1) LACK OF SPECIFIC INTENT WHEN WRITING A "GET"
QUESTION: Rava asserts that a Get written without specific intent is Pasul. The Gemara attempts to prove Rava's assertion from the Mishnah that teaches that a man (who has two wives with the same name) cannot divorce one of his wives with a Get which was initially written with intent for whichever wife he would decide later to divorce. Since the husband did not have in mind any specific wife when the Get was written, the Get was not written she'Lo Lishmah, and nevertheless the Get is Pasul. The Gemara refutes this proof, saying that perhaps that case is worse than a case of "Setama" (no specific intent), and is comparable to specific intent she'Lo Lishmah because of the principle of "Ein Bereirah."
The principle of "Ein Bereirah" is normally understood to mean that if it is not clear at the present time which Kinyan or change of status the person wants to take effect, then a future occurrence has no bearing on the Kinyan, and the Kinyan or change of status does not take effect. How, then, can this Get be worse than a Get that was written with no Kavanah? If "Ein Bereirah" teaches that the Kavanah of the husband has no effect, then the Get was written without any Kavanah and is "Setama." If the law is that such a Get is Pasul, then this shows that a Get written "Setama" is Pasul! (KOVETZ SHI'URIM, Beitzah #35-36)
(a) The KOVETZ SHI'URIM points out that RASHI here applies a different understanding of the principle of "Ein Bereirah." Rashi writes that according to the opinion which maintains "Ein Bereirah," the Get was not written "Setama," because perhaps at the time that the Get was written the husband "intended for the Get to be written for one of his wives." Later, when he gives the Get to the other wife, for her it is a Get that was written she'Lo Lishmah.
What does Rashi mean when he says that the husband "intended for the Get to be written for one of his wives"? The case is one in which the husband stated explicitly that he wanted the Get to take effect for whichever wife he later would choose to divorce ("Eizo she'Ertzeh Agaresh")!
Apparently, Rashi means that according to the opinion that maintains "Ein Bereirah," future events are not considered "destined" to occur at an earlier time. Therefore, when the husband attempts to make something dependent on a future event, his words are meaningless, unless he intends to make it dependent on what the circumstances now indicate what will happen in the future. In the case of the Gemara here, the man's stipulation is interpreted to mean that he wants the Get to take effect for the woman whom he presently plans to divorce at a later date. Since we cannot be sure which woman he planned to divorce at the time that he made this statement, the Get is considered "Safek she'Lo Lishmah."
It is clear from Rashi that "Ein Bereirah" does not mean that no Kavanah takes effect. Rather, it means that a Kavanah does take effect, but we can never know which Kavanah it was that took effect. This is evident from Rashi's words elsewhere, and is consistent with the way he explains Bereirah in general. In many places (Gitin 24b, DH l'Eizo, and in all of the Sugyos of Bereirah -- see in particular Gitin 73b, DH u'Meshani, and Chulin 14a, DH Osrin), Rashi explains that even if the Halachah is "Ein Bereirah," the Kinyan still takes effect, but the details which were dependent upon the outcome of the future event remain in doubt (see Insights to Eruvin 37:1, Gitin 25:1, and Gitin 73:2). This is also the opinion of the MAHARI quoted by Tosfos to Eruvin (37b, DH Ela).
However, as mentioned elsewhere (see Insights loc. cit.), this does not appear to be the view of TOSFOS. Tosfos and other Rishonim maintain that "Ein Bereirah" means that nothing takes effect when a Kinyan or intent is linked to a future event. How, then, does Tosfos understand the Gemara?
(b) The KOVETZ SHI'URIM suggests that the Gemara's initial assumption is consistent with the view of Tosfos. Initially, when the Gemara attempts to prove from this Mishnah that a Get written "Setama" is Pasul, the Gemara already knows that the Mishnah is based on the position of "Ein Bereirah." The Gemara's question is that even if the Halachah is "Ein Bereirah," the Get is no worse than "Setama" since it was written with no intent, as Tosfos explains the principle of "Ein Bereirah." The Gemara rejects this, saying that perhaps "Ein Bereirah" indeed means that the Kavanah of "Lishmah" does take effect, and the Get therefore is "Safek she'Lo Lishmah."
