Nida 39a - Establishing a Veset In Days of Nida and Ziva

The gemara says that one cannot establish a veset during the days of being a Nida, but according to R. Yochanan and Reish Lakish she can establish a veset during days of zivah. However, Tosafos (d.h. Rav Huna) explains that according to Rav Huna Bar Chiya in the name of Shmuel a woman cannot even establish a veset during days that she can potentially become a zavah. Therefore, a woman can never establish a veset that is shorter than 18 days since the 11 days after the 7 days of Nida are days that she can potentially become a zavah. But, Tosafos says that we pasken like Rav Yochanan against Shmuel, therefore the only time she can't establish a veset is during the days of actual Nidah, but can establish a veset during days of actual zivah (and certainly during days of potential ziva). The only exception to when she can establish a veset even during the actual days of Nida is at the very end of the perek - if 2 of the 3 times she saw blood it was not during days of nidah or zivah, but the third time it was during the days of nidah (and certainly if it was in the days of zivah), she would establish a veset since we consider the initial bleeding on the third time to be "extra blood". 

The Shulchan Aruch doesn't discuss the issue of establishing vestos during days of Nidah and Zivah. However, the Nekudas HaKesef (189 around si'if 19) writes that the poskim (rashba and tur) rule that a woman cannot establish a veset during days that she is fit to be a zavah, therefore a woman can never establish a veset for a haflaga that is 18 days or less. The Nekudas HaKesef explains that although the Shulchan Aruch omits this din because we are machmir not to differentiate between nidah and zivah, that is only to be machmir. The Nekudas HaKesef takes a very strong stance that if a woman would establish a veset for 17 days, she must be machmir for the veset, but cannot be lenient to avoid being concerned for the standard vestos that a woman who doesn't have an established veset would need to be concerned about. The Torah HaShlamim earlier in the siman (27) argues on the Nekudas HaKesef and writes that since vestos are d'rabonon we can be lenient to not be concerned at all for a veset that is shorter than 18 days. Since the entire minhag of not keeping track to differentiate between days of Nida and Ziva is because it is too confusing, even for vestos it is not necessary to keep track and one can always assume that a woman would establish a veset even during days of zivah, even if it results in leniency. The logic of the Toras HaShlamim is difficult. How can one adapt a minhag to treat every nida like a zava when it will result in a leniency for vestos because we will ignore the problem of establishing a veset during days of zivah? Perhaps we can combine the opinion of Tosafos that we pasken like Rav Yochanan against Shmuel and one can establish a veset during days that are fit to become a zava and it would be treated like a regular veset.

Nidah 38a - Chassidim HaRishonim

The Chassidim HaRishonim were careful to calculate their marital relations to ensure that the birth wouldn't be on shabbos. Clearly this was not a requirement, just a minhag tov. The Maharatz Chiyus points out that this would only make sense within the framework of the Ba'al HaMeor but not the Ramban. There is a machlokes between the ba'al ha'meor and the ramban whether one can do a bris on shabbos knowing that after the bris the pikuach nefesh of the child will cause them to do a chilul shabbos such as heating water to help heal the wound. The Ba'al HaMeor says that one cannot do a bris knowing in advance that it will create a situation of pikuach nefesh and cause shabbos to be pushed off. Simply put, shabbos is dechuya for pikuach nefesh, not hutra. Whereas the Ramban holds that since at the time one will need to heat the water and violate shabbos, it will be a pikuach nefesh situation, there is no need to try to avoid it. The Ramban seems to hold that pikuach nefesh is hutra, not dechuya, so there is no reason to try and avoid it. The Maharatz Chiyus points out that within the framework of the Ramban it would make no sense to take measures to try and avoid a shabbos birth, it only makes sense to even have such a chumra within the framework of the ba'al ha'meor.

The Maharsha (chidushei agados) explains that the chassidim harishonim described in our gemara were really trying to avoid the double chilul shabbos. If the baby is born on shabbos then the bris will be a week later on shabbos, causing chilul shabbos twice in a row. They were trying to avoid chilul shabbos two weeks in a row. The Maharsha clearly assumes that the status of Mila on shabbos is tantamount to pikuach nefesh pushing off shabbos. It is something which must be done, but better to avoid. However, the Gr"a (Biurei HaGra end of Hilchos Mila) writes that avoda in the beis hamikdash on shabbos is hutra, pikuach nefesh is dechuya, and struggles with where milah should fall. He concludes that it is similar to avoda and is hutra on shabbos, not just dechuya.

