69a Akum Sheba al bas Yisrael, Part 3 - Rashi's shita continued

I would be remiss if I did not mention the probably most famous explanation in this Rashi, offered by R' Naftoli Trop. He says there are two parts to Yisrael - shem yisrael and kedushas yisrael. Rashi holds this child has shem yisrael from birth, but lacks kedushas yisrael until geirus.

Rabi Akiva Eiger seems to pasken like Rashi, whom he references several times in Kiddushin and Yevamos; for example, see Gilyon Hashas Kiddushin 68b, and in his comments to Yoreh De'ah 266:12, that toRashi's opinion, we would not to bris milah of a goy sheba al bas yisrael on Shabbos, instead we'd push it off to Sunday. This implies he held to Rashi the kid is a full goy, not like Rav Ahron explained. What I don't understand is that in a Teshuva (#91) he says the opinion that the vlad is pagum (i.e., like Shulchan Aruch paskens), it may only be a problem dirabanan, but midioraissa she may marry a kohen. He makes no mention of his strict shita. After looking in Chiddushei R' Akiva Eiger to Yevamos 45 we see he held like Yam Shel Shlomo that goy haba al bas yisrael is only pagum midirabanan. So Rabi Akiva Eiger himself does not pasken like Rashi! He just feels that when Rashi says havlad kasher after geirus, means before geirus the child is a complete non-Jew.

Pischei Teshuva EH 4:1 has a decently sized discussion on this matter using completely different sources (except the Shaar Hamelech), and says this opinion is not accepted l'Halacha. Also see Otzar Haposkim 4:10.

Or Sameiach (IB 15:3) views the matter from a slightly different perspective. He says there are shitos which differentiate between thegoy or eved being boel a pnuyah, or an eishes ish Shulchan Aruch paskens they are the same). If the din applies to a pnuyah only, that the child is kosher, we see the mother's status is involved: this unmarried mother does not produce a mamzer (an unmarried woman could produce a mamzer through a case of incest, but that's not our case). But for a married woman the child would be a mamzer because the woman's status of married means this relationship was adulterous and the child is thus a mamzer. However, to the opinion (like which we pasken) that it doesn't matter if the mother is unmarried or married,the child is not a mamzer, we see the paternity is important. Non-Jews have no mamzeirus. Since this child is not a mamzer, the father's non-Jewish status must be passed down to the child in some way.

69a Akum Sheba al bas Yisrael, Part 2 - Rashi's shita

See Tosfos 75b s.v. v'Rabi Yishmael. (I already mentioned this shita in my very first post.) Rashi 68b s.v. leima - havlad mamzer and we don't say he's a goy. Implication is, if we say havlad kasher (which is what we do say) the vlad is a goy and if he converts he's kosher. Some (Maharsha 75b s.v. v'Rabi Yishmael) ask that Rashi contradicts
himself because on 76a s.v. u'parchinan he says goy v'eved haba al bas yisrael havlad kasher, ela shifcha vladah eved, which implies the child with a Jewish mother is Jewish, and does not need geirus. Rashi also seems to contradict himself on 70 s.v. kol that Herod probably did not marry Jewish wives. That implies had he married Jewish wives, his children (he was an eved) would be full Jews. But Rashi holds goy v'eved haba al bas yisrael havlad kosher but needs geirus! But the answer is a non-Jewish father is worse than an eved father. See Shaar Hamelech, Issurei Biah 15:3, and Rav Moshe Soloveichik zt"l in Chiddushei Hagram Halevi Issurei Biah 15:3. A non-Jewish father
passes on his psul of non-Jew to the child. But an eved has no yichus (pedigree) so he has no psul to pass on. So When Rashi says goy v'eved haba al bas yisrael havald kasher but needs geirus, he only means goy haba. But eved sheba is completely Jewish and needs no geirus. This shita is also brought in Piskei Tosfos, Asara Yuchsin, 142.

Rav Ahron Soloveichik zt"l explained that Rashi doesn't mean - in the case of goy haba - the child is a goy. The child is Jewish, but he has a psul kahal (he's not allowed to enter the community), but that psul is removed with tevila. It is similar to a ger who had kabalas mitzvos, milah and tevila but didn't bring his korban (in the time of the mikdash) that he is Jewish but may not marry a Jewish woman until he brings his korban, according to Shita Mekubetzes, Kerisus 9a. (See Perach Mateh Aharon, Milah 1:7. The application to this Rashi is not in that piece, but he said it in shiur on Bava Basra.)

