Hearos (Insights) on Daf Yomi

A few times in the gemara it raises the issue whether vestos are considered d'oraysa or d'rabonon. There are many aspects to this issue, most fundamentally to define the concept of vestos d'roaysa. In the next post I hope to discuss the more fundamental aspect. However, today I want to point out that within the opinion of vestos d'oraysa, there seems to be a machlokes between Rashi and Tosafos. Rashi (d.h. d'oraysa) writes something cryptic - vestos are d'oraysa from a halacha l'moshe mi'sinai, that we establish her to have safeik tu'mah. Rashi seems to understand that the halacha l'moshe mi'sinai itself is a halacha that only establishes a questionable status of tu'mah, but doesn't establish her as definitely tamei. Tosafos (d.h. afilu) raises a question within the opinion that vestos are d'rabonon, how can a woman be permitted m'dorasya at the time of her veset, the gemara in shavuos seems to learn out from a pasuk that she is forbidden. Tosafos answers that she is certainly forbidden at the time of her veset, but after she waits enough time to go to the mikvah after the veset passes, and the husband doesn't know if she went to the mikva, according to the opinion that vestos are d'rabonon she is permitted without him verifying her status. However, according to the opinion that vestos are d'oraysa, Tosafos writes that we assume she "definitely" saw, therefore a chance of immersion doesn't take away the "definite" status. Tosafos seems to argue on rashi and understands that the assumption she saw is a va'dai, not a safeik.

The gemara on 15b says that when a woman has a veset, her husband can calculate the days of her veset and assume she went to the mikvah when enough time has passed. The gemara refers to the reason that he can be so lenient is because it is only a safeik whether she saw. According to rashi this fits even with the opinion who says that vestos are d'oraysa but according to tosafos it only fits with the opinion that vestos are d'rabonon.

The gemara says קשין גרים לישראל כספחת. Rashi and Tosafos offer various explanations. Rashi suggests that since they aren't experts in doing mitzvos it will result either in punishment or negatively influencing others. Rashi then cites that some say it is because all jews are responsible for one another - כל ישראל ערבים זה בזה, therefore we suffer for their lack of performance. Rashi rejects this approach because he writes that Geirim were never included in arvus and proves this from a gemara in Sota 37b. Tosafos rejects the proof because it may simply be that we didn't know the number so it couldn't be delineated, but cites the mechilta that does suggest a number. 

Rashi in Rosh Hashana 29a explains that the source for one being motzi others in mitzvos that he has already performed is this concept of כל ישראל ערבים זה בזה. Therefore it should follow that geirim who aren't included in arvus cannot be shleluchei tzibur to be motzi others in mitzvos that they themselves are fulfilling. For example, a ger who already hears shofar or made kiddush can't blow or make kiddush for others. The Pri Megadim (eishel avrohom 53:19 at first says that a ger cannot be motzi others based on this rashi, but backs off based on the shulchan aruch that a ger can be a shliach tzibbur.

Perhaps there is a difference between the concept of responsibility for one another, and liability for failing to do for others. The concept of אע"פ שיצא מוציא - being motzi others, is based on the responsibility that all Jews have for one another, even geirim. Since they are part of klal yisroel, anytime another Jew is deficient in a mitzvah, it is as if they themselves are deficient. However, it is possible that Rashi holds that we wouldn't punish geirim for aveiros of others. Responsibility for aveiros committed by others comes from failing to rebuke and influence, which may not apply to geirim since their influence on משפחתות מיוחסות בישראל is limited.

The Shulchan Aruch (190:1) cites the Terumas HaDeshen that if a woman were to have a hargasha (a sensations that would indicate bleeding - see pischei teshuva for 3 types), she must assume that she bled even though she didn't notice any blood. The rationale is that the Hargasha itself is evidence that there was actual bleeding.

