1) FOUR PROHIBITIONS WHICH TAKE EFFECT SIMULTANEOUSLY
QUESTIONS: The Mishnah (33b) discusses a case in which two brothers performed Kidushin with two sisters, and at the time of the Chupah (Nisu'in) they switched wives. Each man and woman is liable for four transgressions (and must bring four Korbenos Chatas): "Eshes Ish," "Eshes Ach," "Achos Ishah," and Nidah.
The Gemara asks why each person in this case is liable for four Korbenos Chatas for four different transgressions if the Halachah follows the opinion that "Ein Isur Chal Al Isur" (once an object is prohibited with one Isur, it cannot become prohibited again with another Isur). The Gemara answers that in the case of the Mishnah, all of the Isurim took effect simultaneously. Such a case exists when a man and his brother perform Kidushin with two sisters simultaneously by way of a Shali'ach. In such a manner, the three Isurim of "Eshes Ish," "Eshes Ach," and "Achos Ishah" take effect at the same time.
The Gemara says that the Isur of Nidah also takes effect at the same time as the other Isurim, but only in the following situation: the Isur Nidah becomes binding on the man when the woman whom he betrothed had a flow ("Shofa'as") of blood from before he was thirteen years old until after he became thirteen, and the Isur Nidah becomes binding on the woman when she had a flow from before she was twelve until after she became twelve. At the moment each one becomes obligated in Mitzvos (age thirteen for him, age twelve for her), all of the Isurim take effect simultaneously.
RASHI (DH u'Mitoch) explains that the Isurim take effect at the same time only when the man and the woman are exactly one year apart in age, and thus they become obligated in Mitzvos at exactly the same time. The man (or, more precisely, boy) gave the woman Kidushin before he was thirteen and before she was twelve, with the stipulation that the Kidushin would take effect at a later time (when they both become of age). In that way, the Kidushin takes effect at the same time as the Isur Nidah, and thus all four Isurim take effect simultaneously.
TOSFOS and the Rishonim ask a number of questions on Rashi's explanation.
(a) How can a minor perform Kidushin such that it takes effect when he becomes thirteen? A minor under thirteen is not capable of effecting Halachic changes in status such as Kidushin.
Moreover, how can a minor appoint a Shali'ach to betroth a wife for him? A minor is unable to appoint a Shali'ach. (TOSFOS DH Mitoch)
(b) Halachic adulthood, according to Torah law, does not depend on the age of the person (such as twelve for a woman and thirteen for a man). Rather, mid'Oraisa it depends on physical signs of maturity (two pubic hairs). Why does Rashi write that the Mishnah refers to when the man and the woman turn thirteen and twelve, respectively, at the same moment, at which time they become obligated in Mitzvos (and therefore can be liable to bring a Korban Chatas)? The time at which they become obligated in Mitzvos does not depend on their age, but on the development of physical signs of maturity! Accordingly, the only circumstance under which the Isurim can take effect on both of them simultaneously is when they both develop the signs of maturity at exactly the same moment, a highly unlikely, if not impossible, situation ("Iy Efshar l'Tzamtzem"). (RAMBAN)
(c) Why does Rashi write that in order for all of the Isurim to take effect simultaneously, the Kidushin must take effect when the woman becomes twelve years old? It is clear that the man's Kidushin must take effect when he turns thirteen so that all of the Isurim will take effect at the same moment. The boy's act of Kidushin cannot take effect before he is thirteen years old, and if he performs the act after he is thirteen the Kidushin does not take effect at the same time as the Isur Nidah (which takes effect at the moment he turns thirteen). Therefore, his Kidushin must take effect exactly when he turns thirteen. Why, though, must the woman's Kidushin take effect when she is exactly twelve years old? A girl under the age of twelve is able to become fully Mekudeshes with Kidushin, since her father can receive the Kidushin on her behalf. If the man who was Mekadesh her then has relations with her after she turns twelve, at that point she (and he) will be liable for four Korbenos Chatas. Even though she became married earlier, all four Isurim take effect later, at the moment she becomes obligated in Mitzvos. (This question on Rashi is not mentioned by the Rishonim and Acharonim.)