An almost identical explanation like Rav Ahron was offered by Rav Itzele Ponovicher in Zecher Yitzchak, siman 4. His thesis is that all aspects of gerus - milah, tevila and korban - are to purify the ger from his previous state of non-Jewishness. He then says with this we can explain [Rashi's shita] that the child is Jewish but needs tevila because he has the psul of goy, that the psul is the psul of both of the parents, but the yichus is after the mother... He is a full Yisrael but needs tevila to marry a bas yisrael....

Click here for Part 1

Updated Guide to Chodosh

This is the third edition of the Chodosh guide. It is usually the last update of the season.

chodoshguide2009pt3

Mamzer & Mishpachas Av

The Mishna, Kiddushin 66b, states: "Whenever kiddushin would not take effect between she and he, but she would have kiddushin with another man, the offspring is a mamzer. What case is this? This is one who came upon one of the arayos in the Torah." That the offspring is a mamzer requires further elaboration: does the fatehr's lineage still exist (and if the father was a kohen, the offspring will be a kohen mamzer) or does the mamzerus uproot the mishpachas av?

Koveitz He'aros 44:2 says: "In Shu"t HaRashba...without the Rashba we could have said another thing regarding that which a mamzer does not have kehuna - the psul removes him from from the kedushas kahal, it certainly removes him from the status of kohen....and we see this in Gittin 59 and Tosefta Yevamos 8:1 a female Levi who was held captive.... It is simple from this that mamzeirus removes the mishpachas av.

This is also implied in Mishna Brurah 135:30: "Even if they know their father is a Levi, we must suspect that their father married a mamzeres or nesina and disqualified his children from the kedushas Leviyah, and as a mamzer he reads from the Torah (i.e., gets an aliya) like any other Yisrael.

Chidushei Hagram Halevi (p. 54) s.v. Yevamos 87 says: the din that the offspring follows the psul of either of them is only a status of psul. The offspring of a regular Yisrael and an Egyptian convert is in the khal Yosrael and not in khal geirim, because his family is his father's mishpachas av. Only, he also has a status of psul of Mitzri...

This is also the shita of Rav Chaim, Isurei Biah 15:9.

See Tosfos Kiddushin 68b s.v. vladah kimosah: He explains the question of the gemara that how do we know the vlad of a non-Jewish woman follows her - "what is the source that the offspring is like her, that it will not be called his offspring for anything, not even his son but [a son who is] a mamzer...." According to Koveitz He'aros, if mamzeirus removes mishpachas av, what is Tosfos saying? We see Tosfos holds like Rav Moshe and Rav Chaim that the offspring is a mamzer and has mishpachas av. But the son of a non-Jewish woman will not be considered the Jewish father's son at all.

--Heard from Rav Chaim Ilson

Duration of Makos & Kiddushin 30a

Shemos 7:25 And seven days were complete, after G-d smote the river. Rashi explains that each makah lasted seven days, and Moshe warned Paroh for the rest of the month (three weeks). Ibn Ezra and Rashbam argue and say the makah of blood lasted a week because the verse tells us so, but there is no reason the think that all the other plagues lasted seven days.

(Everyone seems to agree Makas Bechoros happened at once, and did not last seven days. Regarding darkness - three days of darkness and then three days of thick darkness that inhibited movement - that's less than seven days! Sifsei Chachamim discusses it. Regarding Dever - from Rashi to 14:7, the righteous Egyptians' animals did not die. Rashi to 9:10 explains that the animals that were kept indoors did not die. It can therefore be that the plague lasted seven days even according to Rashi, for if animals were indoors at the beginning of the plague, if they came outdoors during the seven days, they would die. (about dever was mipi Mori Shlit"a answering my question.))

What is the significance of seven days that Rashi holds all of the plagues lasted that long? Rambam in Moreh Nevuchim 3:43 discusses why do Pesach and Sukkos last seven days? He says because seven days is long enough to realize that something was different. Not eating bread for a couple of days isn't so out of the ordinary. But when you don't eat bread for seven days you realize it happened, and you also realize why - because of the mitzva. We can likewise explain the duration of the makos similarly. Had they only been a day or two, it was likely that some people didn't realize anything happened. But because they all lasted a week, everyone in the entire Egypt realized that all of these miracles took place.

