1) "SHOMER PESAYIM HASH-M"
QUESTION: The Beraisa teaches that one who has relations with his wife on the ninetieth day after the conception of the fetus is considered to be killing the fetus. The Gemara asks, how can a person know the day of conception in order to avoid relations on that day? Rather, Abaye says, one is permitted to have relations and he need not worry that it is the ninetieth day after conception, because "Shomer Pesayim Hash-m" (Tehilim 116:6), Hash-m protects those who do not know to be careful.
The Gemara applies this principle to a number of situations. The Gemara in Avodah Zarah (30b) records the view of Rebbi Eliezer who says that a person is allowed to eat grapes and figs at night, even though there is a concern that a Sheretz might have inserted poison into it, and he need not worry about the element of danger inherent in eating the fruit. Rebbi Eliezer derives this from the verse, "Shomer Pesayim Hash-m."
The Gemara in Yevamos (12b) and Kesuvos (39a) records the opinion of the Chachamim who maintain that all women, even those for whom pregnancy might be dangerous, should have relations in the normal manner (without a Moch), and Hash-m will protect them -- because "Shomer Pesayim Hash-m."
The KOVETZ SHI'URIM (Kesuvos #136) asks, how can the verse of "Shomer Pesayim Hash-m" give license to a person to do something that is dangerous? One is required by Halachah to go to great extents in order to prevent danger to life, and one must even desecrate Shabbos if doing so will protect a person's life. How, then, can a person be careless and take the risk of killing a fetus, or eating a poisonous fig at night, and assume that Hash-m will protect him from danger?
ANSWER: The KOVETZ SHI'URIM answers that the requirement to protect oneself does not require that a person avoid performing an ordinary act. It is normal to eat food at any time of day and night, and for a man and wife to have relations. Accordingly, this form of behavior cannot be restricted; Hash-m guards those who do not know to be careful in the course of behaving normally. In contrast, when a person performs a dangerous act that is not a normal form of behavior, Hash-m does not provide him with special protection.
Why, though, is one permitted to desecrate Shabbos in order to prevent danger to his life, when the observance of Shabbos is a normal form of behavior? The SEDER YAKOV here explains that if a person's life is at risk on Shabbos and there is something he can do in order to remove himself from that danger, then Hash-m does not guard the person from danger. This is because the concept of "Shomer Pesayim Hash-m" applies only to people who cannot help themselves. (See also ARUCH HA'SHULCHAN OC 3:6 and MAGEN AVRAHAM 3:11.) (See more in Insights to Avodah Zarah 30:2.) (Y. MONTROSE)
2) THE "CHATAS HA'OF" OF A "YOLEDES"
QUESTION: The Gemara relates that the students of Rebbi Shimon bar Yochai asked him why the Torah requires a Yoledes to bring a Korban. He answered that when she begins to give birth, she swears that she will never again be together with her husband. In order to atone for her Shevu'ah, she must bring a Korban.
Rav Yosef questioned this reasoning. A Yoledes sins willfully when she later has relations with her husband after making her oath, while a Korban Chatas is brought only for an inadvertent transgression of an oath. If Rebbi Shimon bar Yochai means that the Korban is brought to annul the oath so that she does not transgress it when she has relations, then his words are still difficult to understand. A Korban does not annul an oath; one must have the oath rescinded by a Chacham based on regret.
Rav Yosef asks further that the reasoning of Rebbi Shimon bar Yochai should require a Yoledes to bring a Chatas Behemah (if she can afford it), and not a Chatas ha'Of (which the Torah requires that a Yoledes bring), because a Shevu'as Bituy warrants a Korban Oleh v'Yored.
The Gemara ends without addressing the questions of Rav Yosef, and it continues to a different topic. Why does the Gemara not address his questions, or at least give another reason for why a Yoledes must bring a Korban? It seems that the Gemara, for some reason, understands that the answer to Rav Yosef's questions is obvious. What is the answer?
Moreover, there is a different question on Rebbi Shimon bar Yochai's teaching. How can the woman's Shevu'ah at birth be the cause of her requirement to bring a Korban? The Torah gives the husband the right to annul any oath that his wife makes on the day that he hears of it. An oath not to be together with her husband certainly falls into the category of "Devarim she'Beino l'Beinah" -- matters that are between him and her, which a husband has the power to annul. Since the husband presumably annuls her oath at birth, there is no need for atonement from a Korban.
(a) The MAHARSHA answers the second question and suggests that, normally, a husband does not utilize his prerogative to annul his wife's oath on the day that he hears it.
The Maharsha points out that this also answers Rav Yosef's question that the woman is an intentional sinner and the Korban should not provide her with atonement. Since the woman does not know that her husband did not annul the Neder on the day that he heard it, her transgression of her oath may be considered an inadvertent transgression, and therefore it does warrant the bringing of a Korban.
Regarding Rav Yosef's question that it should warrant a Korban Oleh v'Yored, the Maharsha explains that since the property of a woman belongs to her husband, she is considered to be in the category of a poor person who brings a Chatas ha'Of for transgressing an oath.
