QUESTION: The Torah requires that the Kohen Gadol be married when he performs the Avodah on Yom Kippur (Vayikra 16:11); a Kohen Gadol who is not married may not perform the Avodah. However, the Torah also requires that he be married to only one woman and not to two (ibid.). Because of these requirements, Rebbi Yehudah maintains that prior to Yom Kippur another wife is arranged for the Kohen Gadol in order to ensure that he remains married in case his first wife dies on Yom Kippur. Rebbi Yehudah does not say that the Kohen Gadol should simply marry another wife before Yom Kippur, because he may not be married to two wives when he performs the Avodah.
The Gemara proposes a complex arrangement whereby the Kohen Gadol should marry a second woman before Yom Kippur and divorce both wives conditionally, in such a way that at any given moment during Yom Kippur he has only one wife and yet he is assured that if one dies he will be married to the other. The condition effectively states that in the event that one of the two women dies on Yom Kippur, then that woman (who died) is divorced retroactively (from before Yom Kippur), so that retroactively the Kohen Gadol was not married to two women when he began the Avodah. If neither woman dies on Yom Kippur, then the condition states that the second wife automatically becomes divorced retroactively.
There seems to be a much simpler solution that the Gemara could have offered to ensure that the Kohen Gadol remain married. The Kohen Gadol should marry a woman (with Kidushin (Erusin) and Nisu'in (Chupah)) on Yom Kippur at the moment his first wife dies.
Alternatively, if it is not possible for the Kohen Gadol to marry a woman on Yom Kippur because of the decree that one may not marry a woman on Yom Tov (Beitzah 36b), he should still perform Kidushin with her before Yom Kippur on condition that if his present wife dies on Yom Kippur, the Kidushin of the second will take effect at the moment that the first one dies. Why does the Gemara not offer this solution? (SHA'AGAS ARYEH #93)
However, the Gemara here clearly does not accept this, apparently because this type of Shevus is not permitted even in the Beis ha'Mikdash ("Shevus d'Medinah Lo Hutar ba'Mikdash"; Eruvin 103a). Why, though, does the Gemara here not allow the Kohen Gadol to be Mekadesh a second wife before Yom Kippur with the condition that the Kidushin take effect on Yom Kippur? (In fact, according to the Girsa of our edition of the Yerushalmi which Tosfos cites, this is actually what the Yerushalmi itself suggests.)
(b) REBBI AKIVA EIGER (Teshuvos 1:159) and the SI'ACH YITZCHAK discuss whether a person may perform an act of Kinyan prior to Shabbos which will take effect on Shabbos (see Insights to Pesachim 66:2). They prove from the Gemara here that such an act is prohibited because of Shevus. Had it been permitted, the Gemara would have said that the Kohen Gadol should perform Kidushin with a second wife before Yom Kippur on condition that the Kidushin take effect on Yom Kippur in the event that his first wife dies. Since the Gemara does not say this, it is evident that such a Kinyan is prohibited because of Shevus.
However, Rebbi Akiva Eiger then cites proof that such a Kinyan is permitted. The TERUMAS HA'DESHEN (cited by the Magen Avraham OC 339:8) implies that one should be permitted to perform Pidyon ha'Ben on Shabbos even though the father cannot give the money to the Kohen on Shabbos. The father should be permitted to give the money to the Kohen before Shabbos and stipulate that he wants the Pidyon to take effect on Shabbos. (The Terumas ha'Deshen concludes that the only reason such a Pidyon is not done in practice is because one will not be able to recite the blessings for Pidyon ha'Ben on Shabbos or on Erev Shabbos.) The Terumas ha'Deshen clearly maintains that one is permitted to do an act of Kinyan (and similarly, Kidushin) which will take effect on Shabbos.
(c) Tosfos understands from the Yerushalmi that the act of bringing a wife into the Chupah (the act of Nisu'in) constitutes Shevus, like the act of Kidushin. Accordingly, perhaps the reason why one may not perform Kidushin on condition that it take effect on Yom Kippur is because even though the Kidushin itself may be performed before Yom Kippur and take effect on Yom Kippur, the act of Chupah must be done on Yom Kippur (at the same time it takes effect), and the act of Chupah is prohibited because of Shevus.
The reason why the Chupah cannot be done prior to Yom Kippur on condition that it take effect on Yom Kippur is because the act of Chupah must take effect immediately, and not at a later time. Unlike the money given to effect Kidushin or to consummate a Kinyan, which will remain in existence the following day, an act that is transitory and will no longer exist the following day cannot take effect at a later time. (Rebbi Akiva Eiger apparently assumes that a Chupah can take effect on the following day.)