(d) Finally, why does the Gemara mention that the woman experienced continual flows of blood ("Shofa'as") from before she was twelve until after she was twelve? For a woman to be a Nidah at the time that she turns twelve, no continual flow of blood is necessary. Rather, from the moment she experiences bleeding at any point before she turns twelve, she remains a Nidah until she immerses in a Mikvah. The Gemara should say simply that she saw blood before she turned twelve (and before he turned thirteen) and she did not immerse in a Mikvah. (TOSFOS)
TOSFOS and the other Rishonim reject Rashi's explanation (and Girsa). Tosfos cites a different text of the Gemara which says that the man is liable for all four transgressions when the woman becomes three years old, and not when the man becomes thirteen as our text says. If the man had relations with the woman when she was under the age of three, he has transgressed no Isur because his act is not considered an act of intimate relations (Nidah 45a). At the moment she turns three, all of the Isurim immediately take effect and prohibit her to the man. This is how these Isurim take effect "b'Vas Achas," at one moment, for the man. (Tosfos agrees with Rashi that the woman is liable for all four Isurim when she becomes obligated in Mitzvos at the age of twelve.)
This Girsa avoids the first question the Rishonim ask on Rashi's explanation. According to Tosfos, the man was over the age of thirteen when he betrothed the girl, and therefore he certainly was able to appoint a Shali'ach and effect a Kidushin. Tosfos' approach also resolves the second question; according to Tosfos, the man and the woman do not have to become obligated in Mitzvos at the same moment in order to be liable for four transgressions, since the man could have been an adult already. When the Gemara says that the woman becomes liable for all of the Isurim "at the age of twelve," it means that she becomes obligated when she shows signs of maturity (the growth of two hairs, which usually occurs around the age of twelve). For the same reason, the third question poses no difficulty to the explanation of Tosfos. Tosfos clearly states that the woman may become Mekudeshes at any time, even before she becomes twelve. The question is only on the explanation of Rashi, who implies that the Kidushin takes effect only when she becomes twelve at the same time as the man becomes thirteen.
However, there are a number of other problems with the explanation of Tosfos as well (besides the obvious problem of suggesting a change in the Girsa of the Gemara). Tosfos does not answer the fourth question, why the Gemara must say that the woman had a continual flow, and not that she simply became a Nidah once and remained a Nidah. This question poses an even greater difficulty according to Tosfos, because according to his Girsa both statements ("he is liable when she had a flow from before three to after three" and "she is liable when she had a flow from before twelve to after twelve") refer to the age of the woman. If both time periods refer to the woman, why does the Gemara separate them into two? The Gemara should combine them into one period and say that both the man and the woman are liable "when she had a flow of blood from before she was three until after she was twelve."
The Rishonim (RITVA, RASHBA) answer that the Gemara's intention is to emphasize that it makes no difference whether or not the girl was a Nidah at anytime between the ages of three and twelve. Even if she immersed in a Mikvah during that period, as long as she was a Nidah when she turned three and when she reached the age of twelve, the Isur takes effect. When the Gemara says that she had a "continual flow" ("Shofa'as"), TOSFOS and the Rishonim write that it is "Lav Davka."
(The explanation of Tosfos is based on the assumption that the man is not prohibited to the woman before she turns three years old. This assumption, however, may be debatable. Although it is true that it is not possible for him to have relations with her until that age, that does not necessarily mean that the Isurim do not take effect on him at all until she reaches that age. Rather, perhaps the Isurim do take effect on him, but he cannot transgress them until she reaches the age of three.)
How does Rashi answer the questions on his explanation of the Gemara?