Nidah 34a - Kol Yisroel Chaveirim

The Gemara says that during Yom Tov the gezeirah on the clothing of am ha'aretz being tamei didn't apply (therefore the gezeira of kusim being bo'alei niddos was necessary). The reason it didn't apply is because in the pasuk by pilegesh b'givah it says ויאסוף כל איש ישראל אל העיר כאיש אחד חברים, and we darshen that during a time of gathering we regard everyone as a chaver, not an am ha'aretz. Since Yom Tov is a time of gathering, everyone is elevated to a status of chaver.

The Maharatz Chiyus points out that a similar drasha appears twice in yerushalmi, once in baba kama and once in chagiga. Both darshen the pasuk of כעיר שחוברה לה יחדיו, meaning that Yerushalayim is a city that brings unity. In Baba Kama the drasha is - עיר שמחברת ישראל זה לזה, a city that attaches Jews one to the other. But in Chagiga it says - שהכל נעשו חברים בשעת הרגל, everyone is considered a chaver on Yom Tov. In baba kama the focus is on achdus - unity, whereas in chagiga the focus is on yom tov. The Maharatz Chiyus has a beautiful explanation based on the Rambam in Moreh Nevuchim (43:3). The Rambam explains that the purpose of Yom Tov is to create achdus among the Jewish people - 

אבל ימים טובים המה כולם לשמחה ולקבוץ שיש בהם הנאה שבני אדם צריכים עליהם, ויש מהם תועלת בענין האהבה וכו' והתאהב בני אדם וחברתם קצתם לקצתם

One of the main causes of division between Jews is their not relying on each other for kashrus and therefore being unable to eat at each other's homes. This division was even greater in the times of the Talmud when there were classes created based on one's willingness to accept certain rules of tu'mah and ta'hara. The animosity that existed between Talmidei Chachamim and Amei Ha'aretz as apparent from R. Akiva's statement in Pesachim 48b [when i was an am ha'aretz i wanted to bite talmidei chachamim like a donkey that breaks bones in its bite], is exacerbated by their inability to dine together. Being that the purpose of Aliya L'regel specifically, and Yom Tov in general was to create unity between people, Chazal felt that it was necessary to break down the barriers of division and allow the talmidei chachamim to eat together with the amei ha'aretz. Therefore, the concept of Yerushalayim being a city that brings unity, and the fact that this occurs on the regel is understandable. To allow aliya l'regel to fulfill its function, chazal broke down the barriers that divide the classes.

The Meshech Chochma in Parshas Emor (23:21) elaborates on the same idea. He explains that some mitzvos are meant to create a connection between Jews and Hashem, others are there to establish a connection within the Jewish community. That is why we permit אוכל נפש type activity on Yom Tov, since the whole purpose of Yom Tov is to allow people to eat in each other's homes and join together. With this he conceptualizes the halachic concept of one who bakes much more bread than they need for Yom Tov on Yom Tov is not violating a Torah prohibition - הואיל וחזי לאורחים, since it is fit for guests. The entire concept of permitting cooking and baking on Y.T. is to enable guests to visit.

Nidah 32a - B'nos Kusim are Nida From Birth

The Mishna says that chazal made a gezeira to consider all kusim to be nidas from the moment they are born.  The gemara explains that the Mishna follows the opinion of Rav Meir who is concerned for the minority against the majority, which requires us to be concerned that they are all part of the mi'ut who menstruate at a very young age. Tosafos assumes that R. Meir's opinion of being concerned for the mi'ut is a d'oraysa concern, therefore questions why this is listed in the among the 18 ge'zeiros in maseches shabbos, which are all d'rabonon. In truth, it isn't so obvious that R. Meir's concern for mi'ut is d'oraysa, Tosafos in Chulin 12a writes that R. Meir's entire concern for the mi'ut to ignore the rov and consider it a safeik is only d'rabonon - דנראה דמדאורייתא לא חייש רבי מאיר למיעוטא אלא מדרבנן. But in truth, even if we assume it is only d'rabonon, it doesn't belong as one of the 18 d'rabonon ge'zeiros since it is a general rule of being concerned for the mi'ut whereas all the 18 gezeiros are specific.