With this we can understand another Rashi. The Gemara (Kiddushin 30a) says we must split our learning into thirds - a third of the time we must learn Tanach, a third must be Mishna and a third must be Talmud. Rashi (s.v. leyomi) explains that it means every week we split up our learning, so that two days are Tanach, two are Mishna and two are Talmud. Tosfos (s.v. Lo) finds this difficult and explains that every day we must learn all three, so that our daily learning is split up three ways. Rambam (Hil. Talmud Torah 1:11-12) agrees with Tosfos. Tosfos has a good point with his question against Rashi. Why, then, does Rashi not say we must split our daily learning into thirds? He holds that as long as you did something within seven days, it is considered to be current. We know one might get involved and engrossed in a certain topic for a couple of days. Doing so does not indicate that he is ignoring the other two parts of Torah. But engrossing in one of the three parts for a week does indicate that you are ignoring the other two parts. Therefore Rashi says the learning only must be split up weekly, but not daily.

There is another answer we can give for Rashi. The Gemara asked how do you split up your learning into thirds, for how do you know when you will die? Rashi says you split your weeks in to thirds - two days, two days, two days, but Tosfos still asks, maybe you will die before the week is complete? The Shu"t Kesav Sofer O"C 103 brings a Chacham Tzvi 106 who shows from Tosfos Gittin 28a, Rosh Nedarim 3b and Gemara Sukkah 23b that there is a machlokes Rashi and Tosfos if we are worried that one may die within a week. Tosfos has such a concern, but Rashi does not. Thus, here, in regard to splitting your learning into thirds, Tosfos is worried you may die within a week and not have learned all three parts of Mikra, Mishna and Gemara, but Rashi is not worried about dying within one week.

(With this Ksav Sofer we can explain the machlokes Rabi Yehuda/Chachamim at the beginning of Yuma if they need to appoint a back-up wife for the Kohen gadol lest she dies before Yom Kippur, and the Kohen Gadol must be married: R"Y holds like Tosfos and we're worried she will die within a week, so we appoint a back-up wife, but Chachamim hold like Rashi and we're not worried the kohen gadol's wife will die.)

Tosfos gives some other ways how we fulfill our need to learn all three parts of the Torah daily. One is Rabbeinu Tam, who explained that Talmud Bavli is like balul, a mixture, of all three, so by learning Talmud Bavli you fulfill learning all three. Rav Amram Gaon says that is why we say psukim, mishnayos and the braissa of Rabi Yishmael every morning before davening - to have learned a little of all three parts every day.

Zonah

Yevamos 61b discusses the many shitos regarding who is a zonah.
Rabi Yehuda: an aylonis (a woman who will never have simanim of naarus; she never reaches sexual maturity) is a zonah.
Rabi Eliezer: zonah is literally a zonah (i.e., an unfaithful wife).
Rabi Akiva: mufkeres (available to anyone).
R' Masya ben Charash - he was going to have her drink the mei sotah and he had relations with her (it is prohibited once he decided she will drink before she actually does).
Chachamim: giyores or freed slave or one who had a forbidden be'ilah.
R' Elazar: two unmarried people having relations. (Tosfos s.v. adds even a married man with an unmarried woman.) (See Shita Kesuvos 13a s .v. ela harei zu, from the Likutei Hagaonim that this is only R' Elazar's opinion and it is rejected. The Shita much later on brings a Ritva who says that some amoraim in Sanhedrin follow this opinion.)

I'd like to give some sevaros for these opinions.

Rabi Yehuda might hold when there will be no fulfillment of perya verivya due to the physical inability of the woman to have children, she is a zonah.

Rabi Eliezer understands the word zonah literally, not as a din.

What is the difference between Rabi Akiva and Rabi Elazar? Tosfos Yeshanim say the nafka mina is the first biah: to Rabi Elazar she will become a zonah from the first biah, and to Rabi Akiva she won't become a zonah until the second biah.

R' Masya ben Charash might hold when there is any prohibition, even though it is not arayos (and does not carry the death penalty), it makes her a zonah. See Rashi Bamidbar 5:31 in the davar acher.

