QUESTION: The Gemara asks whether a Menudeh (one who has been placed in Niduy, or excommunication) is permitted to be with his wife.
What is the Gemara's question? The Gemara earlier clearly states that no one may go within four Amos of a Menudeh, and this prohibition applies to his wife as well. (RITVA and others)
(a) The RAN in Nedarim (8a) and other Rishonim cite the Gemara later (16a) which says that it is possible for a person to be in Niduy in one place but not in another. The Gemara's question whether a Menudeh may be with his wife applies only in such a case. When a person was placed in Niduy in one city but in his hometown he is not in Niduy, is he prohibited to be with his wife when he is not in the city which placed him in Niduy? Perhaps even when he is in his hometown, where he is not a Menudeh and where people do not have to stay away from him, he still may be prohibited to be with his wife because that requirement is a Halachah relevant to how he must act as a Menudeh and not to the way others must conduct themselves with him.
(b) The RAN (in Nedarim) and the RASHBA answer in the name of the RA'AVAD that a Menudeh's wife is not included in the requirement to stay away from him because of the principle, "Ishto k'Gufo," one's wife is like his own body.
(c) The ROSH here writes that not only is the Menudeh's wife permitted to be in his presence, but even his children may approach him. He proves this from the incident of Rebbi Elazar ben Hurkenus (Sanhedrin 88a) whose son removed his Tefilin for him when he was placed in Niduy. The reason why one's family members may come within his four Amos is because when Beis Din places him in Niduy, they do not include his family members in the prohibition to go near him.
Similarly, the RITVA answers that although everyone else must keep away from the Menudeh, his wife is not required to avoid him. Moreover, all of the other members of his household (and not only his children) are allowed to approach him. This is part of the stipulation of the Niduy made by Beis Din, which allows him his primary needs (Nedarim 39a).
HALACHAH: The SHULCHAN ARUCH (YD 334:4) rules that a Menudeh is permitted to be with his wife, as the Rosh writes. The REMA adds that others permit him to be near the rest of his household, as the Ritva writes.
QUESTIONS: The Gemara derives that an Avel is prohibited to be with his wife from the verses which describe the conduct of David ha'Melech when his infant son died. The verse says that after the child died, "David comforted his wife Bas Sheva, and he came to her..." (Shmuel II 12:24). The verse implies that he was with his wife only after the Aveilus for his son ended, but during Aveilus he was prohibited to be with her.
(a) The proof from David ha'Melech that an Avel is prohibited to be with his wife is problematic. The verse says that "it happened on the seventh day that the child died" (ibid. 12:18). If the child was only seven days old when he died, then he had the status of a Nefel (stillborn), and there is no requirement of Aveilus for a stillborn. Why does the Gemara assume that David ha'Melech was observing the laws of Aveilus?
(b) Furthermore, it is clear from the verses that David ha'Melech did not observe the laws of Aveilus when his child died. The verse says that when the child died, "David stood up from the floor, washed, and anointed himself and changed his clothes. He came to the house of Hash-m and bowed down. He came to his house, asked for food, and they served him food and he ate" (ibid. 12:20).
How can the Gemara derive laws of Aveilus from David ha'Melech if he was not an Avel? (RADAK ibid.)
(a) The RADAK suggests two approaches to answer the first question:
1. The Chachamim understood that when the verse says, "It happened on the seventh day that the child died," it does not mean that the child died on the seventh day of his life. Rather, it means that he died on the seventh day of his illness. He was older than thirty days and thus his parents were obligated to observe Aveilus for him.
2. Even if the child was only seven days old as the verse implies, perhaps David ha'Melech nevertheless was obligated to observe Aveilus for him. The Gemara in Shabbos (136a) says that the reason why one does not mourn for a Nefel is because the child was not yet completely formed. However, if one knows for certain that the child's gestation reached full term, he is required to mourn. David ha'Melech knew that his child was a full-term baby because he had been with Bas Sheva only one time (Shmuel II 11:27).
(b) Several approaches are offered to answer the second question:
1. The RADAK suggests that David ha'Melech washed himself and changed his clothes before he became an Avel -- that is, when he was an Onen, after the child died but before he was buried, at which time the Halachos of Aveilus (according to some Rishonim) are not yet observed. The reason he washed as an Onen was because he wanted to bow down to Hash-m in the place of the Shechinah in fulfillment of the dictum, "One is required to bless Hash-m for the bad just as he is required to bless Hash-m for the good" (Berachos 54a). David ha'Melech wanted to praise Hash-m even on the occasion of the loss of his child, and thus he immediately went to the place of the Shechinah. Since it is not proper to go there unclean and disheveled (as was David ha'Melech's state as a result of fasting and sitting on the ground for seven days while the child was sick), he needed to wash and change his clothes.
This is also the explanation of the RITVA here, as well as the RA'AVAD cited by the ROSH.
