Hilchos 9 Av - Siman 549

O"C Siman 549

Tzom Harevi'i... Regarding the names of our months (Fourth month vs Tammuz) See Rambam Shemos 12:2 - part of the mitzvah of Hachodesh hazeh is to call the months by names which recall yetzias mitzrayim - first, second, third... month to y"m, the first month. (Note how months differ from Shabbos- days of week - rishon, sheni, shlishi... "to Shabbos," which is the seventh day, and months refer back to the first month, most likely because hachodesh hazeh lachem rosh chadashim - it is the "head" of months, but Shabbos, while it is the reference point for the week, doesn't have to be the first.)
(Re beginning of Ramban "ki she'ar mitzvos shebatorah hayu behar sinai." He seems to hold that Hachodesh was not repeated by Moshe to bnei Yisrael at Har Sinai. The Rambam argues on this - see Perush Hamishna, Chulin Perek 7, that Torah is only that which Moshe taught at Har Sinai, so all mitzvos that were given before Har Sinai were given again at Har Sinai.)
(Re end of Ramban - when Bnei Yisrael returned from Bavel they brought the Persian names of the months with them to fulfill the nevua of Yirmiya 16:15 (also see ibid., 23:8). The Rambam does not count the mitzvah to remember Yetzias Mitzrayim every day (by saying the third Perek of Kriyas Shma). Why not? See Hagaddah Siach Hagrid where the Rav brought three answers from Rav Chaim. R' Isser Zalman Meltzer in Even Ha'Ezel (maybe Kriyas Shma 1:3) answers that the mitzvah changes when Mashiach comes, because we will mention the miracles Hashem brought when Mashiach comes which will dwarf the miracles of yetzias mitzrayim. Because the mitzvah will not remain the same after Mashiach comes, it cannot be counted in sefer hamitzvos, because the Rambam only counts mitzvos that are for all time. Now the psukim in Perek 16 and 23 are almost the same, but it seems the Ramban uses [the] one [from Perek 16] to learn there was some commemoration of B"Y leaving galus Bavel, and Rav Isser Zalman uses it [or the one from Perek 23] that while it mentions return from the northern exile, which implies Bavel, really refers to Mashiach.)

Fast of the fourth month. The fast could have been any day within the months of the Pasuk (in Zecharia 8:19), but the dates of the fasts were set. If the fast could have been any day in the month, what if a boy became Bar-Mitzvah during the month, before the fast day (like on the 15th of Tammuz)? The chiyuv of the fast began when the boy was a katan? If that's too extreme to fathom, what about a boy whose bar-mitzvah is on 18 Tammuz in a year when the fast of Tammuz fell on Shabbos and was pushed off to Sunday, the 18th of Tammuz? If the chiyuv to fast is on the 17th, the boy wasn't chayav yet. We pasken that the 13-year old is obligated to fast, but this is something to think about.

Fast of the fourth month. See Rosh Hashana 18b, and Tur & B"Y Siman 550. If there is peace, they fast. Many Rishonim - Tur, Rabbeinu Chananel, many others say peace means the Beis Hamikdash is built. This means in the time of the second Beis Hamikdash, they did not fast, even though the first Beis Hamikdash was destroyed on 9 Av. Rambam (Perush Hamishna R"H 1:3) says in time of the Second Beis Hamikdash they did fast (because they decided to, but they had the right to decide not to fast). I feel we can make a diyuk in the Mishna like the Rambam: it lists 6 months the messengers went out - including Av. The end of the Mishna says in the time of the Mikdash, they'd send out a messenger in another month, Iyar. But the Mishna does not say no messenger was sent for Av. So the fast of 9 Av was observed during the second Beis Hamikdash.

Huchpelu bo tzaros. Tosfos (R"H 18b s.v. Ho'il) asks why is 17 Tammuz different than 9 Av, that on 9 Av we must fast even if there is Shalom but no Gzeiros, but we can choose if we want to fast on 17 Tammuz, but if many bad things happened also on 17 Tammuz we should have to fast? See the two answers of Tosfos. I think the Rambam understands Huchpelu bo tzaros to be discussing the time of the second Beis Hamikdash, 9 Av was already huchpelu - the gzeira in the midbar and the first destruction.

Names in Gittin - Yisachar & Av

This post is slightly off topic, but it is an important issue and is interesting.

The proper spelling of names is critical to the kashrus of a get. If someone has a name which is found in the Torah, the name must be spelled as it is found in the Torah. Sefer Get Mesudar Shaar 7, Siman 15, Se'if 11 discusses how to spell Yisachar.

