yisrael, and he married Rachel and Leah outside of Eretz Yisrael. (This Ramban needs some discussion. His question includes how did Amram marry to his aunt and how did Moshe build 12 matzevos. But in the midbar, after Matan Torah, they were obligated in the Torah, so having not yet entered Eretz Yisrael would not have allowed them to not fulfill a mitzvah. Perhaps Moshe's building the matzeivos was a hora'as shaah. Still, it is unclear if the Ramban would agree with the Daas Zekanim or the Meshech Chochma about Amram remaining married to Yocheved after Matan Torah.)
(I would like to acknowledge that I first heard this Gur Aryeh, the above Meshech Chochma and the Ritva Kesuvos 11 [in the first post about Avos as Jews] from R. Aryeh Shtern at KBY in Sivan 5764.)
The Daas Zekanim Mibaalei Hatosfos, Bamidbar 11:27, discusses Eldad and Meidad: Eldad and Meidad were brothers of Moshe, for when the Torah was given and the arayos (plural of ervah, it means incestouous relationships) all separated [from their spouses] at it says 'vayishma Moshe es ha'am bocheh lemishpechosav' (and Moshe heard the nation crying to their families) - the drasha is "about their families" [(i.e., wives) becoming forbidden]. Also Amram the father of Moshe separated from Yocheved who had been his wife, and he married another women and bore from her Eldad and Meidad.
He holds they were not allowed to remain married. (He can hold that ervah depended on the kedushas haprat.)
The Meshech Chochma (Devarim 5:27) states: The Chasam Sofer (Avodah Zarah 63b) is unsure as to the source that a ger who converts is like newborn child. To me it is simple that undoubtedly among those men who left Mitzrayim many women (wives) who were from those [relationships] that are not forbidden to Bnei Noach. And Amram is a case in point, he was a gadol hador married to his aunt...these men who were married to their relatives would have had to separate from their wives [but this pasuk says "return to your tents", i.e., your wives, implying that they remained married to their wives] and thus we see that a ger who converts (meaning the Jews at Matan Torah) is like newborn child.
He holds that they were allowed to remain married because the geirus at Matan Torah made them be considered not related.
The Gur Aryeh, Breishis 46:10, says that "a ger who converts is like newborn child," did not apply to the Jews at Matan Torah since G-d lifted the mountain over them as a tub [and pressured them to accept the Torah], so they could not be considered like a newborn. But regular geirim are considered as newborns.
The Gur Aryeh uses this idea (the same idea as the Meshech Chochma) to explain how Yaakov Avinu married two sisters - after geirus, they were not halachikly sisters. The famous Ramban (Breishis 26:5) says Yaakov married two sisters because he only kept the Torah as "mi she'eino metzuve v'oseh" (not out of an obligation) when he was in Eretz Yisrael, and he married Rachel and Leah outside of Eretz Yisrael. (This Ramban needs some discussion. His question includes how did Amram marry to his aunt and how did Moshe build 12 matzevos. But in the midbar, after Matan Torah, they were obligated in the Torah, so having not yet entered Eretz Yisrael would not have allowed them to not fulfill a mitzvah. Perhaps Moshe's building the matzeivos was a hora'as shaah. Still, it is unclear if the Ramban would agree with the Daas Zekanim or the Meshech Chochma about Amram remaining married to Yocheved after Matan Torah.)
(I would like to acknowledge that I first heard this Gur Aryeh, the above Meshech Chochma and the Ritva Kesuvos 11 [in the first post about Avos as Jews] from R. Aryeh Shtern at KBY in Sivan 5764.)
Saturday, February 21, 2009
More on Ohel Hames & Parshas Shkalim
There is an machlokes (Tanaim) if there is an issur dirabanan (see Ohalaos Ch. 3) to import vegetables from chutz la'aretz to Eretz Yisrael because we are concerned that there will be some dirt on the vegetables and the dirt of chutz laaretz is tamei because we're worried there are human remains mixed with the dirt. See Sanhedrin 12a and Nedarim 53b. Tosfos (Sanhedrin) says the problem is that one may touch the dirt and become tamei. Rashi (ibid.), however, says the problem is that one will become tamei when they will be under the same ohel as the vegetable and will become tamei from ohel. Rashi apparently holds like the strict opinion (Rabbeinu Tam) - that a non-Jewish corpse is metamei b'ohel. (While this is only tamei midirabanan, Rashi apparently held the chachamim made it tamei to the same extent as it would be had it been dioraissa - even in an ohel.) It also seems Rashi holds this way in Ramban Yevamos 61a. I just want to remind everyone that not all rishonim agree with Rabbeinu Tam (see Ramban Yevamos 61a s.v. ha, and Nimukei Yosef Bava Metzia 69b bedapei haRif s.v. ein), and the Shulchan Aruch paskens like Rabbeinu Tam lechumra - "it is correct for kohanim to not go..."
About the machlokes if one may import vegetables - I'd like to add one point. The problem of the vegetables is that they grow in the ground, and some dirt may be attached to them. This wouldn't apply to grain or fruit, which grows higher off the ground and would not have dirt sticking to it. It seems to me that there is a hint to this halacha in a pasuk in Eishes Chayil (Mishlei 31:14) haysa ka'anios socher, mimirchak tavi lachmah, she was like a merchant's ship, from far-away places she brings her bread. Shlomo Hamelech is alluding to this halacha that bread (wheat) may be imported from far away lands, but vegetables may not be imported.
Another point that only Yisrael is called Adam, and adam is plural as well as singular - perhaps this is a reason why it is forbidden to count Jews 1, 2, 3, ..., instead we count their shkalim (or we say "hoshia es amech" to count a minyan) - to reduce Jews to individuals we negate the unity aspect - the Adam - of Klal Yisrael.
About the machlokes if one may import vegetables - I'd like to add one point. The problem of the vegetables is that they grow in the ground, and some dirt may be attached to them. This wouldn't apply to grain or fruit, which grows higher off the ground and would not have dirt sticking to it. It seems to me that there is a hint to this halacha in a pasuk in Eishes Chayil (Mishlei 31:14) haysa ka'anios socher, mimirchak tavi lachmah, she was like a merchant's ship, from far-away places she brings her bread. Shlomo Hamelech is alluding to this halacha that bread (wheat) may be imported from far away lands, but vegetables may not be imported.
Another point that only Yisrael is called Adam, and adam is plural as well as singular - perhaps this is a reason why it is forbidden to count Jews 1, 2, 3, ..., instead we count their shkalim (or we say "hoshia es amech" to count a minyan) - to reduce Jews to individuals we negate the unity aspect - the Adam - of Klal Yisrael.
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