Chachamim hold it's someone who had an arayos relationship or anyone not born Jewish. If she is allowed to marry a psul (like a giyores marrying a mamzer) that same woman cannot marry a kohen, because she is a zonah. Or if she had a relationship where the child born would have been a mamzer, that makes her a zonah. (Rabi Shimon ben Gamliel on 60b holds if she converted before age three she may marry a kohen. This would be because she can be examined and if her hymen is intact she is not a zonah, and the hymen will grow back if penetrated before age three.)

Rabi Elazar can hold one of several things. He can hold like the Rambam in Sefer Hamitzvos (L"S 355) that the mitzva of perya verivya is to get married with chuppa and kiddushin. If you violate that, you become a zonah. Or he can hold slightly different, like the Raavad in Shita Mekubetzes Kesuvos 7 (discussed here) and say that one who violates an isur aseh becomes a zonah.

We pasken like Chachamim (and not like Rabi Shimon ben Gamliel about a girl who converted before the age of three. A question I have is what if a pregnant woman converted and then gave birth to a girl, can she marry a kohen? The baby would not require geirus because we say "ubar yerech imo (the fetus is an appendage to the mother)." I'm not positive, but I don't think she can marry a kohen. I think Ramban considers that a geirus on the fetus. So she would be a considered a giores.

Maalin mishtaros leyuchsin

Please keep davening for Moshe David ben Devorah.

Kesuvos 24 says (abridged): If one wrote 'I, ploni the Kohen, lent money to ...' and witnesses signed on it, can we consider the man a kohen? Do we consider the witnesses to be testifying only about the loan involved, or on everything in the document, including the fact the ploni is a kohen? It's a machlokes Rav Huna and Rav Chisda. One said we can consider him a kohen based on this and one said we may not.

Tosfos s.v. Chad seems to pasken that this is good enough, and in Kiddushin 76b s.v. ein is more explicit. But Rambam (Issurei Biah 20:9) says this is not good enough. Shulchan Aruch 3:2 paskens like Rambam. Rashba also argues on Rambam (like Tosfos), see Beis Shmuel 3:8. A question on the Rambam - why in Halacha 4 does he say maalin mitruma leyuchsin, but in Halacha 9 he departs from the words the Gemara uses and he says maalin mishtaros likehuna, and not leyuchsin? I'm not sure.

Ketzos Hachoshen asks (28:6) why doesn't the Gemara ask "isn't this mipi ksavam? Meaning, testimony is oral. If we consider someone a Kohen because of a signed document, that is written testimony and not oral testimony and should not be accepted? He answers that because all families are bechezkas kashrus, and because one witness is enough in Issurim if not for the fact that the chachamim made yuchsin special and they required two witnesses, so this requirement (to consider them meyuchasim) is only midirabanan, and in this case they accepted written testimony, but he concludes that this question still needs a good answer.

I'm wondering if the yichus is determined from the document itself, or do we use the document to determine what the chazakah of that person was then. If the latter, we are only using the document to see what the chazaka was, not to decide based on this document.

Also, the mishna in Kiddushin 76a says one who was signed as a witness in the registers of Yeshana near Tzipori is considered meyuchas. Rashi seems to say two explanations, but they it is unclear if they are different. He says because they used to record who was meyuchas and only use them to judge. But what does witnesses have to do with judges? Apparently Rashi is very medayek in "kol hakasher leha'id kasher ladun" (see Nida 49b). So they kept a list of kosher eidim not for their use as eidim, but for their use as dayanim. (Because there is no halacha you need a meyuchas to testify). However, Tosfos Yom Tov bring Rashi - and Rashi also says this on the mishna - there was a sanhedrin that investigated people to determine if they were meyuchas. So it wasn't a register of dayanim, it was a register of investigated people. Tosfos Y"T also says didn't have the word "eid" in his mishna. Others discuss if the word Archei is spelled with an ayin, which means register or aleph, which means the elders. Rambam in Peirush Hamishna says if someone was an eid in this register, then they were meyuchas. He mentions nothing about a register due to a beis din investigating their yuchsin.

So it's possible that the register is not what makes us decide he's meyuchas, the register is a record of what was previously decided by a beis din investigating someone's status.

Adoption, Part 2

For a refua shleima for Moshe David ben Devorah.