The RI HA'LAVAN suggests that the act of Chupah cannot be done on Yom Kippur for a different reason, even if it is not an act of Shevus. Practically, there is no way to perform the act of Chupah: Chupah cannot be done with Bi'ah, because Bi'ah is forbidden on Yom Kippur. An ordinary walk-under Chupah cannot be performed on Yom Kippur, because the Kohen Gadol must remain sequestered and cannot leave the Azarah. (Similarly, the new wife cannot join him in the Azarah for the act of Chupah, either because it would be a breach of his Perishah or because of the ruling of Rashi (Kidushin 52b, DH v'Chi) and the Tosefta (Erchin 2:1) that a woman may not enter the Azarah when she does not bring a Korban.)
Rebbi Akiva Eiger adds another reason for why Chupah cannot be performed on Yom Kippur. The Gemara in Kesuvos (56a) discusses whether an act of Chupah which is not fit to be consummated with Bi'ah is a valid Chupah or not. The RAMBAM (Hilchos Ishus 10:2) rules that it is not a valid Chupah. Accordingly, a Chupah performed on Yom Kippur is not valid because Bi'ah is forbidden on Yom Kippur and the Chupah is not fit for Bi'ah. Even according to those who do not rule like the Rambam and who permit a Chupah which cannot be consummated with Bi'ah, the Gemara prefers not to suggest that the Kohen Gadol perform such a Chupah because of the doubt raised in Kesuvos.
(d) The RITVA says that even if it one is permitted to perform the act of Chupah on Yom Kippur, there remains a concern that his wife will die while he is in the middle of an Avodah and he will not be able to interrupt the Avodah to marry another wife with Chupah (and the act of Chupah cannot be done through a Shali'ach.)
(See also the end of the following Insight.)
2) MAKING A RETROACTIVE "KIDUSHIN" INSTEAD OF "GERUSHIN"
There seems to be a simpler solution that the Gemara could have offered to ensure that the Kohen Gadol remain married. Even if one may not perform an act of Kidushin to take effect on Yom Kippur (see previous Insight), there still is a way to ensure that the Kohen Gadol will be married during the Avodah without having to give two conditional divorces. The Gemara should suggest that the Kohen Gadol divorce his wife on condition that he enters a synagogue, as the Gemara says, and he should be Mekadesh the second woman before Yom Kippur on condition that if his present wife dies the second woman will be married to him retroactively from before Yom Kippur. Why does the Gemara not give this suggestion? (SHA'AGAS ARYEH #93)
This procedure for the second woman has an advantage over the procedure (of marrying her and then divorcing her conditionally) which the Gemara suggests. The advantage of this procedure is that if the Kohen Gadol's present wife does not die, then the second woman will not have been married at all, and thus she remains permitted to marry a Kohen in the future. The Gemara in Yevamos (43b) says that it is preferable to avoid an unnecessary act of Chalitzah with a woman who is permitted to marry a Kohen, because the act of Chalitzah will render her unfit to marry a Kohen. Similarly, in this case, if the Kohen Gadol would marry the second woman and give her a conditional divorce, then if the condition is fulfilled (i.e. the first wife does not die) the divorce will take effect and render the second woman unfit to marry a Kohen. By giving her a conditional Kidushin, on the other hand, if his present wife does not die the Kidushin never took effect and the second woman remains permitted to marry a Kohen.
(The answers to the question in the previous Insight do not apply here, because in this case both the Kidushin and the Chupah take effect retroactively from before Yom Kippur.)
In contrast, when the Kohen Gadol gives a divorce on condition that he goes into a synagogue, there is no element of Bereirah involved. The divorce depends not on the occurrence of a future event that is beyond man's control, but rather on the Kohen Gadol's fulfillment of an ordinary Tenai (condition) -- on an action that the person himself can choose to do or not to do (for an in-depth discussion of the difference between Bereirah and a Tenai, see Insights to Eruvin 36:2). In the case of the Gemara, the condition on which the Kidushin depends (i.e. the death of his present wife) is an event beyond human control, and therefore the case is one of Bereirah.
According to one opinion cited by the Gemara in Eruvin (36b), Rebbi Yehudah maintains that Bereirah does not work ("Ein Bereirah"); a change in status cannot be effected retroactively based on a future event. Since the Gemara here discusses the opinion of Rebbi Yehudah, it does not suggest a case that involves Bereirah.
However, the Gemara itself suggests that the Kohen Gadol give the second woman a divorce on condition that his present wife does not die on Yom Kippur. Why does that stipulation not constitute Bereirah?