(We pronounce the name spelled Yud-Shin-Shin-Kaf-Reish as Yisachar, even though it is spelled as Yisaschar. In Breishis 46:13 Yisachar has a son named Yov, and in Bamidbar 26:24 his name is changed to Yashuv. There is a midrash quoted by Daas Zekanim on Breishis 30:18, that when Yissachar found out there is an avodah zarah called Ov (which apparently is the same as Yov), Yisaschar gave his son one of the shin's from his own name, changing Yov to Yashuv and Yisaschar to Yisachar. Because of this midrash, in Volozhin they read Yisaschar until Parshas Pinchas, when Yov's name is given as Yashuv. See Nefesh Harav p. 308.)

Get Mesudar says if someone is called to the Torah and signs his name as Yisachar, we write Yisachar (only one Shin) in a get. However, many people sign there names with 2 shins. The Pesher Davar on that sefer says in that case, where he's called to the Torah with one shin but signs his name with two shins, we write in the get "Yisaschar dimiskirei Yisachar." I do not know how mesadrei Gitin write Yisachar in a get.

Similarly, two years ago the chazan in our shul when we benched Rosh Chodesh Av just said "Av." Our Chazan for the Yamim Noraim was very upset and told me "He should have said Menachem Av." I showed him the Aruch Hashulchan in Hilchos Gitin, Even Haezer 126:16: Av - we don't write Menachem Av because our custom to call it such in our correspondences and when we bless the month is only as a consolation that we should merit, iy"h bb"a but its name is only Av. So we find in the beginning of maseches Rosh Hashana. If he wrote [in the get] Menachem alone (and not Menachem Av) there is an opinion that is it is Kosher bidieved since it is well known that Av is called Menachem. I have my doubts about this because true, in books and approbations by Sefardic sages they are accustomed thus [to call it Menachem] we [Ashkenazim] do not have that custom. Some write to write both [Menachem Av] and I certainly agree if it was written this way it's Kosher bidieved since this how we bless the month in our countries and what we write in letters.

Below is a reproduction of a get, from Psak Hadin beinyan He'ach veha'achot by Chief Rabbi Shlomo Goren (Jerusalem, Tevet 5733). The left and right sides are cut off in the book.

79b - clinging Part 2: DNA in Halacha

Sefer Hachasidim Chapter 232 - "There was an incident with the sage R. Saadia ben Yosef the sage, with one who went to a faraway country with his servant with a lot of money, and his wife was pregnant, after a while he died and left all the money [to his son] and the servant seized his assets and claimed to be the late man's son. When the son grew up, he heard that his father died, he went to claim his property which the servant had seized (and the servant had married into an influential family) and the son was afraid to make his claim lest they kill himand he visited Rav Saadia's house and was given food to eat but he refused to eat until he laid out this situation. Rav Saadia gave him advice to tell the king and he did. The king sent Rav Saadia to judge this case. He commanded to take this man's blood into one container, and and the other man's blood into another container, and they took a bone [from the dead man] and stuck it into the container with the servant's blood, and the blood was not absorbed [in the bone] and they took the bone and stuck it into the container with the son's blood and the blood was absorbed in the bone because they were "one body" and Rav Saadia took the money and gave it to the son."

Rashash, Bava Basra 58a explains the incident of R. Bnah (see previous post) using this Sefer Hachasidim. R' Bnah didn't have them beat the grave, but do this "blood test." Rashash uses this explanation to answer Eliyahu Rabah, Orach Chaim 568:15. He also points out that with this discreet method, R. Bnah ensured people did not realize that the other sons in this case were mamzeirim.

Rav S.Y. Zevin in Le'or HaHalakha (Tel Aviv: Abraham Zioni, 1957, p. 195) says that this is the basis for genetic testing in Halakha.

The method used was obviously very crude, as it was at least 1000 years ago. Our DNA tests are very different. The main idea to take from this Sefer Hachasidim is that there is a method to establish paternity that is not based on testimony of witnesses. (DNA might also be used to determine the indentity of burn victims or other corpses where other methods of identification - including fingerprints and dental records, though there is also discussions whether those are halachikly acceptible means of identification - may not be available.) One could combine the Meiri and Rashash and say that only extremely wise sages can use this method, but I think that is unlikely.

The Sefer Hachasidim arranged by R. Shimon Gutman (Jerusalem: Otzar Haposkim, 2007) mentions that R. Shlomo Zalman Auerbach zt"l did not accept genetic testing to determine paternity/maternity from 2 sources: Mishnas Avraham E"H p.30 (Lev Avraham Volume 2 page 17) and the journal Assia 35 (Shevat 5743/January 1983) p. 52. I have heard from reliable sources that R. Yosef Sholom Elyashiv Shlit"a also does not accept genetic testing as acceptible proof.