Yichud - some poskim prohibit adoption because it will lead to yichud problems with the parent of the opposite gender. I understand Rav Moshe Feinstein in Igros Moshe E"H IV 64:2 as holding there isn't a problem to adopt a girl because there is a super din of "ishto imo" so there is no concern of yichud. His heter apparently would not apply to a couple adopting a boy, because of the yichud problem between the adoptive mother and the boy. I previously mentioned that my rebbi zt"l paskened there is no problem of yichud because Meiri Kiddushin (81b s.v. Kevar) says: "...However, whomever does this without the intent of yichud and for unclean thoughts, rather, the way of the love of the ones who raise a child (derech hamolidim) to publicise and make known that their children are very dear to them, it is permitted. And on this it is said: hakol lesheim shamayim." He expanded on this and said from Tosfos, Sanhedrin 37a s.v., Hatorah, that sometimes a the thorn around roses - sugah bashoshanim - is a stronger barrier than an iron fence. The sugah bashoshanim of the child-parent relationship in case of adoption will form a psychological barrier against issur, and there will not be an issur yichud.

Writing name on Kesuva - How do we write the name of an adopted person in a shtar (contract)? Rama in Shulchan Aruch C"M 42:15 allows one to wrote "ploni ben ploni" even when it is only an adoptive relationship. For an aliya, most use the adoptive father's name, and some say ploni hamegadlo (who raised him). In a kesuva, the old custom was to write the biological parents (when they were also Jewish). I have heard that R' Moshe Feinstein said they can write the adoptive father's name without hamegadlo. (See also E"H I:99; E"H IV:26). Rav Yitzchak Yaakov Weiss in Minchas Yitzchak is very much opposed to using the adoptive father's name in a kesuva and even for calling the boy up for an aliya, because he is worried that people will make incorrect assumptions by hearing him called up as ben ploni. See Minchas Yitzchak I:136, IV:49, V:44, and VI:151. (He also prohibits yichud in an adoption).

(You could make several distinctions: an adopted non-Jewish child who underwent geirus katan: should he be called ben Avraham Avinu like a Ger ,which s/he technically is, or ben ploni hamegadlo? Because what about a non-Jewish man married to a Jewish woman and later the father converts - especially in a case where the community does not know the father wasn't Jewish, could be call him up ben ploni hamegadlo? What about where the father was Jewish, the mother wasn't, and then the mother & child convert? Can we use hamegadlo or must we use ben Avraham Avinu? (I think Nachalas Tzvi would allow us to use hamegadlo in this last case.) Also, an Igros Moshe EH I:99 has a case where nobody remembered the boy's father's name. Probably that case was where his father died when she was very young and her mother remarried, and this man raised this girl. Rav Moshe paskened to write bas mi shenishkach shmo venikra ben ploni shegidlo. I mention these possibilities because there are several distinctions we can make, plus there may be social considerations where to use the word hamegadlo or shegidlo will cause scrutiny.)

A frum family had to give up a child for adoption, and the child was adopted by another frum family who allowed the child to have contact with his biological parents. When the child got married, the biological parents insisted on walking the child to the chuppa, while the adoptive parents who raised the child wanted to. They had a Din Torah by my rebbi Rav Ahron Soloveichik zt"l. He paskened, based on the Shemos Rabba 4:2, which states: When Hashem told Moshe 'go now, I send you to Paroh,' Moshe responded I cannot, because Yisro accepted me and opened his home to me and I am like his son, and one who opens his home to his fellow, his soil is obligated to him...and more than that, whoever opens his home to his fellow, he is required in honoring him more than his father and mother... So Moshe told Hashem Yisro accepted me and honored me, I cannot go unless he gives his permission. From this Midrash, my Rebbi paskened that the adoptive parents who raised the child should walk the child to the chuppa. Rav Aharon Kotler agreed with this psak.

Adoption, Part 1

Megilla 13a states: Whoever raises an orphan (boy or girl) in his home, the pasuk considers it as if he gave birth to them. A very similar statement is also found in Sanhedrin 19b. A slightly different formulation is found in Kesuvos 50a, which states: "Praiseworthy are the guardians of justice who perform righteousness (tzedaka) at all times (Tehillim 106)...Said R. Shmuel bar Nachmani, this refers to one who raises an orphan (boy or girl) in his home and marries them off."

