KERISUS 11 (1 Elul) - Dedicated l'Iluy Nishmas Esther Chaya Rayzel (Friedman) bas Gershon Eliezer (Yahrzeit: 30 Av, Yom Kevurah: 1 Elul) by her son-in-law, Dr. Eli Turkel of Raanana, Israel. Esther Friedman was a woman of valor who was devoted to her family and gave of herself unstintingly, inspiring all those around her.
1) THE "YOVEL" YEAR IN THE TIME OF THE SECOND BEIS HA'MIKDASH
OPINIONS: The Gemara cites a verse from the book of Ezra (10:19) that relates how the Jews who came back with Ezra from Bavel did Teshuvah. The verse says, "They gave their hands (to make a commitment) to divorce their [Nochri] wives, and bring a Korban Asham of a ram from the flock as atonement for their guilt." Rav Chisda explains that this means that they were atoning for the sin of marrying a Shifchah Charufah. They agreed to leave their Shifchos, and they brought the Korban Asham which one is obligated to bring for sinning with a Shifchah Charufah.
Why were the people obligated to bring a Korban Asham for the sin of Shifchah Charufah? Rebbi Akiva states that a Shifchah Charufah is one who is betrothed, with Erusin, to an Eved Ivri. However, the Gemara in Erchin (29a) states that the law of Eved Ivri applies only when the laws of the Yovel year are in effect. Were the laws of the Yovel year in effect during the times of the second Beis ha'Mikdash, such that the sin of Shifchah Charufah applied?
(a) TOSFOS in Erchin (beginning of 32a) proves from the Gemara here that the Yovel year was in effect mid'Oraisa even in the times of the second Beis ha'Mikdash. He proves this from the fact that a Shifchah Charufah is one who is betrothed, with Erusin, to an Eved Ivri, as Rebbi Akiva states in the Beraisa. Since the Gemara in Erchin (29a) states that the law of Eved Ivri applies only when the laws of the Yovel year are in effect, it follows that the Yovel year must have been in effect in the times of the second Beis ha'Mikdash (when the people returned from Bavel with Ezra).
Tosfos in Gitin (36a, DH bi'Zeman) cites this proof in the name of RABEINU TAM. Rabeinu Tam points out that one might attempt to refute this proof by saying that the Isur of Shifchah Charufah in fact applied only during the times of the first Beis ha'Mikdash, and the people in the times of Ezra were atoning for their sin of Shifchah Charufah that they committed many years earlier. Indeed, such a situation is described in the Gemara in Horayos (6a). The Gemara says that in the time of Ezra, the people offered a Korban for the sin of Avodah Zarah that they committed in the times of the first Beis ha'Mikdash. However, Rabeinu Tam asserts that this rebuttal is not logical, because we find in the verses that the people were guilty only of the sin of Avodah Zarah in the times of the first Beis ha'Mikdash, but not the sin of Shifchah Charufah. Therefore, Rabeinu Tam concludes that the Gemara here is a valid proof that Yovel applied even in the times of the second Beis ha'Mikdash.
(b) The CHIDUSHEI HA'RAMBAN (Gitin 36a, DH u'Mi Ika) disagrees with Rabeinu Tam's opinion that Yovel applied, mid'Oraisa, in the times of the second Beis ha'Mikdash. The Ramban cites the law that, nowadays, the obligation to separate Chalah is only mid'Rabanan, because the Torah says with regard to the Mitzvah of Chalah, "When you enter the land" (Bamidbar 15:18), which implies that the obligation of Chalah applies only when the majority of the Jewish people reside in Eretz Yisrael. Similarly, the Ramban asserts, the Torah states with regard to Yovel, "And proclaim liberty throughout the land for all of her inhabitants" (Vayikra 25:10), which implies that, mid'Oraisa, Yovel applies only when a majority of the Jewish people reside in Eretz Yisrael (which was not the case during the times of the second Beis ha'Mikdash).
(Tosfos in Erchin (32a) disagrees with the Ramban's logic. Tosfos maintains that in order for Yovel to take effect, it is not necessary for a majority of the Jewish people to reside in Eretz Yisrael. Rather, it suffices that some members of each Shevet reside there, and this indeed was the case during the times of the second Beis ha'Mikdash. As long as some people from each Shevet are present, it is considered that "all of her inhabitants" are present.)