See, however, Hilchos Aveilus, Madrich Mefurat (Third edition) by Yitzchak Ushinksky (Jerusalem: Otzar Haposkim, 2005) siman 12 and 13 about the use of DNA evidence, and he mentions rulings by R. S. Wozner and R. Z.N. Goldberg (see Tchumin 23) who discusses using DNA evidence for various determinations. (These 2 simanim were also published in Kulmus, Mishpacha Magazine Shevat 5764 and Tchumin 24, respectively.) I happened to notice last week that R. Chaim Regensberg in Mishmeres Chaim (Jerusalem: Chicago Rabbinical Council, 1966) says that when fingerprints and blood tests are unequivocal, they are accepted by Beis Din.

79b - Chazakah that these children "belong" to these parents (Part 1)

79b - When the children cling to the mother, that is halachikly valid evidence that they are the children of the mother. We know Shlomo Hamelech determined who was the mother of the baby in a case where the child was a baby, and too young to be clinging to its mother. Are there applications from Shlomo Hamelech's case we can use? Also, can we use DNA tests to determine paternity and maternity?

In Bava Batra, 58a the Talmud relates certain rules relating to the actions of a dayan. “A certain man was reputed (muchzak) to have many sons and was informed just before his death that only one of those sons were his and he left all his property to that son, and R. Bnah told all of the sons to beat the grave until the corpse was uncovered and they all went, but one did not go and R. Bnah declared he was the son.” The Meiri explains the Gemara in a surprising manner: “Similarly an experienced (muflag) judge must sometimes decide according to umdena (approximate estimation, from the word moded, to measure [based on Jastrow]) according to the path whereby Solomon sometimes judged, as is well known with the two women who came before him...these matters and similar situations are only given to a wise king or a sage of exceptional wisdom and pilpul and sharpness much greater than all the other sages of his generation in all types of knowledge.” That is, R' Bnah had no firm proof that this was the son, but he felt the real son could not psychologically beat and uncover his own father's grave, and this test was only an umdenah, not a firm proof, but he ruled according to the results of this test. (This idea of the Meiri is also cited in BY C”M 15 in the name of Rosh, Teshuvot 107:6 and is also mentioned by Rambam, Hil. Sanhedrin 24:1).

Meiri clearly states that when the two parties have competing claims that would not cancel each other or if a reliable claim was made without dispute, but the implications thereof are nearly impossible to determine, the dayan can use his cleverness and cunning to decide which party’s claims are valid, (or the implications of the undisputed reliable claim). This was the manner by which King Solomon determined which of the two women was the mother of the live child. This decision was also called ruach hakodesh by the Talmud (Makos 23b). So "a sage of exceptional wisdom and pilpul and sharpness much greater than all the other sages of his generation in all types of knowledge” was able to judge based on his great knowledge of all aspects of human life and behavior, but we may not. So Shlomo Hamelech's ruling is not applicable to us.

66b "Cut" Vav (Parshas Pinchas)

66b "Cut" Vav

The letter vav in the word Shalom at the beginning of Parshas Pinchas (25:12) is ketia (cut). What exactly does a cut vav look like?

Some say it is a short vav, and the bottom is cut off, but we must make it longer than a yud (Minchas Shai Bamidbar 25:12). Others say it is a full-length vav, but the leg of the vav is not continuous - the bottom of the vav is cut off from the rest of the vav (Ritva here). Some say it is a regular vav but written small (like the small aleph in Vayikra 1:1) (Meiri Kiryas Sefer 2:1 under "vehaktanos"). Some say it is written like a yud (Baal Haturim 25:12, Maharsha Kiddushin Chiddushei Aggados 66a s.v. Vav). These shitos are brought in Encyclopedia Talmudis "Vav" part 2.

Rambam and Shulchan Aruch do not mention this law, likely because if the vav was written regularly we would not change it.

See Shut R' Akiva Eiger 75 and Mossad Harav Kook Ritva Kiddushin 65b footnote 669.

This image shows a short vav and two ways of having a cut in the middle of the vav. From Encyclopedia Talmudis.

81a Tosfos s.v. Sakva - BeHaB

81a Tosfos s.v. Sakva. Tosfos says because of Avin or Abaye's statement here (depends on the girsa), we have a custom to fast on a Monday, Thursday and Monday (hence BeHaB - yom bet, yom heh and yom bet) after Pesach and Sukkos - for atonement for the mingling of the sexes during yom tov. This is also brought by Rosh (Taanis Perek 1 Siman 20) but for a slightly different reason: perhaps with all of the feating we sinned, as we find Iyov brought sacrifices after his feasts because maybe his children sinned (Iyov 1:5). Sefardim do not have a custom of Behab.

