1) THE PRACTICAL RAMIFICATIONS OF THE CONVERSION OF A KATAN
QUESTION: The Gemara teaches that Beis Din may immerse a Katan in a Mikvah for the sake of Gerus, conversion. RASHI writes that once they convert the Katan, he is considered a full-fledged Ger, and, consequently, when he touches wine he does not make it prohibited like a Nochri. Why does Rashi mention this particular practical implication of the Gerus of the Katan, instead of the fact that the Ger's Kidushin will take effect as he writes later (DH Yecholin Limchos)? Rashi writes that the Katan's touch does not render wine prohibited because he wants to give a practical implication that applies even when the Ger is still a Katan.
However, why does Rashi not write simply that the practical implication of the Gerus is that Beis Din must see to it that the Katan observes the Mitzvos because of Chinuch? Although Chinuch is only a Chiyuv d'Rabanan, the Isur of wine touched by a Nochri is also only d'Rabanan. Why does Rashi not mention this more obvious practical implication?
The answer is that Rashi apparently follows the opinion of those Rishonim (see Insights to Yevamos 114:1
) who say that the obligation of Chinuch applies only to the child's father and not to the mother or to Beis Din. Whether Beis Din has to stop a Katan from transgressing an Isur is a question discussed by the Gemara in Yevamos (114a). Therefore, there is no obligation of Chinuch and Beis Din does not have to stop him if he does an Isur, and therefore the only practical implication of his Gerus taking effect is that if he touches wine it does not become prohibited.
2) THE AGE AT WHICH A "GER KATAN" MAY RENOUNCE HIS CONVERSION
QUESTION: The Gemara says that at the moment the Ger Katan becomes an adult, he has the option of renouncing his conversion by formally protesting ("Mocheh") and saying that he does not accept the Gerus. If he does so, the Gerus becomes annulled retroactively. However, if he becomes an adult and delays protesting his conversion even for one moment, he may no longer protest since he accepted his Gerus for one moment as an adult.
When exactly is the Ger Katan supposed to protest his Gerus? He reaches adulthood when two pubic hairs grow in, but the exact moment is not known. Before that moment he cannot be Mocheh because he is a Katan, and after that moment passes it is too late for him to be Mocheh. How is it possible to know the moment at which he becomes an adult? (TOSFOS YESHANIM)
(a) TOSFOS (DH l'Chi) writes that until the Ger grows up and acts like a Jew by doing something Jewish, he may still be Mocheh.
(b) The TOSFOS YESHANIM suggests that he may be Mocheh by acting like a Nochri before he reaches adulthood, and continuing to act like that until after he reaches adulthood. That is considered one long act of Macha'ah which was in effect at the moment he became an adult.
Tosfos and the Tosfos Yeshanim seem to disagree about what is necessary for the conversion to take effect when the Katan reaches adulthood. Is it necessary to have an act of acceptance in order for his Gerus to take effect, or is he a Ger as long as there is no act of rejection, and the lack of rejection is considered an acceptance of the Gerus ("Shetikah k'Hoda'ah")? Tosfos maintains that an act that shows acceptance is necessary, and therefore the Ger must act like a Jew in order for the Gerus to take effect. The Tosfos Yeshanim maintains that as long as the Ger does not perform an act of rejection, the Gerus is valid.
Alternatively, they may disagree about the mechanics of how the Macha'ah itself functions. The Tosfos Yeshanim follows the view of the RASHBA in Kidushin (23a) who explains that although Gerus is a Zechus (merit) for the Katan, it nevertheless is not a "Zechus Gamur," a complete benefit to him, since it carries with it an element of Chov (such as the restrictions from the hedonism of living as a Nochri). Because it is not a total Zechus, the Ger may be Mocheh and say that he considers the Gerus a Chov, and thereby annul the Gerus retroactively. In order to do this, however, he must issue an active Macha'ah. In lieu of anything active to stop the Gerus (such as an announcement that it is a Chov to him), it will take effect.
Tosfos, on the other hand, may understand that although Beis Din performs Gerus for him when he is a Katan, and Gerus works for a Katan without his consent, when he reaches adulthood and has intellectual maturity, his consent is required to consummate the Gerus. (This seems to be the view expressed by Tosfos in Sanhedrin 68b.) Accordingly, what is necessary for the Gerus to take effect is a positive act that will finalize the Gerus, and what is necessary for the Gerus not to take effect is a lack of a positive act to leave the Gerus unfinished and ineffective, rather than an active Macha'ah which will annul the Gerus.
