1) HITTING TWO PEOPLE AT THE SAME TIME
QUESTION: The Gemara cites a Beraisa which states that when a person who is a "Safek Ben Tish'ah la'Rishon, Safek Ben Shiv'ah la'Sheni" (he is unsure which of two men is his real father) hits both possible fathers at once, he is liable for punishment. If he hits one after the other, his liability depends on the dispute among Tana'im about whether "Hasra'as Safek" is considered a proper Hasra'ah.
In what way does the person hit both possible fathers at the same moment? RASHI (DH b'Vas Achas) explains that he takes a long stick, swings it, and hits both at the same time.
However, RASHI in Chulin (82b) suggests a simpler explanation for how the son hits both possible fathers at the same time. He hits one of the men with one hand and, simultaneously, the other man with his other hand.
RASHI in Makos (16a) offers an even simpler explanation. He hits both possible fathers in the normal manner (with his dominant hand, one after the other), but he does so "Toch Kedei Dibur" -- within a very short amount of time, so that the Hasra'ah serves to make him liable for both beatings.
Why does Rashi give three different explanations for how a person can hit two men at the same time ("b'Vas Achas")? What advantage does each explanation have over the other? (See NEHOR SHRAGA.)
(a) Rashi apparently is bothered by a different problem with each explanation, and in the different Sugyos he chooses to explain "b'Vas Achas" in different ways in order to avoid the problems with the other two ways of explaining it. Since each explanation has its own advantage, in each Sugya Rashi chooses the explanation which he feels is the best explanation in the context of that Sugya. The advantages of each approach may be as follows:
1. The simplest explanation is that the child hits both men "Toch Kedei Dibur." Rashi's basis for this explanation is the law that the Hasra'ah does not need to be given immediately before the act of the transgression, but it may be given a few seconds before the transgression as long as it is within "Toch Kedei Dibur" of the transgression.
Rashi here in Yevamos and in Chulin rejects that explanation because he understands that the Hasra'ah works "Toch Kedei Dibur" only when a single act is done within a few seconds of the Hasra'ah. To make the person liable for a second act, a second Hasra'ah is necessary, even though that second act is also done "Toch Kedei Dibur." For this reason, Rashi here and in Chulin does not explain that "b'Vas Achas" means that both beatings occurred within "Toch Kedei Dibur."
(A source for this understanding may be the Gemara in Makos 20b, where the Gemara writes that if a person pulls out his hair in mourning (Kore'ach Korchah) five times, one after the other, with only a single Hasra'ah before all five acts, he is liable for only one set of Malkus. The Gemara implies that even if all of the acts were done "Toch Kedei Dibur," only one set of Malkus is administered. See Tosfos there, and Insights to Nazir 38:2.)
2. The reason why Rashi here explains that "b'Vas Achas" means that the son uses one stick to hit both men at the same time, and he does not explain that the son uses both of his hands to hit both men at the same time, is as follows. The use of both hands would be considered two different actions. Even if those two actions would occur simultaneously, the Hasra'ah would apply only to one of them. For two actions, two Hasra'os are necessary.
Alternatively, Rashi maintains "Iy Efshar l'Tzamtzem" -- it is not possible for two events to occur at exactly the same time. When the son hits the two men with his two hands, one action necessarily precedes the other, and thus he is not liable for hitting them "b'Vas Achas." When he hits them both with a single swing of a stick, however, he performs one action, and thus the Hasra'ah is able to make him liable for two different results of a single action.
3. Rashi in Chulin explains that the son hits the two men with his two hands. Why does Rashi there not explain that he hits them both with one stick? Rashi there chooses to give the simpler case, in which he hits them with two different hands rather than with one stick.
Rashi in Chulin maintains that there is no way to explain the case according to the opinion that maintains "Iy Efshar l'Tzamtzem." If one cannot do two acts at exactly the same moment, even hitting two people with a single stick will not cause the Hasra'ah to apply to both hits, since one of the two people inevitably was hit before the other. The fact that the two hits came from a single swing is not sufficient reason for the Hasra'ah to apply to both hits, according to Rashi in Chulin; the fact that they were brought about by the same swing does not make them into a single action. Two hits are always called two actions. Since the only way to understand the Beraisa which discusses hitting both men at the same time is to say that the hits occur simultaneously, the Beraisa must maintain "Efshar l'Tzamtzem."