The Gemara eventually concludes that a Get is Pasul if it was written "Setama," and thus the original assumption of the Gemara returns, that "Ein Bereirah" makes a Get considered to have been written "Setama."
However, it is difficult to propose that the Gemara is questioning the basic meaning of "Ein Bereirah" without making any open reference to it. The simple understanding of the original assumption of the Gemara is that a Get written in such a manner is comparable to "Setama," since the husband knew that he might divorce either one of his two wives (see Tosfos DH Kasav).
(b) Perhaps Tosfos is following his own opinion expressed in Gitin (24b, DH l'Eizo). Tosfos there explains that when the Gemara uses the words "Ein Bereirah" with regard to a Get, the Gemara is not using those words with their ordinary meaning, referring to the opinion that maintains "Ein Bereirah." Rather, the Gemara means that even according to the opinion that rules "Yesh Bereirah," there still is a Gezeiras ha'Kasuv which teaches that the "Lishmah" quality of a Get cannot be determined by future events. Therefore, even though it becomes evident retroactively that the Get was written for the woman to whom it was given, this retroactive clarification does not suffice to make the Get considered to have been written Lishmah.
According to this approach, the meaning of the Gemara is clear. The Gemara does not mean that the Get is Pasul because no intent of Lishmah took effect. Rather, the Gemara means that the Get is Pasul because the wrong type of intent of Lishmah took effect -- an intent which was clarified only retroactively. Since this type of Lishmah-intent is not valid for a Get, it is considered like a Get that was written she'Lo Lishmah for another woman, even though in this case it was actually written for the woman to whom it was eventually given.
2) "LO MINAH LO MACHRIV BAH"
QUESTION: The Gemara (3a) teaches that even though a Korban Chatas that is slaughtered with intent to be a different Korban is disqualified and cannot be offered at all, if it is slaughtered with intent to be eaten as Chulin, the wrong intent does not disqualify it. The Gemara explains that this is because "Lo Minah Lo Machriv Bah" -- having intent to slaughter the animal as an entirely different entity, with a thought that does not relate to the status of a Korban, does not have any effect, and it is considered as though it was slaughtered "Setama" and is valid.
The Gemara asks that the same principle should apply to the laws of an earthenware vessel (Kli Cheres). Normally, when any Tahor food item enters a Kli Cheres that is Tamei, that food item becomes Tamei. Nevertheless, when there is a Kli Cheres that is Tahor situated inside of an outer Klei Cheres that is Tamei, and the food enters the inner Kli Cheres, the food does not become Tamei. The inner Kli Cheres (the rim of which protrudes above the rim of the outer Kli Cheres) protects the food from the airspace of the outer Kli Cheres which is Tamei. The Beraisa teaches that even if the inner Kli is not a Kli Cheres, but a Kli Shetef (that is, a utensil made of wood, metal, or bone, which can become Tahor by being immersed into a Mikvah), the food in the inner Kli still remains Tahor. The Gemara asks that the food in the inner Kli should not be Tahor according to the principle that "Lo Minah Lo Machriv Bah," since a Kli Shetef is an entirely different type of utensil than a Kli Cheres, and therefore its presence should be disregarded (and the food inside of it should become Tamei as though it were inside of the outer, Tamei Kli Cheres).
In numerous places (Yoma 58a, Sukah 37b, Sotah 45b, Zevachim 110a, Bechoros 9b) the Gemara discusses the laws of Chatzitzah, and the Amora'im disagree about whether the law of a Chatzitzah applies to "Min b'Mino" -- two items of the same type. However, all Amora'im agree that items of different types are considered a Chatzitzah to each other. This seems to contradict the assumption of the Gemara here that items of different types do not interfere with each other as much as items of the same type. How is the principle of "Min b'Mino Eino Chotzetz" to be reconciled with the principle of "Lo Minah Lo Machriv Bo"?