The Sha'agas Aryeh answers based on the words of the RAN in Gitin (25b). The Ran differentiates between a case in which one makes the change of status contingent upon the positive occurrence of a future event (he says in his stipulation, "on condition that this event happens") and a case in which one makes the change of status contingent upon the non-occurrence of a future event ("on condition that this event does not happen"). The case is one of Bereirah only when one stipulates that the change of status should take effect only if the future event happens. When one stipulates that the change of status should take effect only if a future event does not happen, it is not a case of Bereirah. (For example, if a man says to a woman, "You are married to me on condition that your father does not protest," it is not a case of Bereirah. If he says to her, "You are married to me on condition that your father grants permission," it is a case of Bereirah.)
According to the view of the Ran, the Gemara here is clear. When the Kohen Gadol divorces the second woman on condition that the first one does not die, it is not considered Bereirah because the divorce depends on the non-occurrence of an event (the death of the first wife). In contrast, if he marries a second woman on condition that the first one dies, it is considered Bereirah because the marriage depends on the positive occurrence of the event.
REBBI AKIVA EIGER (Teshuvos 1:159) rejects the Sha'agas Aryeh's answer. The Gemara still should suggest that the Kohen Gadol marry the second woman on condition that he enters a synagogue (and not on condition that the first wife dies), just as the Gemara suggests that he divorce his first wife on condition that he enters a synagogue. A moment before his first wife dies, the Kohen Gadol should walk into a synagogue and thereby cause the divorce of the first wife and the Kidushin of the second to take effect at the same moment.
(b) REBBI AKIVA EIGER (ibid.) therefore suggests another answer. The Gemara in Beitzah (36b) teaches that the Rabanan decreed (as a prohibition of "Shevus") that one may not marry or divorce a woman on Yom Tov. Perhaps they prohibited not only the actual act of Kidushin or Gerushin on Yom Tov, but also any act which fulfills a condition and causes Kidushin or Gerushin to take effect. In the case of the Kohen Gadol on Yom Kippur, the Rabanan permitted this lesser form of Shevus to enable the Kohen Gadol to perform the Avodah. (See the Yerushalmi as cited in Insights to 13:1:a.)
Nevertheless, even in a case in which the Rabanan permitted Shevus, a person preferably should avoid two acts of Shevus when he can accomplish his objective with one (TOSFOS to Eruvin 35a, DH Bo). Therefore, the Gemara suggests that the Kohen Gadol marry the second woman on condition, and give a conditional divorce to both women. By doing so, the Kohen Gadol needs to perform only one act of Shevus on Yom Kippur to make the divorce take effect (when he enters a synagogue, he causes his first wife to become divorced), instead of two acts of Shevus (if he would perform a conditional Kidushin with the second woman, his entry into the synagogue would result in two acts of Shevus -- the divorce of his first wife and the Kidushin of his second wife).
(c) Alternatively, perhaps it is not possible to perform Kidushin on condition that it take effect retroactively. In order for the Kohen Gadol to marry the second woman, he also would need to perform a conditional Chupah as well. The act of Chupah consummates the marriage because it generates "Chibas Bi'ah," feelings of intimacy between the man and woman. Logically, therefore, the act of Chupah cannot be performed on condition, because if the Kidushin never takes effect (that is, if its condition is not fulfilled), the Chupah retroactively will be rendered an act of promiscuity, because it generated feelings of intimacy between a man and woman who are not married. Therefore, the Gemara does not suggest that conditional Kidushin with Chupah be performed.
This approach also answers the question addressed earlier (see previous Insight) -- why the Gemara does not suggest that the Kohen Gadol perform Kidushin and Chupah on condition that it take effect retroactively if the first wife dies on Yom Kippur. (M. Kornfeld)
3) A RETROACTIVE DIVORCE -- POSTHUMOUSLY
Why does the Gemara require that the Kohen Gadol enter a synagogue before his wife dies in order to fulfill the condition on which the divorce depends? The divorce should take effect even if he enters a synagogue after she dies! The Gemara in Gitin (76b) teaches that a divorce takes effect after death, retroactively from the time that both partners were alive. For example, when the husband says, "You are divorced on condition that I do not return within a year," and he dies within the year, the divorce takes effect.
(b) The RITVA answers that the Kohen Gadol indeed may divorce his wife by entering a synagogue after her death. However, at the moment of her death he becomes an Onen (a mourner immediately after the death of a close relative) and is so overcome with grief that he might forget to enter a synagogue after she dies in order to effect the retroactive divorce. Therefore, the Rabanan instituted that he enter a synagogue before she dies.