(c) The TOSFOS RID proposes a novel solution. He explains that as soon as the Ger develops a mature mind, even if he is not yet thirteen years old and does not have two hairs, he is able to be Mocheh. He may be Mocheh at any point from the time that he has a mature mind until he has two hairs.
The logic behind the Tosfos Rid's explanation may be understood based on the words of the CHASAM SOFER (YD 314). The Chasam Sofer writes that the age of adulthood of a Nochri may not be the same as that of a Jew. The Halachah that a Jew is considered an adult when he has two hairs is a Halachah l'Moshe mi'Sinai; it is one of the Shi'urim, measures, that was taught through a Halachah l'Moshe mi'Sinai (Teshuvos ha'Rosh 16:1). The RADVAZ (Hilchos Melachim 9:9) writes that all of the Halachos l'Moshe mi'Sinai apply only to Jews who received the Torah at Sinai, and they do not apply to Nochrim.
It follows that the adulthood of a Nochri should not depend on the age of thirteen years or on the arrival of two hairs. Rather, it depends on mental maturity; a Nochri is considered an adult at the moment he reaches mental maturity, even if he reaches mental maturity before the age of thirteen. According to this approach, the Tosfos Rid's logic is clear. If the Ger Katan chooses to be Mocheh, that means he wants to remain a Nochri. As a Nochri, he is considered an adult whenever he reaches mental maturity, even before the age of thirteen. That is why he may be Mocheh from the time his mind matures. The limit of Macha'ah -- when he no longer has the option to be Mocheh -- is when he reaches the age of thirteen and has two hairs, because at that point he is considered an adult and is able to accept the Gerus (for at that time he becomes an adult if the Gerus takes effect). (See also Insights to Nazir 62a.)
3) THE STATUS OF A WOMAN WHO HAD RELATIONS WITH A MINOR
OPINIONS: Rav and Shmuel disagree about whether an adult woman who has relations with a minor becomes a "Mukas Etz" or not. Rav says that she is a Mukas Etz. Shmuel argues and says "Ein Mukas Etz b'Basar," that human flesh cannot make her into a Mukas Etz.
(a) RASHI explains that according to Rav, she is a Mukas Etz because "[the Katan's Be'ilah] is not worse than a stick." It seems that Rashi understands that the Gemara is discussing a situation in which the Be'ilah of the Katan removed the woman's Besulim, and that is why Rav equates it to a Mukas Etz (since the Besulim of a Mukas Etz is also removed). This explains why Rashi writes that another practical difference between Rav and Shmuel (besides the sum of money that is written in her Kesuvah) is whether this woman who lived with a Katan is permitted to marry a Kohen Gadol (who may marry only a Besulah). According to Shmuel, she is permitted to marry a Kohen Gadol even though a Mukas Etz may not marry a Kohen Gadol.
Rashi may have derived this understanding from the wording of Shmuel. When Shmuel expresses his opposing opinion, he does not say simply the inverse of Rav's statement, that the Katan does not make her a Mukas Etz. Rather, he says instead that "flesh cannot make her a Mukas Etz." This statement implies a general rule which applies not only with regard to her Kesuvah but with regard to other Halachos as well.
The SHITAH MEKUBETZES adds that Rashi disagrees with the way that Tosfos and the other Rishonim understand the Sugya (see below).
(b) TOSFOS (DH u'Shmuel) writes that the Gemara is discussing a case in which the Katan did not remove her Besulim. Tosfos asks that if the Katan removed the Besulim, how can Shmuel say that she is not a Mukas Etz? She would be exactly like a Mukas Etz, a woman who lost her Besulim through a means other than Be'ilah. According to Tosfos, it is clear that a Kohen Gadol would be permitted to this woman even according to Rav.
Tosfos' question on Rashi is very strong. There seems to be no way to justify allowing this woman to marry a Kohen Gadol. Similarly, she should receive a Kesuvah of only 100 Zuz and not 200.