Tosafos explains albeit, not so clearly, that there are 3 levels within R. Meir. In the gemara itself it clearly differentiates between a "mi'ut that is common" to which R. Meir is concerned, and an "uncommon mi'ut" to which even R. Meir pays no attention and follows the majority (in other places this is referred to as a מיעוטא דמיעוטא). However, Tosafos says that even within the "common mi'ut" that R. Meir is concerned about, doesn't apply to a girl at birth because at that age it is certainly a very uncommon mi'ut. However, since at some young age there would be a "common mi'ut" that R. Meir would be concerned for on a Torah level, we make a gezeira to include all girls of kusim to be considered a Nida from birth. Therefore, the concern for mi'ut is indeed d'oraysa according to R. Meir (or according to Tosafos in chulin a general d'rabonon), but to consider her a Nida from birth is only d'rabonon.

Tosafos explains that the gemara feels compelled based on the language of the Mishna to say that it is in accordance with R. Meir, not the Rabbonon. However, the actual din in the Mishna to treat kusi girls as Nidos from birth, even the Rabbonon would agree to based on entire separate line of reasoning. The Rabbonon hold that there was a gezeira made against kusim to prevent them from assimilating and mingling among regular Jews. Even if we consider them to be Jewish, the Rabbonon recognized that there had to be artificially imposed lines drawn to separate them from the regular Jewish community, because there was a fear that they would have an influence on the committed Jews. Non-Jews who were clearly not Jewish weren't a risk to the traditional Jews, but since Kusim were performing some mitzvos, there was a tendency to let your guard down and be more accepting of them. Chazal considered this to be a major threat and therefore imposed on the kusim a stricter status than they imposed on goyim.

Nidah 31a - Women Learning Torah in Utero

The gemara 30b cites a braisa that says that a child is taught כל התורה כולה while in utero and is made to forget it right before he leaves. It isn't clear whether this is only for a male child or even for a female (since she isn't obligated in talmud torah, it is possible that she wouldn't need to be taught it). The Taz writes in Hilchos Mila that the reason we have a sholom zachor after the birth of a boy is to mourn the lost torah. Being that the minhag is not to have a sholom bas (or at least there is no minhag to have a sholom bas), it would imply that the Taz understands that the teaching of kol hatorah kula in utero, is limited to boys and not girls.

However, Rashi 31a clearly understands that the Braisa which speaks about the learning of the entire torah in utero applies to girls as well. Rashi (d.h. derech) is speaking about a girl who is assumed by the gemara to be facing up down inside the uterus and must turn around before birth (because the gemara understands that girls are born facing up), supports this notion from the braisa which says ראשו בין ברכיו, implying that a babies including girls inside the uterus are facing down. Rashi seems to understand that the braisa is not limited to boys, but applies to girls also. Based on this, the minhag to have a sholom zachor and not a sholom bas indicates that the source for this seudah must be for some other reason other than mourning over the torah as the Taz suggests.

Nidah 29b - Mental Loss of Count of 7 Clean Days

There is a well known p'sak attributed to the m'eil tzedaka that a woman must maintain count of her 7 clean days. The Sidrei Tahara offers two approaches to explain the Me'il Tzedaka, 1. we are concerned that she started to bleed without realizing. 2. Although we are confident that she didn't start to bleed, she must mentally maintain her 7 clean days as a count. Therefore, forfeiting her count, even mentally, disqualifies the entire count. Most Achronim including the Chochmas Adam understand that the second approach is the opinion of the Meil Tzedaka. However, from Rashi on 29b it seems that the main concern is the first approach. The gemara cites a braisa that discusses a woman who shows up in town not having any awareness of the halachos and not knowing where she stands in terms of when she may have miscarried and how to become clean. The gemara explains that during the second and third week she must immerse during the day because there is a concern that she is a zava who requires 7 clean days which could be ending any day in week 2 or 3. However, in week 1 she doesn't need to immerse during the day since there is no concern that she is completing her 7 clean days - the reason that the gemara says on 30a is - בעינן ספורים לפנינו. The 7 clean days must be counted in our presence. Rashi (d.h. eimar) explains:

אבל שבוע ראשון לא טבלה ביום, ואע"ג דבכל יום איכא לספוקי שמא הרחיקה לידתא והשתא כלין ימי הספירה, משום דבעינן שבעת ימי הנקיים לפנינו ודאין, והני דקודם לכן ספק הוו נקיים ספק לא הוו

If it were true that they only count as 7 clean days when she is attempting to count them, it is obvious why it wouldn't qualify at ספורים לפנינו. Why would rashi have to say that we are concerned that she started to bleed? From the fact that Rashi makes the concern that she may have bled without realizing it, it implies like the first approach of the me'il tzedaka.

For a more elaborate discussion of the meil tzedaka - see below:

הפ"ת (ס"ק ג') הביא בשם המעיל צדקה באשה שמצאה כתם בימי ליבונה ולערב הפסיקה בטהרה מחדש ואח"כ אמרו לה חברותיה שצריכה להמתין עוד ה' ימים קודם הפסקת טהרה, ורק אחר ב' ימים נודע לה שטעו חברותיה ושבאמת א"צ להמתין ה' ימים, ופסק דמאחר שהחזיקה עצמה בטמאה אין לה לספור אותן הימים שעברו ולא הביא טעם הדבר. כד נעיין בס"ט (ס"ק י"ח) תמצא שמביא דברי המ"צ באריכות יותר וכתב שיש ב' טעמים בדבר. א. דכל שלא כוונה לאותן ימים שיעלו לז' נקיים לא עלו לה. ב. כשלא נתנה דעתה שיהיו הימים נקיים מדם חיישינן דלמא ראתה ולאו אדעתא כיון דלא רמיא עלה לידע. הס"ט הסכים לסברא שניה של המ"צ, וגם האריך להאלים הסברא ראשונה דבעינן כוונה ודעת למנות ז' נקיים ואל"ה אין כאן ספירה ואין עולין לה. כבר הבאתי לעיל שהס"ט הביא ראיה מבדיקה ביום ח' שאינו מועיל וס"ל שהטעם משום כוונתה, שכוונה ליום א' עד יום ז' ולא ליום ב' עד יום ח'. ודחאו השמלה שאין הטעם משום כוונה כלל אלא הטעם משום שהרחיקה בדיקתה מההפסק טהרה כ"כ ששוב אין מצטרפין בהדי הדדי. אחר כל הפלפול של הס"ט מסיק דבאמת למ"ד דלא בעינן ספורים לפנינו [והיינו רב דסגי בבדיקה אחת כל ז' כדמוכח בש"ס נדה סט ע"א] לא בעינן ספירה כלל, אבל למ"ד דבעינן ספורים לפנינו [כדעת הסמ"ג וסמ"ק שפסקו כר"ח בגמ' דבעינן לכל הפחות א' וז'] ודאי בעינן דעתה וכוונתה לספירה. לכן העלה הס"ט וז"ל א"ו דמאן דמצריך תחילתן וסופן טעמיה משום דבעינן ספורים לפנינו וכיון שכן הא המחבר פסק דאין להקל