Rambam (Yom Tov 6:21) says that Beis Din must set up guards to keep a lookout in all places where men and women may congregate to make sure people don't gather there and come to do aveiros. Maggid Mishna says our Gemara is the source for the din of the Rambam. It could be that the Rambam learned this gemara as an a priori law - this is likely to happen, so prevent it. The Tosfos and Rosh may have understood it as a post-facto statement - because these things happen, they promoted making fasts as forgiveness.

It is interesting that the Tur mentions the fast of Behab in O"C 492, and the Rambam's law in O"C 529, with the laws of celebrating Yom Tov. That would indicate that the Tur felt that Behab and the Rambam's law are different. Aruch Hashulchan mentions our Gemara in both places, but adds in 529 that Beis Din only has the responsibility of appointing guards in the time of the Beis Hamikdash. (Mishna Brura ignores our Gemara and only mentions the reason of the Rosh.)

Why does the Aruch Hashulchan limit it to beis din bizman habayis? I have two possibilities. The first is that he understood the Rambam as dealing with a real beis din appointing guards, and we no longer have real batei din. For example, see Rosh Hashana 29b that Rabi Yochanan ben Zakai decreed that if Rosh Hashana fell on Shabbos, we only blow shofar where there is a beis din - it is a beis din of semuchim, etc. (see Rambam Shofar 2:8-9. [That Rambam is a proof to what Chiddushei Hagram says in Hilchos Kiddush Hachodesh about Beis Din Hagadol after they left the Lishkas Hagazis.] The Rif argues with Rambam's formulation; he had them blow shofar in his place because he paskened he had a beis din kvu'a. See Tur 588 from Rosh, Rosh Hashana 4:1.) So maybe Aruch Hashulchan understood the Rambam's use of the term Beis Din here in Hil. Yom Tov like they are used in Hil. Shofar. The second possibility is that the Aruch Hashulchan understood Tosfos and the Rambam as dealing with gatherings for the regel when people made aliya leregel to Yerushalayim. Careful readings of Tosfos and Rambam yield no allusion to aliya leregel, but maybe that's how Aruch Hashulchan understood the halacha.

For more details about Behab, when we keep them (not until the month after yom tov) and why that is so, see Encyclopedia Talmudis volume 2 under "Behab."

69a Daughter of a Jewish woman and a non-Jewish man or Eved to marry a Kohen

Yevamos 45a says vehilchisa goy v'eved haba al bas yisrael havlad kasher - that it is not a mamzer. But is this child completely kosher, or if it is a girl, is she unfit to marry a kohen?
There are three main opinions on this matter. Many rishonim pasken she may not marry a kohen. This gemara which says havlad kasher means she is not a mamzeres, but she is not completely kosher either, as Ravina says on daf 23a. For example, see Rosh, Yevamos 4:30.

Rif 15a holds the matter is a safek (doubt) if the daughter may marry a kohen.

Rambam (Issurei Biah 15:3) holds the daughter of such a union is completely kosher and she may marry a kohen. The Rambam just says kasher, but Beis Yosef EH 4 says since that's all the Rambam writes, he just means completely kosher. And everyone (except Mishna Lamelech) understands the Rambam this way.

Shulchan Aruch EH 4:19 says like the first opinion we mentioned: If [a non-Jew or eved] had relations with a Jewish woman, whether she was married [to a Jewish man] or unmarried, the child is kasher (see the context, that it means non a mamzer) but is pagum (unfit) for a kohen. This SA is a repeatition of how he paskened in 4:5. Beis Shmuel 2 says since the Rambam says she's mutar, and the Rif has a safek, if this daughter married a kohen we would not force them to divorce, and the children would be safek chalalim. This is based on the famous principle that the Mechaber usually paskens like the majority of the opinions of the Rosh, Rif and Rambam, and here each holds a separate way. However, Be'er Hagolah explains that according to the Shulchan Aruch, we would force them to divorce, and their children would be chalalim.

Double Parshios, Part 2

Many shitos in this piece (and nearly all the scenarios) are brought by Rav Tzvi Hirsch Grodzinsky in Sefer Mikraei Kodesh Chelek Aleph, here on Hebrewbooks.org. (He was a cousin of R' Chaim Ozer Grodzinsky. He came to America in 1891 and served as Rabbi of Omaha, Nebreaska for 56 years, until his death in 1948. This sefer is a very comprehensive work on Kriyas Hatorah and everything related to it. His other seforim - on hilchos Mikvaos and Gemara Brachos are thankfully available at Hebrewbooks.org. They are superb sefarim.) See Klal 13 & Klal 19 for the shitos he brings on this topic (note in 19 he forgot to list Terumah Tetzaveh as a double pasha). I will refer to this sefer by MK and give klal number and seif and note numbers.

