Thursday, June 12, 2008

Sotah 19a - Touching for the Tenufa

The mishna and gemara imply that the kohen and woman touch each others hands while waving the korban mincha. Tosafos quotes from the Yerushalmi "ואין הדבר כיעור"? At first the yerushalmi tries to suggest using a cloth to seperate from direct physical contact, but then says that it would be a chatzitza problem, so the yerushalmi concludes: ואפילו תימא כהן ילד, שאין יצר הרע מצויה לשעה. The Yerushalmi seems to imply that this type of touching even by an erva such as an eishes ish would not be d'oraysa. If this type of touching would be d'oraysa it would seem odd for the yerushalmi to suggest that it was done by an elderly kohen - would we make such distinctions between a young and older kohen if it were d'oraysa!
This would support the approach of the Shach. There is a Machlokes Rambam and Ramban whether touching including chibuk v'nishuk would be an issur d'oraysa. The Rambam holds that it is d'oraysa (Shulchan Aruch even haezer 20) paskens like the Rambam. But the Ramban holds that it is only d'rabonon. There is a machlokes between the Shach (y.d. 195:20) and the Beis Shmuel (E.H. 20:1) whether the Rambam holds it to be an issur d'oraysa only when it is derech chibas biah, meaning an intimate type of touch (Shach) or even a casual touch (Beis Shmuel). Based on the Shach's understanding that all would agree that if it is merely a casual touch it would only be assur m'drabonon, he permits jewish male doctors to treat female patients even if she is a nida or eishes ish, since it is an issur d'rabonon b'makom choleh. The Yerushalmi seems to support the approach of the shach, that it is only an issur d'rabonon, therefore the yerushalmi only questions this from a "ki'ur" perspective, rather than asking that it is an issur.
However, even the Shach should only allow touching for the sake of a choleh {this itself seems to be a machlokes whether we are matir all isurei d'rabonon for a choleh sh'ein bo sakana. The Mishna l'melech (yesodei hatorah 5:6) quotes a radvaz that we are matir all isurei d'rabonon just as we are matir bishul akum, but the mishneh l'melech himself quotes a teshuvos harashaba who disagrees}. But, how can a doctor touch an eishes is for a routine checkup where the patient would not have a status of choleh at all? Perhaps we can prove from the yerushalmi that to remove an issur d'rabonon of touching a "mapeh" would be sufficient. Therefore, if the doctor were to wear gloves which is somewhat routine, it would be mutar.

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