(a) The RASHBA and other Rishonim answer that the Gemara in Kidushin (63a) states that according to Rebbi Meir -- who maintains that one may make a Kinyan on an item that has not yet entered the world ("Davar she'Lo Ba l'Olam") -- a Nochri is able to perform Kidushin with a Jewish woman by stipulating that the Kidushin take effect "after I convert." Rashi may understand that the Gemara here follows Rebbi Meir's opinion that one may make a Kinyan on a "Davar she'Lo Ba l'Olam." Accordingly, a minor is able to be Mekadesh a woman by stipulating that when he becomes an adult, the Kidushin will take effect (in this case, the minor is the "Davar she'Lo Ba l'Olam," as he is not yet an adult). Similarly, the minor is able to appoint someone to be Mekadesh a woman for him by stipulating that when he reaches adulthood, the other person will become his Shali'ach.
(Tosfos does not accept this reasoning. Tosfos maintains that a minor lacks more than just the Halachic ability to make a Kinyan. While a Nochri has the mental capacity to make a Kinyan of Kidushin, the Torah teaches that his act of Kinyan is not Halachically binding. A Katan, in contrast, does not have the mental capacity to decide to make a Kinyan in the first place, even one that will take effect at a later time. This disagreement between Rashi and Tosfos may be based on a fundamental difference in understanding the Torah's exemption of a minor from Mitzvos. Tosfos may understand that a minor is exempt from Mitzvos because his mind is not fully developed until a certain age. The Chachamim had a tradition that when signs of maturity appear (the growth of two hairs), we may assume that his or her mind is sufficiently developed. Rashi, in contrast, may understand that regardless of whether or not the minor's mind is developed, the Torah decreed that he is not obligated in Mitzvos and cannot effect Kinyanim until he turns thirteen (or grows two hairs). In fact, the ROSH (Teshuvos, Klal 16) writes that the age of thirteen for Mitzvos is a Halachah l'Moshe mi'Sinai. That is, although the minor's mind might be developed even before that time, he still lacks the Halachic prerequisites for being obligated in Mitzvos and for making Kinyanim. Since his mind is developed, however, he is able to make a Kinyan (and appoint a Shali'ach) that will take effect later, and we may assume that he is able to make a conscious decision. (For this reason, the CHASAM SOFER (Teshuvos YD 184, 317) discusses the possibility that a minor who has a mature mental capacity may be obligated in Mitzvos even when he is less than thirteen years old. See also Insights to Nidah 45:2.)
The RASHBA, however, challenges this answer. The Gemara here attempts to establish the Mishnah according to Rebbi Shimon. Rebbi Shimon disagrees with Rebbi Meir and maintains that "Ein Adam Makneh Davar she'Lo Ba l'Olam." As such, Rebbi Shimon should rule that a minor cannot make a Kinyan for later.
Perhaps Rashi maintains that, in this case, Rebbi Shimon agrees that a minor may effect a Kinyan. If the minor's mind is developed and he merely needs to wait until he reaches a certain age because of a Halachah l'Moshe mi'Sinai, he is not considered a "Davar she'Lo Ba l'Olam" because no action or event is required to give him the capacity to effect a Kinyan; that ability will come automatically with the passage of time (he is only "Mechusar Zeman"), and thus he may make a Kinyan now and stipulate that it take effect when he reaches the age of adulthood. (See MISHNEH L'MELECH, Hilchos Ishus 4:7.)
(b) Why does Rashi attribute the coming of adulthood to a person's age and not to physical signs of maturity?
1. The RAMBAN writes that perhaps Rashi explains the Sugya according to the opinion that "Toch Zeman k'Lifnei Zeman" -- when two hairs appear before the boy reaches the age of thirteen, his status is that of a minor and not an adult (Nidah 46a). In such a case, at the moment the boy becomes thirteen those hairs make him an adult as long as they remain on him past the age of thirteen.
2. The RASHBA answers based on the Gemara in Kidushin. When the hairs grow, Beis Din considers the person to be an adult retroactively to the beginning of that day. Therefore, even if the man and the woman do not develop signs of maturity at the exact same moment, as long as their signs appear on the same day they are considered to have become adults at the beginning of that day, and thus they became adults at exactly the same moment.