Rav Zeira asks whether a woman who is not involved in taharos should examine herself prior to relations before being with her husband. R. Abba asks whether she should examine herself after having relations to figure out whether they need to bring a korban. The gemara responds to both questions by saying that she shouldn't examine herself because if she would, he would be hesitant to have relations with her. Rashi (d.h. im kein) seems to interpret the gemara to be questioning whether chazal impose such an examination on her. According to this approach the response of the gemara is that by Chazal imposing a requirement to do a bedika, they are indicating that there is a concern that she will bleed, this will cause him to abstain from having relations with her. However, if she were to decide to do a bedika on her own, we wouldn't stop her. Tosafos on the other hand seems to indicate that by her doing a bedika, even as a chumra, would indicate that she must have had a hargasha and cause him to abstain from relations with her. Why would he abstain from relations? Let her do a bedika and if it's clean it would indicate that she is not a Nidah. It seems that Tosafos supports the opinion of the Terumas HaDeshen and if she were to have a hargasha, even if followed by a clean bedika, she would be considered tamei. Therefore we are afraid that he will abstain from relations even if the bedika is clean out of fear that she had a hargasha.

Rav says that to receive malkus for eating sheratzim, one must eat a kezayis. Since the Torah uses the term "achila" it follows the rule of all issurim that malkus requires a kezayis. The gemara challenges this from a braisa that compares the issur achila to tu'mah which is b'kadasha (lentil), and concludes that when one eats a live sheretz the shiur is kezayis, but a dead one on which there is tu'mah for the size of a lentil, one would also receive malkus for consuming the size of a lentil. This distinction is paskened in the Rambam, but not explicitly paskened in shulchan aruch since even a chatzi shiur is forbidden, and the only application is for malkus.

In truth, this issue is paskened in shulchan aruch and even has a practical application. In Y.D. 104:1, the Shulchan Aruch discusses עכברא בשכרא, a rodent that falls into beer. The Shulchan Aruch writes that even if there is 60x to be mevatel the rodent, if there are pieces of it in the food that it fell into so that it can be felt upon chewing, although it is unable to be separated out, it makes the entire food forbidden. There is a big dispute between the Taz and Shach as to the rationale for this prohibition. The Taz understands this to be a rule with all non-kosher items that fall into a food from which they cannot be separated but are distinguishable when eating it, that they aren't batul. It wouldn't matter how small the pieces are, they wouldn't be batul (the Taz continues to qualify this  - we are only concerned if there is a possibility that one will be eating the issur standing alone without the mixture of the kosher food). However, the Shach understands that this is an issue specific to one of the 8 sheratzim that the Torah forbids. The nature of this halacha is that since the shiur for malkus is k'adasha, the size of a lentil, we are extra strict about allowing it to be eaten through bitul. Since there is malkus for the size of a lentil we treat it like a בריה and don't allow it to be batul. Therefore, according to the shach if the pieces were smaller than the size of a lentil, or by other issurim even if the pieces were larger than a lentil, it would be batul and permissible.

This issue may really be a machlokes between rashi and the Ran. Rashi explained that the stringency of the sheretz has something to do with the shiur of malkus being the size of a lentil, but the Ran asks what do we need that for, just say it is because of חצי שיעור אסור מן התורה. The Shach explained that by other issurim we wouldn't be machmir since they are nosein ta'am l'fgam and the actual issur is batul, it is only for a sheretz where the shiur is k'adasha that we are machmir. The Mateh Yehonassan suggests that chatzi shiur that falls into a mixture no longer retains it's status of issur, unless one could consume a kezayis within an achilas p'ras. Therefore, issurim for which one can eat a shiur is not going to be batul even if there is less that a kezayis in an achilas pras. That is why we are machmir for a sheretz because even if there is less than a kezayis in achilas pras, it would still retain its status of issur so long as one can eat a lentil size of it within an achilas p'ras (it would be like any other issur in which there was a kezayis in an achilas pras).

I previously posted about this topic HERE and explained the position of Rav Moshe who assumes it is the size of a pinkie finger making the diameter to be about 7mm (and maybe even 1cm which is 10mm).