The Ramban argues that Rav Chisda might agree with the view of Acherim cited later, who maintain that a Shifchah Charufah is a Shifchah who was betrothed to an Eved Kena'ani. According to this, there is no proof that the laws of Eved Ivri were in effect during the times of the second Beis ha'Mikdash, and, consequently, there is no proof that the laws of Yovel were in effect at that time.
According to the Rabanan, who define a Shifchah Charufah as a Shifchah betrothed to an Eved Ivri, it must be that the Korban Asham that the people offered in the times of Ezra was for some other transgression, and not for the sin of Shifchah Charufah, since there was no Shifchah Charufah (mid'Oraisa) during the times of the second Beis ha'Mikdash. (The Ramban writes that it is possible that the Asham that they brought was an Asham Taluy for some other sin which the people were in doubt about whether they committed.)
The Ramban adds that there is another possible way that the people might have brought a Korban Asham because of the sin of Shifchah Charufah in the times of Ezra, according to Rav Chisda. Since Rav Chisda in Gitin (end of 43a) maintains that it is possible to effect Kidushin with a Shifchah Charufah, perhaps they married the Shifchos when the first Beis ha'Mikdash was still standing and Yovel was in effect, but they did not have relations with them until the times of Ezra. In this way, it is possible to have a case in which they were obligated to bring a Korban Asham for sinning with a Shifchah Charufah even in the times of Ezra. (D. BLOOM)
2) A "SHIFCHAH CHARUFAH" ENGAGED TO A FREE MAN
QUESTION: Rebbi Akiva defines a Shifchah Charufah as a woman who is half-Shifchah and half-free, and who is betrothed (Me'ureses) to an Eved Ivri, a Jewish servant. RASHI (DH l'Rebbi Yishmael) explains that the verse of Shifchah Charufah cannot be discussing a case of a Shifchah who is Me'ureses to an Eved Kena'ani (a Nochri slave owned by a Jew and obligated in Mitzvos like a woman), because the Kidushin does not take effect with an Eved Kena'ani.
Why, though, does Rebbi Akiva assume that a Shifchah Charufah is betrothed to an Eved Ivri, and not to an ordinary Jew who is not an Eved?
(a) The SEFER HA'CHINUCH (129:2) writes that the law of Shifchah Charufah indeed applies even to a Shifchah who is betrothed to a free man. This is also apparent from the Yerushalmi in Kidushin (end of 1:1) and the ROSH in Gitin (43a).
Perhaps the reason why Rebbi Akiva mentions specifically Eved Ivri is that he argues with Rebbi Yishmael in the Beraisa who says that a Shifchah Charufah is betrothed to an Eved Kena'ani.
In addition, it is more common for a Shifchah to be betrothed to an Eved Ivri, since she is forbidden to marry a free man because she is still a half-Shifchah. (Even according to the RAMBAM -- who rules that, mid'Oraisa (Hilchos Isurei Bi'ah 12:12), a Shifchah may marry a free man -- she is forbidden to marry him mid'Rabanan.)
(b) RABEINU GERSHOM and the RA'AVAD (in Toras Kohanim, Parshas Kedoshim) seem to maintain that she is considered a Shifchah Charufah only if she is betrothed to an Eved Ivri and not to a free man, since she is prohibited to marry a free man. The Torah discusses a permitted relationship, and not a forbidden one.
3) THE PUNISHMENT FOR A MINOR WHO SINS WITH A "SHIFCHAH CHARUFAH"
QUESTION: The Gemara asks, "How can a Katan be liable [to bring a Korban for sinning with a Shifchah Charufah]?"
The Gemara's question implies that a Katan is not liable for sinning with a Shifchah Charufah.
However, the Gemara in Sanhedrin (69a) says, "The Torah writes 'Ish' (referring to an adult male) to teach that an adult male will be liable [for Shifchah Charufah]. How do we know that a Katan who is at least nine years and one day old will also be liable? The Torah writes 'v'Ish' to teach that such a Katan is also liable." It is clear from the Gemara in Sanhedrin that a Katan is Chayav. What, then, is the question of the Gemara here?
(a) The RAMBAM (Hilchos Isurei Bi'ah 3:17) rules that if a Katan who is nine years and one day old has relations with a Shifchah Charufah (who is not a minor), both are liable. The Katan is Chayav to bring a Korban (when he becomes an adult (ME'IRI to Sanhedrin 69a), and the Shifchah is punished with Malkus.