בלא בדיקת ראשון ושביעי כהפוסקים דפסקו כרבי חנינא, מעתה ודאי הדין דין אמת כמו שפסק בספר שו"ת מ"צ כיון דבדעתה היה שלא לספור הימים ראשונים לנקיים שוב אינן עולין עכ"ל. וכן בחכ"א (כלל קי"ז סי"ב) הסכים לסברת המ"צ וכתב וז"ל ודוקא שעכ"פ לא הסיחה דעתה מלמנות אלא שלא בדקה, אבל אם פסקה בטהרה או בשאר ימים הנקיים הסיחה דעתה מלמנות לנקיים כגון שסברא שבעלה נוסע למקום אחר ולא תצטרך לטבול כעת, או שמצאה כתם בימי ספירתה ופסקה בטהרה ואמרו לה חברותיה וכו' בכל זה כיון שהסיחה דעתה מלמנות אינם עולין לה וצריכה פסיקת טהרה מחדש עכ"ל. הרי סובר החכ"א דלא רק כשסברה שהיא טמאה דאין הימים עולים לה, אלא אף כשרק הסיחה דעתה מפני שבעלה נוסע ולא תטבול בסוף הז' נקיים נמי אין הימים עולין לז' נקיים. אמנם בד"ת (ס"ק כ"ז) מביא הרבה אחרונים [מהרש"ם עונג יו"ט בית שלמה] שמקילים באשה שלא חשבה שהיא טמאה רק שהסיחה דעתה מפני שבעלה בדרך וכיוצ"ב ולא כוונה שיעלו לה הימים, שיש להקל. שוב עיינתי בשו"ת עונג יו"ט (יו"ד ס' פ"ג) והביא שם ב' ראיות נגד המ"צ. חדא מהגמ' נדה כ ע"ב גבי רב שטימא בלילה וביום חזר וטיהר ולא שאלה שמא היא עומדת תוך ז' נקיים וכשפסק בלילה שטמאה הסיחה דעתה מספירתה, א"ו דלא אזדא הימים ע"י היסח הדעת. עוד הביא ראיה ממשנה יג ע"ב בשוטה שפקחות מתקנות אותה, ואי בעינן דעתה על ספירתה כמש"כ המ"צ היכי מתקנות אותה. שוב דחה דאולי דעת חברתה עולה לה כאילו כוונה. מ"מ מוכח שלא כטעם השני של המ"צ דאי באמת חיישינן להרגשה כשלא רמיא עלה ולאו אדעתה, ניחוש בשוטה להרגשה א"ו לא חיישינן לזה. והעלה העונג יו"ט להקל אא"כ לא היתה דעתה על ספירתה ביום א' וביום ז', משא"כ כשהסיחה דעתה תוך הז' נקיים אינו סותר הז' נקיים [ונראה בכוונת העונג יו"ט שכיון שלדידן דקיי"ל כר"א ואליבא דרבי חנינא דבעינן בדיקת א' וז' ולא בימים שבינתיים ע"כ הדין ספורים לפנינו הוא רק באותן הימים]. עוד הביא הד"ת בשם בית יצחק שאם לא הסיחה דעתה יום שלם שפיר מהני לז' נקיים אף לדעת המ"צ, שכל הענין של היסח הדעת שייך רק כשהוא יום שלם ששוב אין ז' ימים רצופים. העולה מדברינו שכדאי לכתחלה להחמיר לסברת המ"צ ולא תסיח דעתה מספירתה בינתיים אא"כ ברה כחמה שהיא טמאה.