There is another time we read two parshios - if there was no minyan one shabbos in a community, the next week they read the missed parsha and the current week's parsha (see MK 13 ff 19 for a very interesting but brief discussion whether from takanas Moshe would allow them to read without a minyan). The revi'i aliya must connect the two parshios. If some shuls had a minyan and one didn't, they would only read the current week's parsha. This is because the parsha was read in the community, and kriyas hatorah is only an obligation on the community, not on an individual. Rav Chaim Soloveichik held it was an obligation of the individual based on the Milchamos Hashem (Ramban) Megilla first perek (read it very closely. Some, including Rav Chaim's mechutan Rav Elya Pruzhener and his grandson Rav Yoshe Ber Soloveitchik did not see it in the Milchamos, but it is there. Look closely.) I believe his great grandson Rav Moshe explained the Rabbeinu Chananel at the beginning of Megilla the same way, but we don't pasken like that.

If they missed two weeks, would they make up both missed parshios or only one? Some say only one: Maharam Mintz 85 - only one because we never find reading 3 parshios on one shabbos, only 2. A different reason to only read the most recently missed parsha (Shaar Hatizyun [Mishna Brurah] 135:8 from Biur Hagra) is because it's like tashlumin of davening, where you can make up only the most recently missed tefila and no more. Note - if it's like tashlumin, then you get into an issue that tashliumin only works if you missed it not bemaizid. (I heard Rav Refael Yitzchak Reichman of Geula in 2000 quote a Tosefes Maaseh Rav 34 (in siddur Hagra, on the bottom of Maaseh Rav, where the Gra was in jail for four weeks and after he was released he had the tzibbur read all four parshios he missed. He explained that we know the Gra in Biur Hagra says something because it is the opinion of the Mechaber or Rama, but he himself disagrees with it. This is what R' Reichman suggested as a possibility in these 2 Gras.) Mishna Brurah 135:6 brings the Eliyahu Rabbah that you would read all the parshios you missed.

If the missed parsha was a double parsha, or it was only one parsha but the next week was a double parsha, the Maharam Mintz holds you only read this week's parsha, because we don't find reading 3 parshios on one shabbos. He doesn't say the first case explicitly, but there is a sevara even to him that you would read the second of last week's parsha with this week's parsha, that way you only read 2 parshios. I heard that Rav Yoshe Ber said the kriyas hatorah of a shabbos is the inyana diyoma of that shabbos. I'd suggest, with what Rav Yoshe Ber said or even without it, that when 2 parshios are read on one shabbos, it is one kriya that happens to contain 2 parshios. But you could combine it with the next week's parsha if you missed it. I'd suggest - if the double parsha was missed, like Acharei Mos and Kedoshim, followed by Emor, that we'd read 1st aliya: acharei mos, 2nd - continue and begin Kedoshim; 3rd - continue Kedoshim; 4th - Kedoshim and continue into Emor (this is key, because a double parsha has to be linked in the fourth aliya. I'm suggesting Acharei Mos and Kedoshim are considered one, and Emor is the second), and continue 3 more aliyos in Emor. And this would be even simpler is we missed a double parsha and the next shabbos was also a double parsha - like Tazria & Metzora followed by Acharei Mos & Kedoshim - connect metzora & Acharei Mos in revi'i.

If it is a minyan that only meets once a month (by design, like in very small communitites), they probably aren't considered a set minyan and would not have to make up missed parshios; they'd only read the current week's parsha.

If the missed week was a chazak (like Vayechi or Pikudei etc.) most poskim say you don't make it up because it doesn't make sense to combine 2 parshios in the Torah that have a four blank lines in between them (MK 13 se'if 3 & ff 6). A weak sevara could be offered for the Aruch Hashulchan that you can read them, from Parshas Behaaloscha: Vayehi Binsoa is separated from the rest of the parsha with upside down noons (I didn't like how it looked when I spelled it "nuns".) In fact, some say Vayehi Binsoa is a separate sefer, and what we call Bamidbar is 3 books: Bamidbar until Vayehi binsoa, then vayehi binsoa is its own book, and after vayehi bonsoa unti ldevarim is another sefer. Yet we read Behaalosch, which includes readings from all three of those sefarim, in one kriya. A very weak proof, but interesting.