The words of the Maharsha are difficult to understand. Why would the husband not immediately annul any oath that his wife makes? He certainly should understand that his wife made the oath under the duress of the suffering of birth. Also, what does the Maharsha mean when he says that a woman is considered a poor person who may bring a Chatas ha'Of because her husband owns everything that she has? Does this mean that every married woman brings a Chatas ha'Of for any transgression of Shevu'as Bituy (according to Rebbi Shimon bar Yochai)? The Mishnah in Nega'im (14:12; see also Nazir 24a) says that, according to Rebbi Yehudah, a husband brings a rich man's Korban for his wife's obligation because of the principle of "Ishto k'Gufo." (From the Gemara in Nazir, it seems that the Rabanan disagree with Rebbi Yehudah. Perhaps Rebbi Shimon bar Yochai follows the view of the Rabanan.)
Moreover, according to the Maharsha's reasoning, it seems that she should bring a Korban Minchah and not a Chatas ha'Of, because a Minchah is the minimal Korban brought by an impoverished person for transgressing an oath.
The Maharsha's explanation of the Gemara is also problematic in light of the Gemara in Nedarim (15b). The Gemara there says that only if a woman swears that the "pleasure from your relations is forbidden to me" is such an oath valid. If she merely swears not to have relations with her husband, the oath is invalid because she already gave her husband the right to have relations with her ("Meshubedes l'Ba'alah"). Since such a Shevu'ah is entirely invalid, there is no need for her to bring a Korban at all! Why does the Gemara not discuss this point?
(b) The RAMBAN (to Vayikra 12:8) explains that "the primary intention of this [requirement to bring a Korban] is that since the woman swears out of pain, and she will not be permitted to fulfill her oath because she is Meshubedes to her husband, the Torah wants to provide her with atonement for her thoughts... because Hash-m, in His great mercy, desires to provide every creation with the opportunity to atone."
The words of the Ramban may be explained based on the Gemara in Nedarim (22a). The Gemara says that when a person would come to Rebbi Yanai seeking to annul a Neder, Rebbi Yanai would ask him, "If you knew that they (in Heaven) were to open your books and sort through your actions, would you have made a Neder?" The commentators there explain that when a person makes a Neder he shows that he is so confident in his fulfillment of the other Mitzvos that he feels that he can create new prohibitions for himself. This presumptuous attitude launches a Heavenly inspection of his actions to determine if he really is a person who fulfills all of the Mitzvos so scrupulously. Obviously, few people would want to be subject to such scrutiny.
Perhaps the Ramban means that although the woman's Neder is invalid, her intention behind the Neder is still present; she shows that she feels confident in creating more prohibitions for herself. Consequently, she is still subject to Heavenly scrutiny. Under normal circumstances, no Korban specifically atones in such a situation. However, Hash-m, in His infinite mercy, forgives the woman who made this oath because of her difficulties in childbirth, and He gives her the opportunity to bring a special Korban in order to atone for her oath and defend herself against the scrutiny which could result from such an oath.
This answers Rav Yosef's questions on Rebbi Shimon bar Yochai. The Korban Yoledes is not brought for atonement for the transgression of her oath. Rather, it is brought as atonement for the presumptuous attitude that she had when she made the oath. The oath itself is not valid for a number of reasons: she is Meshubedes to her husband and cannot remove that Shibud through an oath, and even if the oath could take effect, the husband could annul it. Therefore, there is no need to bring a Korban for atonement for transgression of the oath itself.
This approach answers another question. The requirement that a Yoledes bring a Korban applies even to women who did not make an oath at childbirth. Why should they be required to bring this Korban? According to the words of the Ramban, the purpose of the Korban is to give the woman a chance to rectify any minor infraction that she might have committed through thinking about making an oath because of the birth. (See SEFER YOSHEV OHALIM, Parshas Tazria, at length.) (Y. MONTROSE)
3) THE LAW OF "BENOS KUSIM"
QUESTION: The Mishnah states that the daughters of Kusim are deemed to have a status of Nidos from birth. The Gemara quotes Rav Sheshes who explains that the Mishnah follows the view of Rebbi Meir. Rebbi Meir maintains that we are "Chayish l'Mi'uta" -- we must be concerned for the minority in the case of a Safek and we do not follow the majority. Since a minority of girls see Dam Nidah before they reach maturity, the daughters of Kusim have the status of Nidos from birth.
The Gemara (Shabbos 17a) includes the ruling that Benos Kusim have the status of Nidos from birth in its list of the eighteen points on which Beis Hillel and Beis Shamai agree. Why, then, does the Gemara here insist that the Mishnah's ruling is in accordance only with the view of Rebbi Meir?
ANSWER: TOSFOS (32a, DH Rebbi Meir) explains that although both Rebbi Meir and Rebbi Yosi agree that the Mishnah's ruling is one of the eighteen undisputed laws, they disagree about the nature of the decree. According to Rebbi Yosi, the Chachamim gave Benos Kusim the status of Nidos in order to prevent us from mingling with them. According to Rebbi Meir, the Chachamim gave them the status of Nidos from an early age because the Kusim did not accept the Torah's law that a one-day-old girl becomes a Nidah when she has a discharge of blood, and thus we must suspect that every Bas Kusi had a discharge of blood.
The Gemara states that the Mishnah is in accordance with Rebbi Meir and not Rebbi Yosi because the Mishnah mentions the reason, "Since they are Machmir for every shade of blood," which implies that their Tum'ah is due to the laws of Nidah and not to a decree made for the sake of preventing intermingling. (Even Rebbi Meir, who is Chayish l'Mi'uta, agrees that the law of the Mishnah is only a Gezeirah and is not a Torah law, because it is unusually rare for a girl to become a Nidah at such a young age.)