2. The CHIDUSHEI HA'RAN answers that perhaps the laws of Aveilus apply to a king differently from the way they apply to all others. A king is not permitted to disgrace himself publicly, and thus he may not observe the laws of Aveilus which apply in public. For this reason, David ha'Melech was permitted to wash and change his clothes. A king is required only to observe the laws of Aveilus which apply in private, such as the prohibition against marital intimacy.
3. In his second answer, the RAN suggests that David ha'Melech needed to wash himself not for pleasure but in order to clean off the dirt from his body which had accumulated after sitting on the ground for seven days. It is permitted for an Avel to wash or change his clothes when he does so not for pleasure but to remove dirt (as the Gemara implies on 24a).
QUESTION: The Gemara proves that a Menudeh (one who has been placed in Niduy, or excommunication) is permitted to send his Korbanos to the Beis ha'Mikdash with a Shali'ach. The Gemara proves this from the fact that during their sojourn in the wilderness, the Jewish people -- who had the status of a Menudeh -- sent their Korbanos to the Mizbe'ach.
The Gemara here contradicts the Gemara in Chagigah (6b). The Gemara in Chagigah says that the Jewish people were ostracized in the wilderness because they sinned with the Golden Calf. Rebbi Akiva there cites a verse (Amos 5:25) which shows that they did not offer Korbanos in the wilderness due to their state of censure. Only the members of the tribe of Levi, who did not participate in the sin of the Golden Calf, brought the Korban Tamid.
The Gemara there clearly says that the Jewish people did not offer Korbanos in the wilderness (and that they were not even permitted to), while the Gemara here says that they did offer Korbanos. How are the two Gemaras to be reconciled? (MISHNEH L'MELECH, beginning of Hilchos Temidin u'Musafin)
(a) The TUREI EVEN in Chagigah answers based on the words of TOSFOS here (15b, DH v'Shimshu). Tosfos questions what the source is for the Gemara's assertion that the Jews offered Korbanos in the desert. He concludes that "perhaps there is some indication from the verse" but he does not specify any verse which gives such an indication.
The Turei Even suggests that the proof from the verse is according to the opinion of Rebbi Yishmael in Chulin (17a), who maintains that the Jews were not allowed to eat meat in the desert unless it was the meat of a Korban (as derived from Devarim 12:20 et seq.). If they ate meat in the desert, then obviously they also offered Korbanos!
The Turei Even adds that if the verses from which Rebbi Yishmael derives his opinion indeed are the source that the Jewish people offered Korbanos in the desert, then there is no contradiction between the Gemara here and the Gemara in Chagigah. The Gemara in Chagigah is expressing the view of Rebbi Akiva, who argues with Rebbi Yishmael and maintains that the Jews were permitted to eat meat that was not from a Korban ("Basar Ta'avah"). Accordingly, he maintains that the Jews in the desert did not offer Korbanos.
The RASHASH here asks that the Torah explicitly specifies various Korbanos which the Jews offered in the desert, such as the Korban Pesach in the second year of their sojourn. The Rashash answers that perhaps they offered the Korban Pesach because of a special command from Hash-m for that moment ("Hora'as Sha'ah"), but they did not bring other Korbanos.
(b) A simple answer to the question may be suggested as follows. The Gemara in Chagigah does not say that the members of the tribe of Levi owned the Korbanos which they brought. Rather, they were merely the ones who offered the Korbanos; the animals themselves were not necessarily the property of the Leviyim. Perhaps the Gemara there means that the Jewish people were not involved in the actual service of offering the Korbanos since they were in a state of censure. They were certainly permitted, however, to own a portion of a Korban and to let the Kohanim and Leviyim offer it on the Mizbe'ach. This is what the Gemara here means when it says that the Jews sent their Korbanos in the desert.
Why, though, does the Gemara in Chagigah teach that the Yisraelim in the desert had no role in the service of offering Korbanos? Ordinary Jews never have a role in the service of offering Korbanos; only Kohanim and Leviyim are involved in the actual service. Even if the Jews in the desert would not have been in a state of censure, they would not have offered their Korbanos because that service is the sole domain of the Kohanim and Leviyim.
The answer is that the Yisraelim indeed have a role in the offering of the Korbanos. The Yisraelim perform the service of the Ma'amados -- groups of Yisraelim who stand watch over the Korban. When the verse teaches that the Jews in the desert were not involved at all in the service of the Korbanos, it means that they did not take part in the Ma'amados due to their state of censure. They nevertheless owned a portion of the Korbanos (and gave money towards the purchase of the Korban Tamid), and the Kohanim and Leviyim offered the Korbanos on their behalf. Accordingly, the Gemara here and the Gemara in Chagigah do not contradict each other. (-Based on the MITZPEH EISAN; see also Insights to Chagigah 6:2.)