Several Biblical personalities were adopted or were praised for adopting a child. These include:

• Osnas bas Poti Fera, who was married to Yosef, was adopted by Potifar/Poti Fera and his wife, and she was the daughter of Dina from Sh'chem (Tosfos al Hatorah to Breishis 41:45). Because Poti Fera adopted her she was called bas Poti Fera.
• Bilha was represented in Yosef's dream as his mother because she raised him after Rachel died (see Rashi, Breishis 37:10).
• Serach bas Asher was Asher's wife's daughter, but he fully adopted her. See Ramban & Yonasan ben Uziel, Bamidbar 26:46. (Daas Zekanim there has a lot of difficulty with that explanation. And see Haksav Vehakabala, Breishis 46:17. Tosfos, Pesachim 54a s.v. Eileh argues on the Ramban and says that one may not call his wife's son his son.)
• I heard that Yair ben Menashe was adopted by someone from Menashe, but he really was from shevet Yehudah (based on ibn Ezra, Bamidbar 32:41), but this is not conclusive.
• Moshe Rabbeinu was raised by Basya bas Paroh after she found him floating in the river.
• Esther was adopted by her uncle Mordechai after her parents died (Megilla 13a).
  

Sanhedrin 19b lists more examples.

Does one fulfill perya verivya (procreation) by adopting a child? Most poskim say no. However a very famous R' Shlomo Kulger in Chachmas Shlomo (See Shulchan Aruch E"H 1) states: "I have had a doubt whether one who raises an orphan, if this is considered a fulfilment of perya verivya, since Chazal said whoever raises an orphan (boy or girl) in his home, the pasuk considers it as if he gave birth to them, if so one may suggest that it is like perya verivya, or, nevertheless, it's not like actually giving birth to the child. It seems to depend on an argument between Derisha and Taz on Y"D 242, that Drisha holds wherever the gemara says "ke'ilu" (as it does by adoption), the compared situation is not exactly identical to its analogy, and Taz argues and says they are exactly identical...." He continues to say to the Taz you do fulfill perya verivya and to Drisha you do not. But if you had children who died but you also adopted and raised orphans, even according to Drisha you will have fulfilled perya verivya - even though they weren't the same children, you did give birth to children and you did raise orphans.

Even if one may not fulfill perya verivya, it still is a very meritorious and wonderful thing to adopt orphans. See, for example, Pischei Teshuva, E"H 154:27 when discussing a couple that had been infertile for 10 years, must the husband divorce his wife, even though she was such a great wife, and one of her praises was that she allowed her husband to raise an orphan and learn with him. (The answer there was that he didn't have to divorce her, but that's not our issue.)

Surrogate Pregnancy (Shvatim as Jews, part 2)

Another explanation to Shimon's "Canaani" wife (Shimon had a son Shaul ben haCanaanis) is that she was Dina. See Rashi, 46:10 and Breishis Rabbah 11. After she was raped by Sh'chem, she refused to leave until Shimon told her that he would marry her. Only then did she leave Sh'chem with her brothers Shimon and Levi. How could Shimon have married Dinah, if they were both children of Leah, and we saw the Rambam lists incest of siblings of the same mother among the laws that bnei Noach must keep? Torah Shleima 46:10 os 68 brings several answers:
1) the only relationship forbidden to bnei Noach was adultery with a married woman, but not incest. This opinion, cited in the name of the Moshav Zekaynim, clearly argues on the Rambam.
2) According to Rabi Akiva, bnei Noach are not forbidden to their sister from the same mother. This is similar to the first answer in substance as well as in the difficulties it presents.
3) Ra"b (Rav Ovadia Bartenura?) "I have not found an answer but I heard that"... the girsa wasn't that Shimon will marry Dinah, it was that Shimon promised her he will marry her off to someone else, possibly one of his sons. (While an aunt is forbidden in Torah law, it isn't prohibited to a ben Noach, and in fact, Moshe Rabbeinu's father Amram was married to his aunt Yocheved.)
4) The main gestation of Dinah was in Rachel's womb. Therefore they were not really siblings from the same mother: Shimon gestated and was delivered from Leah's womb, but Dina was gestated in Rachel's womb and was only delivered from Leah's womb, and thus they do not have the same mother.

This last answer is fascinating. It is mentioned by Tur ha'aruch to 46:10 and 38:2, Targum Yonasan to 30:21, and Daas Zekanim ibid. The even earlier source is the gemara Brachos 60a that Leah didn't want Rachel to have less sons than Bilha and Zilpah, so she davened and Hashem switched the fetuses between Rachel and Leah.