Rav Moshe says that aside from the Mishna in Ohalos which gives an unfamiliar shiur and assumes that it would be larger than the size of one's pinkie. However, in our gemara it discusses a woman who miscarries a 40 day old fetus as a dry birth which doesn't render her tamei. The gemara asks that the opening of the uterus should definitely cause some blood, to which the gemara concludes that it must be אפשר לפתיחת הקבר בלא דם. This would be the source of the Rambam to reject the entire notion of אי אפשר לפתיחת הקבר בלא דם, because the gemara would clearly be saying that it is possible. However, the gilyon hashas quotes an alternate girsa from the Rashba. The gemara thought that even the opening of the uterus caused by a 40 day old fetus should be considered an opening of the uterus for the purpose of assuming there will definitely be blood, to which the gemara responds that since the fetus at 40 days is so small, it won't cause bleeding. The girsa of the Rashba actually states clearly that the size of the fetus at 40 days is exactly the shiur for this assumption of אי אפשר לפתיחת הקבר בלא דם. According to ultrasound measurements that we are privy to nowadays and scientific estimations, a fetus that is between 5 and 6 weeks from conception will be between 2mm and 4mm in size. Therefore it should follow that any time a physician inserts an instrument with a diameter larger that 4mm into the uterus we would have to say אי אפשר לפתיחת הקבר בלא דם and render her tamei. This is a big chumra because it reduces the shiur of R. Moshe by half and seems much clearer that trying to estimate the shiur referenced in the mishna in ohalos.

The Mishna says that an animal that nurses from a treifa mother is forbidden to be used as a korban. The gemara qualifies that it cannot mean that animal that gained a few pounds by eating non-kosher food becomes assur. The gemara explains that we are speaking about an animal that nurses daily from a treifa animal an amount that is sufficient to sustain it entirely, therefore even if the animal eats other things, it is forbidden to be brought as a korban.

The Mishna implies that an animal sustained primarily from issur food is forbidden as a korban, but permitted to be shechted and eaten. However, Tosafos writes - ולפום ריהטא אפילו להדיוט, meaning that it seems it would be forbidden even for a regular person to eat. The Rama in Shulchan Aruch (Y.D. 60:1) follows Tosafos and writes an animal that ate non-kosher is permitted, but אם לא נתפטמה כל ימיה רק בדברים אסורים אסורה - if it only ate issur it's entire life, it becomes forbidden. The Pischei Teshuva cites the Levushei Sered who suggests that this is a fixable problem. If one were to feed the animal kosher foods for a few days, it would lose it's status as an animal that was raised it's entire life on non-kosher foods.

The difficulty with both Tosafos and the Rama is that the mishna implies that this is a problems specifically for korbanos. If this were an issue with even chulin animals forbidding them to be eaten, why would this halacha be said in the context of korbanos? The Gr"a deals with this question and suggests that the Mishna and Gemara are speaking about an animal that primarily is sustained by forbidden food (such as milk from a treifa) but throughout the course of the day will also eat other things. In that circumstance it is forbidden for a korban since the non-kosher milk is sufficient to sustain the animal without any other food, but is not forbidden to be eaten. The Rama is speaking about an animal that ONLY ate non-kosher foods and then becomes forbidden even for a regular person so shecht ant eat it. According to the Gr"a it would seem that that one can certainly do as the Levushei Sered suggests, to feed the animal kosher food for a couple of days and then shecht it to eat.

Rava says that if one were to commit bestiality with an pregnant animal, the fetus will also assume a status of "nirva" and be forbidden to be brought as a korban because היא וולדה נרבעו. The gemara explains that this issue is dependent on the notion that the child is a "limb" of the mother - עובר ירך אמו הוא, therefore anything done to the mother is as if it were done to it's child. Based on the same rationale, if a pregnant animal kills, the fetus is also considered a "no'geiach" and killed. Since the fetus is part of the mother it is as if it participated in the actions of the mother. 

R. Akiva Eiger (Kesavim 172) asks a very strange question. Based on the rationale of the gemara that היא וולדה נרבעו, it should be forbidden for one to have relations with their pregnant wife since it is tantamount to having relations with their own child? R. Akiva Eiger offers a technical answer. Since chazal don't consider it to be an act of relations when a girl is less than 3, it wouldn't be a torah violation. Although it would normally be a Rabbinic violation to have relations even with a girl less than 3, the violation is based on wasting seed which obviously doesn't apply when he is having relations with his pregnant wife. In short, R. Akiva Eiger considers having relations with one's wife while pregnant to be having relations with the fetus itself.