Double Parshios, Part I (Shavuos 5769)

This Shabbos is the second day of Shavuos. In Israel, however, it is Shabbos parshas Naso. We will not “catch up” to them until we read Chukkas-Balak. Why do we wait until Chukas Balak and not lain Naso-Behaaloscha together (other than we at the lainers union would strike for a parsha over 325 psukim long)? And, what is a ben chutz-laaretz to do if he’s in Israel for shuvuos?

We read the entire Torah every year, between Breishis and Simchas Torah, with the reading we read every Shabbos morning. See Rambam Hil. Tefilla 13:1; the fact that we read on Shabbos morning is in Halacha 3 there. There used to be a minhag to finish the Torah in 3 years, but we are not allowed to do that anymore. (Why the cycle begins on and ends based on Simchas Torah – see R. Zevin, Moadim B'Halacha, Simchas Torah. Seems to be from gemara in Megilla 31 that the reading of that day is Zos Habracha, but it is different than the other readings mentioned there - those are deviations from the order, this one is part of the order of what we read every Shabbos.)

Megilla 31b: R. Shimon ben Elazar said, Ezra decreed for Yisrael to read the curses in Vayikra (i.e., Bechukosai) before Shavuos and the curses in Devarim (i.e., Ki Tavo) before Rosh Hashana. Rambam adds quite a bit in Hil. Tefilla (13:2):
עזרא תיקן להן לישראל, שיהיו קורין קללות שבספר ויקרא, קודם עצרת; ושבמשנה תורה, קודם ראש השנה. והמנהג הפשוט, שיהו קוראין "במדבר סיני" קודם עצרת; "ואתחנן" אחר תשעה באב; ו"אתם ניצבים" קודם ראש השנה; ו"צו את אהרון" קודם הפסח בשנה פשוטה. לפיכך יש שבתות שקורין בשחרית, שני סדרין כגון "אישה כי תזריע" ו"זאת תהיה" ו"בהר סיני" ו"אם בחוקותי" וכיוצא בהן--כדי שישלימו בשנה, ויקראו אותן הסדרים בעונתן.

His main addition is that the minhag is to read certain parshios before holidays. (The Rav gave reasons for these; the only one I heard (from R. Chaim Ilson) is that Tzav is before Pesach because Tzav discusses koshering keilim that had hetera bala, and chametz before Pesach is heteira bala. I looked and looked and found this buried in Harerei Kedem.)

The Meiri in Kiryat Sefer, Maamar 5 chelek 1 gives a very good summary of the order of laining. Basically, there are more parshios than non-Yom Tov Shabbos days in the year, so to finish the Torah in a year, we must read some parshios together. He lists which ones may be read together. It seems to be fully based on minhag.

But what is clear from the Meiri, and seems to follow from the Rambam, is that we read two parshios together right before a “deadline parsha,” that is, a parsha which must be read before a given holiday. Tzav is read before Pesach in a non-leap year. It must be Tzav alone, not with Vayikra. And it does not logically make sense to read Pekudei and Vayikra together for two reasons: one is there is no such minhag, and two, there is a huge space in a sefer Torah between sefaim, so it does not make sense to read one parsha from sefer Shemos and one from Sefer Vayikra together. So we read Vayakhel Pikudei together. Why not Ki Sisa with Tetzaveh? The Meiri says Ki Sisa and Vayifen (about the Eigel) were two separate parshios which were kind of merged as one, so that’s considered a double parsha, and we read Terumah Tetzaveh before Ki Tisa, which allows us to reach Tzav the week before Pesach. We see that we only read double parshios as late as possible before the holiday. We don’t read Breishis & Noach together, and Lech Lecha and Vayeira together and then read all single parshios until Pesach.

So for Shavuos, we read Bamidbar before Shavuos. The next Shabbos we have to reach a certain Parsha for a certain holiday is Vaeschanan after Tisha B’av (as Rambam says). Again with a calculation similar to the one made for the parshios before Pesach, and with a further requirement (I don’t know why, but this is the minhag) we read the 3 haftoras of Destruction before Tisha B’av on Devarim and the two preceeding shabbasos – either Pinchas and Matos-Masei, or Matos and Masei alone, depending on which day of the week the fast of 17 Tammuz falls. So the last Shabbos before Pinchas is…a need to read Chukkas and Balak together. And with the regular rules of reading double Parshios, we read them as late as possible, and not Naso-Behhaloscha together, and in Chutz Laaretz we do not care that we are a week behind Israel’s parshios.

78a - Tipa Ksheira

78a - Rabi Yehuda wants to make a gzeira shava that just as the daughter of a chalal, who was born from "tipa ksheira" (kosher seed) may not marry a kohen, the daughter of a ger, who was not born from tipa ksheira, is certainly not allowed to marry a kohen. (I've discussed this in 2 posts: here & here.)