This opinion has a huge impact on the following question: if a woman cannot conceive and uses a donated egg which is implanted, (or any situation of surragacy), is the biological mother - the woman who provided the egg - the halachik mother? There are three main possibilities: that the biological mother (the one who provides the egg) is the mother; the surrogate in whom the baby gestated is the mother even if she is not the biological mother as far as the egg is concerned; and the mother who delivered the baby even if the baby did not gestate [mostly] in her womb.

According to these opinions (that Shimon & Dina were not siblings from the same mother), the woman in whose womb the baby gestated will be the halachik mother. However, many poskim do not pasken this way. For example, Rav Shlomo Goren paskened that the biological mother (of the egg) is the mother. Rav Moshe Feinstein paskened that the mother who delivered the baby is the mother. In Dina's case, her biological mother and the mother in whose womb she developed was the same woman - Rachel. If doctors would take the egg of one woman, implant it to woman 2, then transplant it to a third woman late-term, to Rav Goren the first woman would be the mother, Rav Moshe would probably pasken the third woman was the mother, and to the Daas Zekanim et. al., probably the second woman will be the mother. (Really, maybe the reason for the Daas Zekanim is because the host mother is the same as the biological mother, but from his words, the main issue is that the host mother is the mother, not the biological mother of the egg.)

Shvatim as Jews, part 1

We just saw that the Beis Yosef brought rishonim discussing how was Yosef batel from perya verivya if he didn't have a girl; maybe it was midas chasidus. The bottom line is that the assumption is that Yosef kept all the mitzvos. Which leads to the question: did the shevatim keep the mitzvos? I've previously mentioned the Prashas Drachim by the author of the Mishna Lamelech, who demonstrated from many midrashim that Yosef and his brothers argued about whether they had kedushas yisrael or not: Yosef felt they did, and the brothers felt they did not.

Joel Rich, the audio shiur reviewer at Hirhurim, sent me a source that Yosef kept Shabbos: Eliyahu Rabbah Parsha 7 s.v. Baruch. I can add two sources: the Drisha from the above discussion - Yosef kept the entire Torah, and the Daas Zekanim Parshas Naso (Bamidbar 7:48 - Yosef kept Shabbos).

A famous question is who did the shvatim marry? See Pesachim 50a: "'And Yehuda saw there the daughter of a Canaani man.' What is Canaani? If you say literally a Canaanite, is it possible Avraham warned Yitzchak [against marrying a Canaanite], Yitzchak also warned Yaakov, and Yehuda will go marry a Canaanite? Rather, Rabi Shimon ben Lakish said it is a merchant." Ramban quotes this on Breishis 38:2. He also mentions a midrash that all the shvatim were born with twin sisters, and they married a shevet from another mother (because to marry the daughter of your mother is an isur of arayos for Bnei Noach, see Rambam, Melachim 9:5. Note that this would be an isur for a Yisrael.) This is also brought by Tur Ha'aruch on that pasuk. Ibn Ezra says they married women from Aram, Mitzrayim, Edom and Midyan, but not Canaan, except for Shimon, and that is seen from Breishis 46:10 - Shaul Ben HaCanaanis. (But from Rashi to 50:17, it seems more than one married a Canaanis.) A question on the ibn Ezra is that putting the issue of who is Jewish aside, the Torah forbade marrying people from Mitzrayim. Even though the reason did not yet apply - because they oppressed us when we were their slaves, the fact of the avos keeping the Torah was absolute and did not depend on the reasons for the mitzvos; we see Avraham had matzos and Yitzchak ate korban pesach, and the exodus from Mitzrayim had not happened! So why should they have married mitzriyos? For whatever reason, marrying a Canaanite must be worse than marrying a mitzris, whether it was due to the fact that Avraham said "from the Canaanim among whom we live, but they didn't live with mitzriyos, or for some other reason.

Tashmish During Famine

A bit of an unusual issue from the parsha. Rashi on Parshas Noach 7:7 & 8:16 says that tashmish was asur during the mabul. The first Rashi says because the world was in trouble. Rashi on Mikeitz 41:50 - Yosef had two sons before the famine - is the source that tashmish is asur during famine. This last Rashi is from Taanis 11a. Rambam brings it in Taanis 3:8. If someone wasn't mekayem piryah v'rivyah this halacha doesn't apply to them. Even if someone already was mekayem perya verivya, shouldn't they have to fulfill onah? Yes - see Beis Yosef O"C 574. Shulchan Aruch mentions this halacha in 2 places: O"C 240:12 regarding famine (Rama adds any other trouble like famine, and his source is the Yerushalmi) and the second place is O"C 574, also for famine.