The Yachin Bo'az says that R. Akiva Eiger's entire approach doesn't make sense. If we truly consider every act done to the mother as if it were done to the child, there should be a violation to shecht the mother since it is as if he were shechting the mother and child on the same day. The Tiferes Yisroel (Boaz) explains that the answer lies in the gemara's assumption that עובר ירך אמו. Since the fetus is considered part of the mother it is not considered to be having relations with the fetus, just with the mother. The concept of היא וולדה נרבעו doesn't mean that it is as if he committed the aveira with both the mother and the child, but rather since the child was part of the mother at the time of the aveira, it assumes whatever status the mother has. The concept of עובר ירך אמו הוא doesn't make it as if he were having relations with the fetus, rather it makes that the relations he had with the mother causing it to assume a status of a נרבע would also apply to the fetus. In a situation where there is no status placed on the mother, there is no effect at all on the child. According to this approach the phrase היא וולדה נרבעו isn't to be taken literally, it is merely an expression meant to convey that the status of the mother will apply to the child as well.

The gemara says that 3000 halachos were forgotten when Moshe died. The people asked Yehoshua to retrieve the lost halachos from Hashem to which he responded לא בשמים הי. Generations later they asked Shmuel to retrieve it, to which he responded אלה המצות - שאין נביא רשאי לחדש דבר מעתה. Both responses seem to be similar, the only Navi who is able to transmit Torah from Hashem is Moshe. Once it was transmitted by Moshe, it was not simply shared with the Jewish people, but literally given to the Jewish people so that all decisions had to take place following a halachic system. The only way to retrieve lost halachos is to do as Asniel Ben Kenaz did, to use principles available and analysis (piplul) to retrieve the lost information. Even when machlokes develops, the only way to decide who is correct is using the system of אחרי רבים להטות as the gemara says was done after Moshe died - אם רבו מטמאין טמאו, אם רבו טהורין טיהרו (although rashi explains that the machlokes about semicha was the first machlokes ever to exist, that means it was the first machlokes where they couldn't reach an agreement by voting, but surely there was machlokes much earlier - the gemara in Sanhedrin (2nd perek) suggests that Shaul and Dovid had a halachic debate about המקדש במלוה).

It is unclear from the gemara why when Yehoshua was asked to retrieve the halachos his response was לא בשמים היא, whereas Shmuel responds אלה המצות - שאין נביא רשאי לחדש דבר מעתה, since they are essentially the same point. The Maharsha asks this question as suggests that for Yehoshua it may not have been a violation of אלה המצות since he had heard these halachos from Moshe himself, just that he forgot them. He needed to be reminded of them, but didn't need to learn them from scratch. Therefore, it wouldn't be a violation of introducing something new, nevertheless couldn't be done due to the limitation of לא בשמים היא.

The gemara in Megilla 3a says that the "tzofim", meaning the nevi'im, introduced the מנצפ"ך, meaning all the letters that have a different font when they appear at the end of a word. The gemara asks how could the nevi'im have introduced something so fundamental, it is a violation of אלה המצות - שאין נביא רשאי לחדש דבר מעתה. The gemara answers - שכחום וחזרו ויסדום. Originally, they were given by Moshe, but they were lost and the nevi'im were used to retrieve the lost halachos. This clearly implies that even when Nevi'im restore lost halachos that they have never heard before, it isn't a violation to אלה המצות. Why does our gemara consider the restoring of forgotten halachos to be a violation of אלה המצות?

It seems that the answer lies within the words of Rabbeinu Chananel in Megillah who writes:

ואקשינן ואלה המצות שאין נביא רשאי לחדש דבר מעתה, ופרקינן לעולם מתוקנים היו, וכן היה מסורת בידם מהנביאים להיות הפתוחים באמצע תיבה והסתומים בסוף תיבה, ושכחום וחזרו הצופים ויסדום

Rabbeinu Channanel seems to explain that they had a mesorah from the nevi'im about these letters and exactly where they should be placed, the function of the nevi'im who restored them was only to remind people of the mesorah. It seems from here that once it has entered the chain of mesorah, it can be restored by nevi'im, but when taught by Moshe and immediately forgotten, since it never entered the realm of מסרן ליהושע ויהושע לזקנים וזקנים מסרוה וכו, it can't be restored by nevi'im.