Sanhedrin 36b says we need 2 psukim to include certain people as eligible to be judges: one to include mamzerim, and one to include geirim, the pasuk is needed because we'd think ger cannot be a judge because he is not from "tipa ksheira," a kosher drop, so the pasuk allows him to be a judge. Ritva, Kiddushin 14a s.v. veha d'amrinan brings this gemara with a different girsa - "tipa serucha," probably translated as putrid drop (see Avos 3:1, Akavia ben Mehallel says look at three things and you will not come to sin...from whence you came - mitipa serucha." There is definitely referring to tipa of a yisrael, but it's trying to tell us from a little, disgusting thing, and is not trying to tell us that the tipa is ad, like the Ritva means.) (Ritva is discussing what I discussed in this post.)

Rambam Isurei Biah 12:13 - to have a child with a shifcha (female slave) is very bad because "the son of a shifcha is a slave and is not Yisrael, and you cause the "zera kodesh" to be profaned and to be slaves..."

Ramban, Igeres Hakodesh Chapter 2 discusses how holy the connection between a husband and wife is - if it's leshaim shamayim. At the end of that chapter he writes "if a man does not intend lesheim shamayim, that zera that comes from him is tipa serucha, and Hashem Yisbarach has no portion in it (as opposed to when it is lesheim shamyaim, there are three partners in the child - the father, te mother and Hashem, as Ramban discussed earlier in that perek), and he is called one who "destroyed his way on the earth;" his body will be destroyed and he will plant an asheira (tree served as idolatry) and will fatten calves for idolatry due to the fact that he emitted zera mekulkal (debased seed)."

So we see how some rishonim use the term tipa ksheira or zera kodesh or tipa mekulakl, etc.

Pilegesh, Part 5

Common Law Marriage Requiring a Get

Lemaissa, what is the status a common-law marriage, one where a couple is living together in an exclusive relationship, or are even civilly married, but are not formally married with chuppa v'kiddushin -- are they considered married? R' Yosef Eliyahu Henkin (Peirushei Ivra 4 &5) says that such a couple are halachikly married and if their relationship ends, the man would need to give a get to the woman. R' Moshe Feinstein agrees that the woman should not remarry without a get. See Igros Moshe E"H I 74 where he quotes R' Henkin's opinion but rejects it, and see Igros Moshe E"H III 23 (and R' Moshe discusses it other places as well; he says R' Henkin would agree no get is needed if there was a Reform wedding, see E"H III 23). I'm mentioning this not regarding the permissibility of such a situation, rather if a dissolution would require a get. (This machlokes is very important in certain mamzeirus shailos, where a mother was previously married in a common-law marriage.) Because of the severity of the prohibition of eishes ish, the couple in such a situation should have a get even according to R' Moshe. However, absent a get, we will not consider the children of a woman who remarried after a common-law marriage to be mamzerim, in accordance with R' Moshe's psak. Note: see R' Moshe's teshuvos for the exact situations. Some of his statements may not be applicable to certain cases and certainly should not be understood that his teshuvos, or my bringing them here, as blanket statements.

Summary

To the Rambam there is no pilegesh to a non-melech. The Ramban permits it theoretically, but practically even the Ramban holds you couldn't have a pilegesh because she is not allowed to go to the mikva for her tumas nida since she is not married (as brought in the Rivash 425). Many bring Teshuvos HaRan 68 as allowing pilegesh. However, that case is a) already bidieved; we're not pasuling her more, we're only saying she was pilegesh and not an adulteress, and b) the main thrust of that question was does she need to wait 93 days to remarry or not. The question wasn't asking if she's allowed to be his pilegesh in the first place.