3. The MISHNEH L'MELECH (Hilchos Ishus 2:18, 4:7) answers that according to RABEINU TAM (cited by the TUR EH 155), if two hairs grow on the last day of the twelfth year (for a boy, or the last day of the eleventh year for a girl), they are considered signs of maturity but the minor does not have the status of an adult until sunset. Accordingly, the signs of maturity of the boy and girl may have grown on the same day and not at the same time, and yet they become adults at the same moment (at sunset of that day).
He adds that this may explain why Rashi presents the case that the boy was Mekadesh the girl on the day before they reached adulthood. Had the Kidushin been performed any earlier, any hairs that they grew at that time would not have been signs of maturity and the Kinyan of Kidushin would have been a Kinyan with a "Davar she'Lo Ba l'Olam." In contrast, when they grow hairs on the last day, they are merely "Mechusar Zeman" (as mentioned above), and their Kinyan is not considered to be a Kinyan with a "Davar she'Lo Ba l'Olam."
(c) The answer to the third question, that a woman does not need to be twelve years old in order for Kidushin to take effect (and for all of the Isurim to take effect at one moment, when she reaches the age of twelve), may be as follows. Rashi understands that the reason why all of the Isurim take effect at the same moment for the man when he reaches the age of thirteen is that until the age of thirteen he was not obligated to observe the Mitzvos. In contrast, for a woman the Isur of "Eshes Ish" takes effect upon her body (that is, she becomes an "object of Isur" to others). Since the Isur of "Eshes Ish" affects her body and is not merely something she must do or avoid doing, the Isur takes effect upon her even before she becomes obligated in Mitzvos (at age twelve). The other Isurim ("Eshes Ach," "Achos Ishah") are different. They prohibit her to marry specific people; since those Isurim prohibit her to some but not to all others, they do not render her an "object of Isur." Similarly, the Isur of Nidah does not render a woman an "object of Isur" since it is an Isur that can be removed with Tevilah in a Mikvah (see Tosfos 2a, DH v'Achos). Therefore, the other Isurim take effect upon her only when she becomes an adult, at the age of twelve.
This explains why Rashi does not write that the woman received Kidushin as a minor (through her father). Had she received Kidushin as a minor, the Isur of "Eshes Ish" would have taken effect before she reached the age of twelve, while the other Isurim would have become relevant only afterwards, at the age of twelve. Since "Ein Isur Chal Al Isur," the later Isurim would not have taken effect at all.
Rashi derives this from the wording of the Gemara. When the Gemara discusses how the Isur Nidah takes effect at the same time as the other Isurim, it does not use the word "Ela" ("rather"). This implies that it does not retract its earlier statement, that the two brothers performed Kidushin to the two sisters at the same moment. If, however, the Isur applies only when the boys and girls reach the age of adulthood, it should make no difference when they performed Kidushin. Even if one act of Kidushin preceded the other, all of the Isurim take effect when they reach adulthood (as the MISHNEH L'MELECH asks in Hilchos Ishus 4:7). It must be that the Isur of "Eshes Ish" indeed takes effect before the girl reaches adulthood. (M. KORNFELD)
(d) This approach may answer the fourth question as well. It is true that a girl who experiences bleeding remains a Nidah until she immerses in a Mikvah. However, the Gemara here mentions that she had a continual flow ("Shofa'as") because it wants to emphasize that the Isur of Nidah -- in contrast to the other Isur which prohibits her to all men (other than her husband), the Isur of "Eshes Ish" -- is not a title which she acquires but a prohibition which applies to her as long as she is a Nidah. Consequently, it is not necessary to find a way in which the Isur of Nidah takes effect at the moment she turns twelve. The Gemara uses the active description of "Shofa'as" instead of the passive description of "a woman who is a Nidah" in order to emphasize this point.
2) CONCEPTION WITH "BI'AH RISHONAH"
QUESTION: The Mishnah (33b) discusses a case in which two brothers performed Kidushin with two sisters, and at the time of the Chupah (Nisu'in) they switched wives. Each man and woman is liable for four transgressions (see previous Insight). In addition, before each woman returns to her proper husband, she must separate for three months. This separation is done in order to avoid confusion about the father of the child in case she became pregnant.