(c) The OR SAME'ACH (Hilchos Gerushin 8:21) suggests that at the moment that his wife dies, the Kohen Gadol becomes Nidcheh (disqualified) from the Avodah. When she dies before he enters a synagogue to effect the divorce, the divorce of the second woman becomes annulled retroactively (as per the stipulation), and, as a result, he was married (retroactively) to two wives when Yom Kippur commenced.
When an animal designated as a Korban becomes disqualified from being offered, it remains Nidcheh even when the invalidating factor is removed. Similarly, when the Kohen Gadol becomes disqualified from the Avodah for some reason, he remains disqualified even when that invalidating factor is removed. In this case, if the Kohen Gadol does not enter a synagogue until after his wife dies, he becomes Nidcheh as a result of having two wives at the beginning of Yom Kippur. Although the divorce takes effect retroactively when he eventually enters the synagogue, such that at the onset of Yom Kippur he was not married to two women, nevertheless he remains disqualified from the Avodah.
(This comparison needs further clarification. In the case of a Korban, when the invalidating factor is removed the Korban's rectification applies only from that time onward; since there was still a time in the past at which it was disqualified, it remains disqualified. In the case of the Kohen Gadol, the invalidating factor (having two wives at once on Yom Kippur) is removed retroactively so that it never existed, and thus it is not logical to say that he "remains" disqualified.)
(d) The RASHASH suggests that none of the conditions that the Gemara mentions operate retroactively. No one becomes divorced retroactively, and no one becomes married retroactively. Conditions that involve retroactive changes of status would constitute Bereirah (see (a) of previous Insight).
Rather, the Kohen Gadol's stipulation causes the divorce or marriage to take effect prospectively ("mi'Kan ul'Haba"). When the Kohen Gadol enters a synagogue to divorce his first wife, the divorce takes effect from that moment onward, and not retroactively. Accordingly, it is obvious that he must fulfill the condition before she dies; he cannot divorce a dead wife.
The Gemara's words, however, contradict the Rashash's explanation. The Gemara explicitly says that the Kohen Gadol must enter a synagogue to divorce his wife "l'Mafrei'a" (retroactively). How does the Rashash understand the Gemara?
The Rashash explains that "l'Mafrei'a" does not mean "retroactively" in this context. Rather, "l'Mafrei'a" here means that the Kohen Gadol must enter a synagogue to effect the divorce before he begins the day's Avodah. The word "l'Mafrei'a" does not describe when the divorce takes effect, but rather when the Kohen Gadol should fulfill the condition. The divorce itself takes effect only from that time onward.
(According to the Rashash, the Kohen Gadol should assess his wife's state of health before he begins the Avodah of Yom Kippur. If she appears mortally ill, he must enter a synagogue so that the divorce takes effect and he remains married only to the second wife. If she looks as though she will live, he should not enter a synagogue, and the second wife becomes divorced.)
4) THE MITZVAH FOR A KOHEN GADOL TO PERFORM THE AVODAH EVEN AS AN "ONEN"
Abaye explains that Rebbi Yehudah means that the Kohen Gadol who is an Onen is brought from his house to the Beis ha'Mikdash to perform the Avodah ("l'Ha'aviro mi'Toch Beiso"). RASHI explains that Abaye means that it is a Mitzvah for the Kohen Gadol to perform the Avodah while he is an Onen because it will lessen his distress.
Why does Rashi say that it is a Mitzvah for the Kohen Gadol to perform the Avodah while he is an Onen? From where does Rashi learn that it is obligatory for the Kohen Gadol to alleviate his grief by performing the Avodah? Abaye seems to teach simply that Rebbi Yehudah maintains that not only may the Kohen Gadol continue the Avodah when he becomes an Onen in the midst of its execution, but he is also permitted to begin the Avodah when he is an Onen. (Indeed, this is how RABEINU ELYAKIM explains Abaye's statement.)
ANSWER: Rashi is bothered by Rebbi Yehudah's phraseology. If Rebbi Yehudah means that the Kohen Gadol is permitted to begin the Avodah as an Onen, why does he use the words "Kol ha'Yom"? He should say instead "*even* if he is at home." How does the phrase "Kol ha'Yom" express the Kohen Gadol's right to begin the Avodah when he is an Onen?
It must be that Rebbi Yehudah means that the Kohen Gadol is obligated to do the Avodah at every moment of the day because it is a Mitzvah, and that is why he says "Kol ha'Yom."
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