(a) RASHI alludes to the answer to this question. He writes (3a, DH d'Lav Minah) that the Gemara here means that when a Korban was slaughtered for the sake of Chulin, the status ("Shem") of Chulin does not take effect on the Korban to uproot its present status. That is, the Gemara states this principle not with regard to cases of Chatzitzah (cases where physical contact is necessary), but only with regard to cases which involve a change of Halachic status. A thought that is entirely unrelated to the present status of the item cannot change the item's status. Similarly, with regard to food inside of the inner Kli Shetef, if the Kli Shetef is considered a different type of a Kli, then its presence cannot affect the status of the food inside of it such that the food should no longer be considered within a Kli Cheres. On the other hand, if the food was inside an inner Kli Cheres, then the food is no longer considered to be in the airspace of the outer Kli Cheres, but rather its status is that it is inside of the inner Kli (and is thus Tahor). However, when physical contact is necessary, a dissimilar material certainly is considered a Chatzitzah, while a similar material might not be considered a Chatzitzah, since it is considered a continuation of the object to which it is similar.
The Rishonim indeed apply the principle of "Lo Minah Machriv Bah" to a number of other situations which involve questions of a change of status, as opposed to physical separation. For example, the RAN in Rosh Hashanah (9b of the pages of the Rif) explains that although one fulfills his obligation when he hears someone blow the Shofar with intent to make music, if he hears someone blow the Shofar in order to perform the Mitzvah of teaching children how to blow he does not fulfill his obligation. The reason is that the Kavanah for making music can be ignored because of the rule of "Lo Minah Lo Machriv Bah." Therefore, it is considered as though the Shofar was blown without any Kavanah. In contrast, when one blows the Shofar with intent for a different Mitzvah, then it changes the status of the Teki'ah to a Teki'ah for a different Mitzvah, which is not the same as a Teki'ah without any Kavanah.
The RASHBA applies the principle of "Lo Minah Lo Machriv Bah" in Rosh Hashanah (34a) to explain why a mis-blown Teki'ah can be considered an interruption in a set of Teki'os, while a Teki'ah for a song is not considered an interruption. This, too, is because the Teki'ah that is not blown for the Mitzvah cannot change the status of the ensuing Teki'os to make them unrelated to the first half of Teki'os in the set.
(b) However, the RASHBA (in Teshuvos 3:282) applies the principle of the Gemara here to a question of physical Chatzitzah as well. The Rashba proves that the Tefilin Shel Yad does not have to be placed directly on the skin, but it may be placed on top of the sleeve of one's shirt. The Rashba asks that this seems to contradict the Gemara in Erchin (3b), which teaches that the Kohanim cannot don the Tefilin Shed Yad, because the Bigdei Kehunah will intervene between the Tefilin and the flesh. The Rashba answers that since there is a Mitzvah to wear Bigdei Kehunah just as there is a Mitzvah to wear Tefilin, while there is no Mitzvah to wear a sleeve on one's arm, the principle of "Lo Minah Lo Machriv Bah" applies.
According to the Rashba, why does the principle of "Lo Minah Lo Machriv Bah" not apply in every case of Chatzitzah and, consequently, render every case of "Min b'Mino" a greater form of interruption than "Min b'she'Eino Mino"?
The answer might be that, usually, when the Gemara discusses Chatzitzah, it refers to a situation in which two items must touch each other but are being prevented from doing so. In such a case, the principle of "Lo Minah Lo Machriv" would not affect the situation (and would not make the two items considered to be touching each other), because even if the object which is "Lo Minah" is ignored, there is empty space between the two items that are supposed to be touching each other (i.e., the space where the "Lo Minah" item is). The only way to make the two objects touch each other in a case of a Chatzitzah which is Min b'Mino is by viewing Min b'Mino as a single, unified object.