There is an interesting B"Y in 574 about Yocheved bas Levi being born bein hachomos - as the family of Yaakov reached Egypt. Tosfos asks: But that was during a famine, so how could she have been conceived? Either she was conceived from Leil tevilah (Drisha assumes the shevatim also kept the mitzvos); or Levi didn't have daughters so he wasn't mekayem pv"r yet. The difficulty with that answer is why didn't Yosef try to have a girl even though it was during a famine? Maybe Yosef did some midas chasidus. A third answer is maybe because they knew they had food so tashmish wasn't asur. We'd ask the same question about Yosef - there was food? So Yosef did a midas chasidus. My next question is, if it was midas chasidus, the Rambam shouldn't bring this halacha at all, because he doesn't pasken midos chasidus. Yet he does pasken this halacha? So Rambam would say it's not a midas chasidus.) B"Y says at end it's only asmachta.

Now, what about during recession? Should tashmish be asur? Probably not. Interestingly, this
point seems to be a machlokes between political democrats (refrain) & conservatives (don't refrain) from January - see this editorial from Wall Street Journal. But another report suggests the increased workforce did cause the recession. Is recession a lagging indicator that the birthrate is too high? I don't know if the poskim had an economy like ours in mind when a halacha like this was said.

First Anniversary

One year ago today I opened this blog and wrote my first post. Events of this week demonstrate the importance of issues related to kedushas yisrael. Between the UK High Court decision prohibiting a frum school from denying admission to a student who is not halachikly Jewish (in other words, the court said the school must admit this student even though he is not Jewish) and the sudden shakeup at EJF, we must continue to understand the many halachik issues that may crop up and be prepared to defend the Halacha.

Kiddushin 41a - Asur Lekadesh Isha ad sheyirena

The Gemara (41) says one may not be mikadeish a woman until you see her. Rambam paskens this Halacha in two places: Ishus 3:19 and Isurei Biah 21:3. Raavad there also says if you don't know what you're looking for, bring an am haaretz with, so he can tell you if she looks good. Shabbos 53b brings a story where a woman was so tzanua that she was missing an arm and her husband never realized it because she was so tzanua. R' Moshe Feinstein in Dibros Moshe there (43:10) discusses maybe it was kiddushei ta'us, and also why wasn't the man praised for being so tzanu'a that he never noticed. But it is strange that she should be praised when the Halacha mandates the husband to see her and see that there are no gross misfigurations.

Rashi, Breishis 12:11 mentions that Avraham didn't realize how beautiful Sarah was until they went down to Egypt. Rashi's source is Tanchuma Lech Lecha 5. The Gemara (Bava Basra 58a; Tosfos Megilla 15a s.v. Arba also discusses this) also says that Sarah was one of the four most beautiful women who ever lived. The question is, how could Avraham have married Sarah if he didn't see her, for if he would have see her he would have known how beautiful she was!

This is the question of Maharsha, Bava Basra 16a as pointed out by Gilyon Hashas here on Kiddushin 41. Maharsha answers that Avraham did see Sarah before they got married. However, he hadn't looked at closely since that time, until he saw her reflection in Egypt. He thought she wouldn't look so beautiful at that point, many years after their wedding. But when Rashi says he noticed how beautiful she was, it was a surprise to Avraham that she was still so beautiful so many years later.

E"H 55:1 / Parshas Vayetzei

The Gaon Maharil Diskin zt"l explained the pasuk in Vayeitzei "And they (seven years) were in his (Yaakov's) eyes like a few days, in his love for her (Rachel)" (29:20) based on the Haghos Mordechai at the beginning of Kesuvos and the Rama (E"H 55:1 in the name of the Kol Bo) that an engaged couple cannot live in the same house before their marriage, lest they come to dislike each other because they are always seeing each other. Therefore the Torah emphasizes here the sanctity of Yaakov, even though he lived for seven years in the same house as Rachel before their marriage, his love did not change (diminish) and they were in his eyes like only a few days, and this is because of his great sanctity, that he was fully sanctified to Hashem.
--quoted in Har Tzvi al haTorah, collected from sayings of Rav Tzvi Pesach Frank zt"l

Or it could have been that Yaakov was out of the house so often with the flocks that he didn't see Rachel so often.