(The underlying difference in opinion expressed by Rashi in Chulin and by Rashi in Yevamos might involve whether Hasra'ah is defined as a warning that the person not do a particular action (Rashi in Yevamos), or as a warning that the person not do a particular transgression (Rashi in Chulin). According to the former definition, a single Hasra'ah can apply to two transgressions that stem from a single action, while according to the latter definition it cannot.) (See also Insights to Chulin 82:5.)
(b) RAV YAAKOV D. HOMNICK offers a different approach to understanding the words of Rashi.
The Gemara in Chulin (82b) discusses a case in which a person eats a k'Zayis of each Gid ha'Nasheh (right and left) of an animal. Rebbi Yehudah, who maintains that only one of the two Gidim is forbidden, maintains that he is punished with one set of Malkus and not two. The Gemara asks that if the transgressor was warned with a separate Hasra'ah before he ate each Gid ha'Nasheh, Rebbi Yehudah should exempt him from punishment entirely, because Rebbi Yehudah maintains that Hasra'as Safek is not a valid Hasra'ah (and when each Hasra'ah was given, there was a doubt whether the Gid ha'Nasheh that the person was about to eat was the forbidden one). The Gemara concludes that only one Hasra'ah was given, immediately before the person ate both Gidim. Since one of the two Gidim was definitely forbidden, the Hasra'ah is considered a Hasra'as Vadai.
The Gemara's objective there is to prove that when a person is warned with a single Hasra'ah before he performs two acts, one of which is certainly forbidden, he is liable for punishment even though the warning did not specify which of the acts was forbidden. Why, though, is such a Hasra'ah valid, if the witnesses who give the warning do not know which act is the forbidden one? It must be that whether or not a Hasra'ah is a Hasra'as Safek depends not on what the witnesses know, but rather on what the wrongdoer knows. That is, Hasra'as Safek exists only when the wrongdoer can claim -- after he received the Hasra'ah and committed the act -- that he did not know for certain that his act was forbidden. When, however, he cannot make such a claim (because at least one of his two acts clearly constitutes a transgression), the Hasra'ah is not a Hasra'as Safek, even though the witnesses do not know exactly which act is the forbidden one.
Since this is the Chidush of the Gemara there, the case (of a son who hits two men, one of whom is his father) which the Gemara cites to prove that such a Hasra'ah is not considered a Hasra'as Safek must involve a single Hasra'ah given before the person performs two acts, one of which is definitely a transgression. Accordingly, Rashi there explains that the case of the son who hits the two men refers specifically to when he performs two acts of hitting.
This is also the view of the Gemara in Makos, in which Rebbi Yochanan and Reish Lakish argue whether Hasra'as Safek is a valid Hasra'ah. The Gemara cites support for the view of Reish Lakish (who maintains that Hasra'as Safek is not a valid Hasra'ah) from the Beraisa in which Rebbi Yehudah says that one who hits his two doubtful fathers is punished only when he hits them "b'Vas Achas," in which case the Hasra'ah is a Hasra'as Vadai and is valid.
The Gemara there says that Reish Lakish is consistent with his view that Hasra'as Safek is not a valid Hasra'ah when he rules "Kiyemo v'Lo v'Kiyemo." This means that the punishment of Malkus administered for the transgression of a Lav ha'Nitak l'Aseh (a Lav for which the Torah prescribes a Mitzvas Aseh for the sinner to perform to correct the effects of the Lav) is contingent upon whether the sinner subsequently fulfills ("Kiyemo") the Mitzvas Aseh associated with the Lav or does not fulfill it ("Lo Kiyemo"). That is, at the moment the person committed the transgression he became liable for Malkus, but he is given the opportunity to perform a Mitzvas Aseh in place of receiving Malkus. Accordingly, the Hasra'ah he received before the transgression was a Hasra'as Vadai (because he definitely sinned and definitely became liable for Malkus). The Gemara there apparently maintains, like the Gemara in Chulin, that even though the witnesses who give the Hasra'ah are in doubt whether or not he will subsequently fulfill the Aseh and exempt himself from Malkus, the Hasra'ah is measured according to what the sinner knows. Since the sinner knew that he was doing an act that would make him liable for Malkus if he would opt not to fulfill the Aseh, it is considered a Hasra'as Vadai.