Pilegesh, Part 4

Pre-marital relations

In the text of the birkas eirusin (see Kesubos 7) we say "v'asar lanu es ha'arusos," that conjugal relations are forbidden between a man and his betrothed (i.e., the ring was given but they didn't have chupah & sheva brachos yet. That stage is called both kiddushin and nesuin; I'll use those terms interchangably). Nearly all rishonim explain this to mean it's prohibited midirabnan. (See Rambam that even one who was mekadesh with biah is asur lavo aleha again before chuppa.) However, the Shita Mikubetzes (Kesubos 7b s.v. vz"l haRashba) brings the Raavad (personally, I'm not sure if this is the same Raavad as the Hasagos Haraavad, based on his comment at the beginning of hilchos Ishus) that when we say "v'asar lanu es ha'arusos," it means she is forbidden midioraissa. How can this be explained? My Rebbi Rav Ahron zt"l explained that first of all, the Raavad held like Rabbeinu Nissim Gaon in Tosfos Kiddushin 10a s.v. Kol that "ki yikach ish isha" is referring to nisuin, not eirusin. And second of all, the Raavad agrees with the Rambam (SHM Lo Sasaseh 355) that it is asur midioraissa to have conjugal relations with a woman without chuppa v'kiddushin, and basically the Raavad holds it's an issur aseh (the positive commandment not to have relations makes it prohibited, but lav haba miclal asei, asei - see Rambam SHM Shoresh 6). Thus conjugal relations before chuppa has taken place, even between a betrothed couple, is assur midioraissa according to the Raavad. Ramban, in a teshuva (284) says "v'asar lanu es haarusos" tells us it's only prohibited for a marriage without bracha. But without a marriage, you don't need a bracha. (Does this lead logically to R' Henkin's position [stay tuned for that]?)

Once we're on the topic of birchas erusin, why is the text of the bracha "mekadesh es amo yisrael al yidei chuppa v'kiddushin," if kiddushin (eirusin) takes place before the chuppa? (Note: the Mishna Lamelech says that the Rambam holds chuppa may take place before kiddushin. This is a daas yachid [less than a minority opinion].) Rav Moshe Soloveichik zt"l (son of R' Chaim) answered that this Bracha was instituted with the historical facts of marriage in mind (Hil. Ishis 1:1 & 4): before matan torah, there was only chuppa. No other type of marriage existed. After matan Torah, the kiddushin, our halachik framework of marriage was created, hence the bracha lists chuppa before kiddushin, because the institution of chuppa existed before the institution of kiddushin.

Pilegesh, Part 3

לז"נ זקני שמואל בן משה ז"ל נפטר כ' אייר תשמ"ט

Shitas Rabbeinu Yonah

Rabbeinu Yonah Shaarei Teshuva Shaar 3:94-95: The Pasuk (Devarim 19:29) states Do not profane your daughter l'haznosah, and the do not corrupt the land and the land will be full of harlotry. Our sages taught (Sanhedrin 66a) this verse comes to warn us not to give your pnuyah (unbetrothed, unmarried) daughter for a conjugal relationship which is not for marriage. "And the land shall not be corrupted" if you do this, the land will be full of harlotry and will make its produce in another place and not in your land. Similarly it says (Yirmiya 3:3) the rain has been withheld and there was no precipitaion, you have had the forehead of a harlot. And pilagshim (concubines) without kesubah and kiddushin were not allowed to anyone except a king, whom everyone fears, and no one will commit adultery with her. Therefore, the relationship (yichud) of a king and pilegesh is like marriage. After pilagshim were allowed to a king, our sages decreed on a bride without the birchos nisuin (sheva brachos) is prohibited to her husband like a menstruating woman (see Kalah 1:1. Shita Mekubetzes, Kesubos 7b mentions this law from Maseches Kalah, but not in the historical context that Rabbeinu Yonah says.) [95] And behold you have seen the great punishment of one who has a specific pnuyah for illicit relations, because it is written about this (Vayikra 19:29) and do not corrupt the land and the land will be full of harlotry. One who comes on a pnuyah once by a chance occurance (i.e., a "one-night stand," not a relationship) gets makas mardus (rabbinic lashes) (see this post), besides for the great stumbling block and the bad things that happen to those who live with a pnuyah, because she is too embarrassed to immerse due to her mensural impurity in a mikva lest her illicit acts become public, therefore she remains in her menstural impurity [which is a chiyuv kareis]....

Rav Ahron zt"l said the Rabbeinu Yonah holds one receives malkos dioraissa for a common law marriage. I guess he infers this from the beginning of 3:94, that the pasuk (Devarim 19:29) is prohibiting a relationship that is not kiddushin - also known as common-law marriage, so as pshat in the passuk, its punishment is malkus. The Rambam holds there is no malkos midioraissa for this.

The Ramban (Tshuva 284) holds that it is mutar to have a pilegesh but writes, "And, our master (Rabeinu Yonah, to whom this tshuva was sent), in your place warn people against having a pilegesh, for if they knew it was allowed they will be adulterous and break through [the boundaries] and cohabit with them in their state of niddah." So it's muttar but you should not do it. But, is it mutar for an unmarried woman to go to the mikvah? Not really. Shu"t Rivash 425 quotes the Ramban as explaining the Gemara in Shabbos 13b that when a woman will not be allowed to live with her husband, she may not immerse in the mikvah. Any woman who will not be allowed to her husband is prohibited from immersing in the mikvah, and this prohibition extends to unmarried women as well.

Pilegesh, part 2

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.

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).