The TOSFOS RID explains that Rashi maintains that even though the Katan removed the Besulim, it is as if the woman removed it with her finger. In such a case, she still receives 200 Zuz for her Kesuvah. A Mukas Etz, though, is different, and it causes her to lose 100 Zuz from the Kesuvah (according to the Rabanan) because it is an unintended occurrence which causes her to lose her appeal and grace ("Chen") in the eyes of her husband. The SHITAH YESHANAH cited by the Shitah Mekubetzes explains the Gemara in a similar manner.
However, this explanation does not suffice to explain the words of Rashi, who says that she is permitted to marry a Kohen Gadol. How can she be permitted to a Kohen Gadol if she no longer has her Besulim?
It is possible that Rashi agrees with Tosfos that the case of the Gemara involves a Katan who did not remove the woman's Besulim. When Rashi writes that the Be'ilah of a Katan is no different than a stick, his intention is to explain why Rav compares a Be'ilas Katan to a Mukas Etz. If a Be'ilas Katan does not remove the Besulim, in what way is it similar to a Mukas Etz? Rashi answers that the reason a Mukas Etz does not have a Kesuvah of 200 Zuz is because she has less "Chen" in the eyes of her husband, since he was not privileged to remove her Besulim (see TOSFOS to 4a, DH Be'ilas); the husband prefers to be the one to remove her Besulim since it creates a stronger bond between them. Similarly, after a Be'ilas Katan, even though the act did not remove the Besulim, the bond between the woman and her husband whom she will marry will not be as strong, and thus she receives a Kesuvah of only 100 Zuz.
Why, though, is she disqualified from marrying a Kohen Gadol? Perhaps the Be'ilas Katan leaves a Pesach Pasu'ach, an opening, even though it does not remove any blood. Since she now has a Pesach Pasu'ach as a result of the act, she may not marry a Kohen Gadol. (See also the words of RAV ELYASHIV as cited in He'oros b'Maseches Kesuvos.)
4) "EIN ADAM TOREI'ACH B'SE'UDAH U'MAFSIDAH" -- THE REASON A MAN IS BELIEVED TO CLAIM "PESACH PASU'ACH"
QUESTION: The Gemara cites the Mishnah (12b) which states that if a man finds his wife to be a Be'ulah, he may claim that the marriage was a "Mekach Ta'us," an error, and he may refuse to give her the entire Kesuvah, according to Rebbi Yehoshua. One opinion in the Gemara explains that "Mekach Ta'us" does not mean that the entire marriage is annulled, but that she loses 100 of the 200 Zuz of the Kesuvah, but she receives the remaining 100. Although she was not a Besulah, she does not lose the entire Kesuvah but only 100 Zuz.
The Gemara earlier (10a) says that a man is believed to say that he found his wife to be a Be'ulah ("Pesach Pasu'ach Matzasi") because of the Chazakah that he would not put forth so much effort to arrange the wedding feast and then get rid of his wife so quickly unless he is telling the truth. However, if his claim of "Pesach Pasu'ach" will only cause her to lose 100 Zuz from the Kesuvah and he will remain married to her, he will not be losing anything! Why, then, is he believed? (TOSFOS 10a, DH Chazakah)
(a) TOSFOS answers that, indeed, if he does not divorce her he will not be believed. The Gemara refers only to a case in which he wants to divorce her right away and give her a Kesuvah of 100 Zuz. In such a situation, he is believed because of the Chazakah that "Ein Adam Torei'ach...."
(b) The RAMBAN and RE'AH explain that we assume that he is going to divorce her because once he has created an unpleasant atmosphere in the marriage by claiming she was not a Besulah and making her lose part of her Kesuvah, they are not going to remain married to each other. ("A person does not spit into a cup and then drink it.")
(c) The RAMBAN cites a different answer in the name of TOSFOS. The benefit the man experiences from toiling to prepare the wedding feast is that he feels good when people see that he married a Besulah. If, afterwards, he claims that she was a Be'ulah, he will lose the pleasure of people knowing that he married a Besulah.
(d) The RAMBAM (Hilchos Ishus 11:14) explains that the Chazakah is that a man does not want to turn "his day of joy into a day of mourning." He does not want to ruin the joy of the moment by commencing legal action against his wife at this moment, even if he does not end up divorcing her. He still does not want to lose the joy of the moment. (See SHEV SHEMAITSA 2:10.)