Accordingly, Rashi there explains that the son hit the two men with two acts, because the Gemara there maintains that Hasra'as Safek is defined as a lack of knowledge on the part of the sinner, and not a lack of knowledge on the part of the witnesses. Hence, when a person performs two acts of hitting with one Hasra'ah, the Hasra'ah is considered a Hasra'as Vadai and he is liable, since one of his acts definitely constituted a transgression, even though the witnesses did not know which one.
In contrast, the Gemara here in Yevamos quotes a Beraisa which maintains that Rebbi Yehudah exempts the son who hits the two men "b'Vas Achas." The Gemara asks what his reason is for exempting the son in this case (Rashi explains that the Gemara understands that the Hasra'ah in this case is considered a Hasra'as Vadai, and thus the son should be liable). What is the Gemara's question? Perhaps the case is one in which the son did two separate acts of hitting, and since there is not a separate Hasra'ah for each act, the Hasra'ah is considered a Hasra'as Safek. It must be that the Gemara understands that the son did a single act of hitting (with a long stick), and thus the Hasra'ah was given for a single act which certainly constituted a transgression, since one of the men is his father (and hence the Gemara's question, why is he exempt).
2) WHAT TYPE OF BEIS DIN IS NEEDED FOR CHALITZAH
QUESTION: The Gemara attempts to prove whether Chalitzah must be performed in the presence of judges who are Mumchim, or whether Hedyotos suffice. Rebbi Yehudah proves that Hedyotos suffice from the fact that the verse "l'Einei" (Devarim 25:9) excludes blind people from serving as Dayanim for Chalitzah. It must be that Hedyotos suffice for Chalitzah, because if Mumchim would be necessary no verse would be needed to exclude blind Dayanim; one of the requirements for serving on the Sanhedrin is that the Dayan Mumcheh be "free of any physical blemish." It must be that Hedyotos suffice, and that is why the verse must teach that a blind man may not serve as a Dayan for Chalitzah.
This law -- that members of the Sanhedrin may not be blind -- is a specific requirement in the Sanhedrin, the twenty-three judges who preside over cases of Dinei Nefashos, corporal and capital crimes. How, then, can Rebbi Yehudah prove from this law that Mumchim are not necessary for Chalitzah? Perhaps this law proves merely that Chalitzah does not require Dayanim who are fit to judge Dinei Nefashos. Mumchim, however, are necessary. Perhaps Chalitzah is like Dinei Mamonos, monetary matters, for which Mumchim are necessary (see Sanhedrin 2a) but for which a blind Dayan is valid. (RITVA)
(a) The RITVA (see also the NIMUKEI YOSEF to Sanhedrin 32b) answers that a different verse teaches that in order to judge Dinei Mamonos, the Dayan must have at least one good eye and cannot be completely blind (Sanhedrin 34b). With regard to Chalitzah, the verse says "l'Einei" ("eyes" in the plural form), which implies that for Chalitzah the Dayan is valid as long as he is not blind in both eyes (that is, he is acceptable if he is blind in one eye). If Mumchim who are qualified to judge Dinei Mamonos are required for Chalitzah, then even without the verse of "l'Einei" it is clear that the Dayan cannot be blind in both eyes, since that is one of the requirements of Mumchim for Dinei Mamonos. It must be that Mumchim are not required at all for Chalitzah.
Why, then, does the Gemara cite the verse which teaches that members of the Sanhedrin may not be blind? It should cite instead the verse which teaches that a Dayan even for Dinei Mamonos may not be blind in two eyes. The Ritva answers that the Gemara indeed could have mentioned that verse, but it preferred to cite the Beraisa of Rav Yosef which states that the Dayan must be "free of any physical blemish." The Beraisa means that not only must a member of the Sanhedrin be free from any physical blemish (i.e. he must be able to see with both eyes), even a Dayan for Dinei Mamonos must be able to see with at least one of his eyes.
(b) Many Acharonim cite the words of the Nimukei Yosef and reject his approach categorically, primarily because it is not at all implied by the words of the Gemara. (See VILNA GA'ON in Seder Chalitzah #5; KETZOS HA'CHOSHEN 7:2; see also NESIVOS HA'MISHPAT who defends the Nimukei Yosef but who did not see the Ritva.)
The KETZOS HA'CHOSHEN suggests that according to those who require Mumchim for Dinei Mamonos, the Mumchim indeed must qualify for Dinei Nefashos as well. He bases this assertion on the words of the RAMBAM (Hilchos Sanhedrin 4:10) who writes that Semichah is granted only to a person who is fit to judge even Dinei Nefashos.