However, in the case of the Gemara here, if the Kli Shetef is ignored and is considered to be empty space, then the food inside of it indeed has nothing but empty space separating it from the Kli Cheres, and this suffices to make the food Tamei. If, on the other hand, the inner Kli is a Kli Cheres, then the inner Kli Cheres is Mafsik and the principle of "Min b'Mino Eino Chotzetz" does not apply, because the inner Kli Cheres cannot be considered a single, unified object with the outer Kli Cheres. It stands by itself and is not resting entirely on the outer Kli.
The Rashba, who applies this principle to the laws of Tefilin, proves from another Gemara that a sleeve is not considered a Chatzitzah between the Tefilin and the skin. Accordingly, the laws of Tefilin do not require that the Tefilin touch the skin, but rather that the Tefilin be placed opposite the Zero'a of the arm. Therefore, if the sleeve is ignored, the Tefilin is separated from the arm only by air, and this is a proper placement of Tefilin. The shirt of the Kohen, however, cannot be ignored (since it is a Mitzvah to wear it), and therefore it is considered a Chatzitzah.
Perhaps these two different views of the principle of "Lo Minah Machriv Bah" are dependent on the Machlokes between the Rambam and Ra'avad with regard to the Tum'ah of the airspace of a Kli Cheres. The RAMBAM (Hilchos Metamei Mishkav u'Moshav 8:4) writes that although a Sheretz which falls into the airspace of a Kli Cheres is Metamei the Kli, a Zav who puts his arm into the airspace of a Kli Cheres (without touching the Kli itself) is not Metamei the Kli, because only the arm entered and not the entire Zav. The RA'AVAD argues with the Rambam and says that if the airspace of a Kli Cheres is Metamei with Maga (through touching it), then why should there be any difference between a Zav that touches the Kli on its inner surface and a Zav that touches the airspace in the inside of the Kli?
RABEINU CHAIM HA'LEVI explains that the Rambam and Ra'avad are arguing about the basic understanding of the law of "Tum'as Avir Kli Cheres." The Ra'avad understands that the airspace of a Kli Cheres is considered the same as the inner surface of the Kli Cheres. A Kli Cheres does not become Tamei when a Tamei object touches its outer surface, but it does become Tamei when a Tamei object touches its inner surface. The airspace of the Kli Cheres is the same as its inner surface, and therefore one who touches the airspace is considered to have touched the inner surface. The same principle applies to a Kli Cheres, which is Tamei, into which food is placed. If food touches the airspace of the Kli Cheres, it is considered as though it has touched the inner surface of the Kli Cheres.
The Rambam, however, understands that the Tum'ah of the airspace of a Kli Cheres is not a Tum'as Maga. Rather, it is based on a Gezeiras ha'Kasuv that states that if something enters and is inside the airspace of the Kli Cheres, the Torah considers it as though a Kli Cheres had touched it. (This is similar to Tum'as Mes, which can be transferred either by touching a Mes, or through serving as an Ohel over a Mes, without touching it.) Therefore, the Rambam rules that the Zav can be Metamei the Kli only if the entire Zav enters the Kli Cheres; that is when the Torah applies the rule that a Tamei object that is fully contained within a Kli Cheres can spread Tum'ah to the Kli Cheres.
The same principle may be applied to food which is inside a Kli Cheres. According to the Rambam, the food is Tamei not because it is touching the air of the Kli Cheres, but because it has the status of being inside of a Kli Cheres. Accordingly, the case of the Gemara here -- which applies "Lo Minah Lo Machriv Bah" to the airspace of a Kli Cheres -- has nothing to do with Chatzitzah. Rather, it has to do with a change of status (as mentioned in the first answer above). However, according to the Ra'avad, the airspace of the Kli Cheres is Metamei the food because the food is touching the air. Hence, the inner Kli must act as a Chatzitzah between the airspace of the Kli Cheres and the food. If the rule of "Lo Minah Lo Machriv Bah" is applied in this case, then it is evident that this rule may be invoked even with regard to laws involving the Chatzitzah, as the Rashba writes.