The Gemara asks why there is a concern that these women may have become pregnant at the moment of the Chupah if it is known that "a woman does not conceive from her first act of relations (Bi'ah Rishonah)."
What is the Gemara's question? Perhaps the Mishnah refers to a case in which the women were married previously, and this act is not their "Bi'ah Rishonah"! (TOSFOS HA'ROSH)
(a) The TOSFOS HA'ROSH answers that according to the Girsa of Tosfos (see previous Insight) the answer is obvious. Tosfos explains that the Mishnah refers to a case in which the women became married before they were three years old. Any act of relations performed prior to that age did not constitute relations and the girls are not considered Be'ulos (since their Besulim return until the age of three). Consequently, the act of relations with their husbands after they reach the age of three is considered "Bi'ah Rishonah." (See also RASHASH.)
(b) RAV YAKOV EMDEN and the MAHARSHA (in MAHADURA BASRA) explain that the Gemara asks merely why the Mishnah does not qualify its statement and limit the requirement to separate for three months to women who previously had relations. The Mishnah implies that all women in this situation must separate for three months before they return to their proper husbands, even women who never before had relations. The Gemara inquires why they must separate if there is no concern that a woman becomes pregnant from the "Bi'ah Rishonah."
This approach is slightly inconsistent with the words of the Gemara's answer. The Gemara answers that the Mishnah's requirement that the women separate for three months before they return to their proper husbands applies only when the first, erroneous husbands had relations when them twice. If the Mishnah's ruling is limited to such a case, why does the Gemara not answer simply that the Mishnah is limited to a case in which the women had relations previously? (MAHADURA BASRA; see ARUCH LA'NER, DH v'Ha, who defends this answer.)
(c) The MAHARACH OR ZARU'A (#164) cites an answer in the name of the MAHARAM MI'ROTENBURG (this answer also appears in TESHUVOS MAHARAM MI'ROTENBURG CHADASHOS #151, and TASHBATZ KATAN #453). A woman who is not a Besulah cannot become married through "Kenisah l'Chupah," bringing her into the Chupah. Rather, she becomes married only through Bi'ah, as the Yerushalmi states (as cited by Tosfos to Yoma 13b, DH l'Chada). Since the Mishnah says that the women were switched "at the time of entering the Chupah," it evidently refers only to the type of women who achieve marital status through entering the Chupah, or women who never had relations before.
(c) The TOSFOS HA'ROSH cites a different answer in the name of the MAHARAM MI'ROTENBURG. The Gemara's inference is from the fact that the Mishnah says "at the time of entering the Chupah." Of what relevance is the ceremony of Chupah in this case? The Mishnah could have said simply that the men switched their wives; it did not need to add that they entered the Chupah. The Mishnah apparently intends to teach that had the men switched their wives without a Chupah, each man would have been obligated to bring only three Chata'os and not four. There would have been no obligation to bring a Chatas for the Isur of "Eshes Ish."
Why would there have been no Isur of "Eshes Ish" without a Chupah? How does the Chupah affect the Isur of "Eshes Ish"? That Isur takes effect at the time of Erusin, not at the time of Chupah (Nisu'in)! It must be that the Mishnah discusses a case in which each woman is not an "Eshes Ish" before the Chupah, but rather a "Na'arah Me'urasah." When a man has relations with another man's "Na'arah Me'urasah," the punishment is Sekilah (and not Chenek, the punishment for transgressing the normal Isur of "Eshes Ish"). The Mishnah in Kerisus (2a) excludes the Isur of "Na'arah Me'urasah" from its list of Isurim punishable with Kares and which obligate one to bring a Korban Chatas.
Since the status of "Na'arah Me'urasah" apply only to a woman who is a Besulah (as the Torah states in Devarim 22:23), the Mishnah obviously refers to a woman who never had relations before. This is the basis of the Gemara's question.
