Thursday, June 28, 2007

Yevamos 57b - Chupah for Pesulos i.e. Chupas Nidah

Rashi says that the gemara is discussing chupah without kiddushin. Tosafos understands that Rashi learn the sugya that chupah works as kiddushin, the argument between rav and shmuel is whether chupah works by woman who is pasul from having biah with. Rav holds that chupah accomplished kiddushin and pasuls her (even acc. to r' elazar and r' shimon) since chupah by definition is closer to biah. Shmuel holds that chupah is never binding on a women who is forbidden to have biah with. The Ritvah understands in Rashi that the entire sugya assumes that chupah is not koneh, and both Rav and Shmuel agree that there is no binding cha'los from this chupah. Nevertheless, Rav holds that since she made herself available for bi'ah with someone who is pasul to her, we penalize her by pasuling her to terumah.
Tosafos understands that the gemara is speaking when there was kiddushin done in advance. Although everyone agrees that if she is widowed after kiddushin to someone who was pasul to her, she is not pasuled; and all agree that if she is widowed after bi'ah to a pasul she is a chalala and pasul; the machlokes is when she was widowed after kiddushin and chupa (but no bi'ah) to a pasul.
According to the first and third explanation, Rav and Shmuel argue whether chupah (even after kiddushin) would be binding to pesulos. According to the second peshat, there is no indication one way or the other whether chupah after kiddushin would be binding to pesulos. This is very applicable to a chupas nidah, since she is pasul to him at the time of chupah. Based on the first and third peshat, it is a machlokes Rav and Shmuel whether chupah would be binding on a nidah. Nimukei Yosef comments that we hold like Rav, chupas nidah is binding, to the exclusion of the Rambam's opinion (see Even Haezer siman 61:1). Some suggest that even those who consider chupas nidah valid, that is only if she will later become fit for bi'ah like a nidah, but a pesulah who won't be fit for bi'ah later, chupah would not be binding. Pischei Teshuva (E.H. 61:7) quoting Sha'ar Hamelech proves from the Nimukei Yosef who equates all pesulos with nidah, it is clear that even if she will not necessarily be fit later, chupah is binding on pesulos.

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