How does the Rambam understand the words of the Gemara here that asks, "How can a Katan be liable?" It must be that he understands that the Gemara is asking, "How can a Katan always be liable?" When the Bo'el is a Katan and the Shifchah is no longer a Ketanah, both are liable, but when the Shifchah is a Ketanah and the Bo'el is not, then both are exempt. The Gemara is asking, "Why does the Mishnah imply that in all cases, the Katan will be liable?"
(b) TOSFOS (DH d'Ha Makshu) explains that the Gemara in Sanhedrin means that when the male is at least nine years and one day old, the woman is punished with Malkus. The nine-year-old male is not obligated to bring a Korban since he is a minor. Accordingly, a Katan is always exempt, even in the case of a Shifchah Charufah.
(cited by the Shitah Mekubetzes #6) and the RA'AVAD
(Hilchos Isurei Bi'ah 3:17) rule that if the Bo'el is a Katan, then not only does he not bring a Korban, but she also does not receive Malkus. How do they understand the Beraisa in Sanhedrin? The ME'IRI
(Sanhedrin 69a) explains that according to the Rosh and Ra'avad, the Beraisa is discussing a case of Tum'as Keri and not Shifchah Charufah. (Regarding the subject of obligating a minor, see Insights to Sanhedrin 69:1
4) TWO WITNESSES WHO CONTRADICT EACH OTHER
QUESTION: The Mishnah teaches that when one witness tells a person that the piece of meat that he ate was Chelev, and another witness tells him that the piece of meat was not eat Chelev, the person must bring a Korban Asham Taluy because of the doubt about whether he transgressed the Isur of Chelev.
This implies that when two witnesses contradict each other, we do not say that each one's testimony cancels out the other one's testimony and consider it as if neither witness said anything, but rather the contradicting witnesses create a genuine doubt about what happened.
The status of testimony of contradicting witnesses seems to be the subject of a dispute between the RAMBAM and RAMBAN. The Rambam (Hilchos Gerushin 12:19) writes that when two witnesses come together to Beis Din to testify about a woman's lost husband, and one witness says that the husband died and the other witness says that the husband is alive, the woman is not permitted to get married again on the basis of this testimony. If she goes and gets married on her own, she must leave her second husband, because there is a Safek d'Oraisa about whether she is still a married woman, and out of doubt she is forbidden to the second husband.
The Rambam adds that if the woman married the witness who testified that her husband died and she also says that she is certain that her husband died, she is allowed to remain with the second husband.
The MAGID MISHNEH there cites the RAMBAN who argues with the Rambam's ruling. The Ramban maintains that "Ed Echad b'Hach'chashah Lav Klum Hu" -- one witness who has been contradicted by another witness is worthless. Therefore, since the witness who says that the husband died, and the woman herself who says that her husband died, are contradicted by the other witness who says that he is still alive, the testimony of the first witness (and of the wife) is worthless, and the woman is not permitted to remain married to the first witness. The woman must leave the second husband even though both she and the second husband testify that they are certain that the first husband died.
The Ramban's opinion that a single witness that is contradicted is considered worthless seems to be inconsistent with the Mishnah here. The Mishnah says that when one witness says that a person ate Chelev, even though another witness contradicts him, the first witness' testimony creates enough of a doubt to obligate him to bring a Korban! (See MACHANEH EFRAIM, Hilchos Edus #8, cited by REBBI AKIVA EIGER here.)
ANSWER: The KEHILOS YAKOV (Kesuvos 25:1, DH v'Od) answers that even the Ramban agrees that the contradicted witnesses are not literally worthless, and that, as the Mishnah here says, a contradicted witness is able to create a doubt about whether the person ate Chelev, and this doubt is strong enough to obligate him to bring a Korban Asham Taluy. The testimony of the contradicted witness is not accepted by Beis Din as a valid witness, but nevertheless there is a doubt about which witness is telling the truth -- the one who says that the person ate Chelev or the one who says that he did not eat Chelev. This doubt suffices to obligate him to bring an Asham Taluy.
In contrast, to allow the woman to remain married to the second husband it is not sufficient to create a doubt. Even though the woman says that she is certain that her first husband died, her words are opposed by a Chazakah that it was known that she was a married woman and forbidden to every other man until now. In order to override this Chazakah, there must be at least one valid witness. In this case, however, neither the first witness nor the woman is a valid witness, since they are both contradicted by the other witness. This is the Ramban's intention when he says that the contradicted witness is "Lav Klum Hu." He does not mean that the testimony of the witness is completely worthless, but rather that the contradicted witness cannot be accepted by Beis Din as a valid witness to override the Chazakah that she is married and allow her to remain with the second husband. (D. BLOOM)