The assertion of the Maharam mi'Rotenburg that adultery with a "Na'arah Me'urasah" is not punishable with Kares and does not obligate one to bring a Korban Chatas is novel. (The Maharach Or Zaru'a asserts that the Maharam mi'Rotenburg later rescinded this view.) His suggestion has prompted lengthy discussions among the Acharonim. (See, for example, OTZAR SIFRA of Rav Menachem Zemba zt'l Hy'd, Mishnah 5, at the end of "Binyan Av mi'Kasuv Echad"; TO'AFOS RE'EM, Yere'im ha'Shalem 7:3; CHIDUSHEI RABEINU MEIR SIMCHAH to Sanhedrin 53a; KLI CHEMDA, Parshas Ki Setzei 11:1; see also Insights to Kerisus 2:2).
Why, though, should there be no Kares and no Korban Chatas in the case of a "Na'arah Me'urasah"? After all, a "Na'arah Me'urasah" is also an "Eshes Ish" (RASHASH to Sanhedrin 51b; ARUCH LA'NER 33b). Moreover, the laws of a "Na'arah Me'urasah" should be more stringent than the laws of a normal "Eshes Ish" because the punishment (Sekilah) is more severe. Why, then, does the Maharam mi'Rotenburg suggest that the case of a "Na'arah Me'urasah" is less stringent (in that it has no Kares and no Korban Chatas)?
The CHESHEK SHLOMO and RAV MENACHEM ZEMBA (loc. cit.) suggest that the Maharam mi'Rotenburg means that the prohibition of "Na'arah Me'urasah" is a "Davar she'Hayah bi'Chelal v'Yatza Lidon b'Davar he'Chadash" -- it was originally included in the category of "Eshes Ish" but was removed from that category with respect to a novel Halachah (it is punishable with Sekilah, while every other Isur of "Eshes Ish" is punishable with Chenek). Since the Torah did not explicitly return it to the category of "Eshes Ish," the Halachos of "Eshes Ish" do not apply to the Isur of "Na'arah Me'urasah." (See the TOSFOS YESHANIM 4a, DH Ela Ov, who implies that when the Torah prescribes a punishment of Sekilah instead of Chenek for a certain transgression, this does not constitute being "removed from that category with respect to a novel Halachah" and the principle of "Davar she'Hayah bi'Chelal v'Yatza..." does not imply. See also Rav Menachem Zemba, ibid.)
The Acharonim cite numerous proofs against the Maharam mi'Rotenburg's proposal. The Toras Kohanim (Dibura d'Chova 1:11) derives from a verse that one who sins with a "Na'arah Me'urasah" is obligated to bring a Korban Chatas. (Although the words of the Toras Kohanim clearly refute the Maharam mi'Rotenburg's assertion that no Korban Chatas is brought for transgressing the Isur of "Na'arah Me'urasah," in one respect the Toras Kohanim supports the Maharam mi'Rotenburg's assertion: the Toras Kohanim indicates that a "Na'arah Me'urasah" is indeed different from all other cases of "Eshes Ish," for a special verse is needed to teach that one is liable for a Chatas.) RASHI in Kesuvos (3a, DH Shavyuhah) alludes to this Toras Kohanim, and the RAMBAM seems to conclude that the Isur of "Na'arah Me'urasah" is punishable with Kares and Chatas (Hilchos Isurei Bi'ah 1:1 and 6; Sefer ha'Mitzvos #352). (If Na'arah Me'urasah does not share the Halachos of the other Arayos because it is not punishable with Kares, there may be grounds to argue that one should not be liable for Ha'ara'ah with a "Na'arah Me'urasah"; see Yevamos 54b.)
The fact that the Mishnah in Kerisus does not list "Na'arah Me'urasah" among the transgressions for which one is Chayav Kares does not prove that "Na'arah Me'urasah" is not Chayav Kares. As the Aruch la'Ner (ibid.) points out, perhaps the reason why "Na'arah Me'urasah" is not listed is that it is included in the Isur of "Eshes Ish," which is listed.