Nidah 26a - Shiur of Shofar is a Tefach

The gemara lists 5 items that have a minimum shiur of a tefach. At the end of the sugya, the gemara explains that all of these items are כתיבן ולא מפרשי שיעורייהו, meaning they are d'oraysa, but the Torah itself doesn't tell us their shiur. It isn't clear from the gemara whether the intention is that the torah doesn't have a shiur, and the entire shiur is only rabbinic, or whether the Rabbonon are needed to tell us what the shiur d'oraysa is. Rashi explains that the beam of a mavoy doesn't make it into the list because it is only rabbinic - דכל מצותו מדברי סופרים. From Rashi one can deduce that for the 5 that are listed, they are all Torah mitzvos, but their shiur may only be Rabbinic. However, the simpler understanding is that the Torah doesn't clearly teach the shiur, but the shiur is considered to be a d'oraysa shiur.

The shiur given for shofar is כדי שיאחזנו בידו ויראה לכאן ולכאן טפח. The difficulty is that if the shiur were to make the shofar visible when held by one's hand, it is not really a shiur of a tefach, rather a method of making it visible. And if the shiur were truly a tefach, why do we need a reason given for the shiur being a tefach? If the shiur was only m'drabonon then we can accept the shiur not really being a tefach, rather making sure the shofar was visible so it didn't look like one was blowing in their hand. The Rosh in Maseches Rosh HaShana (3:6) writes explicitly that the reason for the shiur being that it must extend out of one's hand is כדי שלא יאמרו לתוך ידו הוא תוקע. From the Rosh it would seem that the entire shiur of tefach was only d'rabonon. Minchas Chinuch (end of mitzvah 405) cites Pri Megadim who says explicitly that the shiur is only d'rabonon and that min ha'torah there is no shiur at all. The Minchas Chinch disagrees by citing Tosafos in Succah 7b who indicates that the shiurim of tefach are min ha'torah, not merely rabbinic. The Biur Halacha suggest that even according to the Rosh who implies that the shiur of tefach is only rabbinic, doesn't undermine the concept of shiur d'oraysa. It could be that on a torah level the shiur is that it be large enough to blow through, then the rabbonon institute the shiur of a tefach.

The Tosafei HaRosh on our gemara writes that really the shiur of holding it and being visible on both sides is equal to a tefach, but the braisa wants to teach the reason for this shiur - ונקטינן בהאי לישנא כדי לפרש הטעם. It seems from the Rosh as he writes in Rosh Hashana that the shiur of being visible is to prevent the appearance that he is blowing into his hand. It is not clear whether this would be subjective. Meaning, one who has very large hands and is blowing shofar should perhaps require a larger shofar.
Tosafos questions why we don't mention the shiur tefach that we find in chulin in the context of treifos. Tosafos writes that according to the conclusion of the gemara that we are only speaking about things which are Rabbinic, only shiurim of things that are in the Torah when the shiur isn't explicit in the Torah. The Maharatz Chiyus point out that this is implies that shiurim by treifos are only d'rabonon. This contradicts the general assumption that they are d'oraysa from a halacha l'moshe mi'sinai.

Nida 23a - Formation of Mountains

The gemara asks that if a woman would discharge something in the shape of a mountain, it should qualify a birth to make her tamei since the term יוצר is used in the context of mountains as it is by humans. The gemara says that it isn't considered a "mountain" if it is discharged from a woman's body, it is merely a stone or clump of dirt. However, the yerushalmi answers that the Torah doesn't use the term יצירה on the initial creation of mountains, therefore it cannot be learned from a person.

Scientists consider mountains to have formed through the earths plates colliding into one another, causing them to both rise or one to end up on top of the other. The Maharatz Chiyus cites "stories of nature" that the original creation of the earth didn't contain mountains or valleys, it was a smooth ball. However, over time given various weather conditions and the mabul (flood), mountains and valleys formed. He explains that it is for this reason that we are able to find bones of animals and remnants of plant life at altitudes above where they can survive. They were originally living at lower altitudes and later rose up with the formation of mountains. This is somewhat consistent with scientific theory. According to this Hashem didn't "create" mountains during sheishes yimei b'reishis, rather they formed later. This is what the yerushalmi may mean by it not saying יצירה by the original creation of the mountains, because there was no original creation of the mountains. They were formed afterward over time by the nature that Hashem carved into the world, indirectly, so it wouldn't be accurate to use the term יצירה or בריאה to refer to mountains during the time Hashem created the earth.
This approach seems to be refuted by the Mishna in the 9th perek of Brachos that says that on mountains we make a blessing of עושה מעשה בראשית. Clearly, chazal consider mountains to have been created during the 6 days of creation, and not formed later.

Nida 21b - Blood Exiting Through a Shfoferes (tube)

The gemara questions whether blood that would exit the uterus through a tube would render her tamei. The gemara concludes that the pasuk of בבשרה is to the exclusion of a tube. Meaning, blood exiting a tube wouldn't render her tamei. The gemara makes a distinction between blood in a tube and blood in a piece of flesh, in that blood in a piece of flesh is normal, whereas through a tube is not normal.

It isn't clear from the gemara whether the issue of the blood exiting through a tube is a problem of chatzitzah, meaning that בבשרה would demand that the blood be in contact with her flesh when it exits her body, or whether it the problem is that the blood is being drawn out using the tube rather than flowing out naturally. According to the second approach, the fact that the blood isn't in contact with her body is irrelevant, since it flows out naturally it would render her tamei.

Rashi clearly writes that the issue is that of a chatzitza because rashi says that the advantage to a the piece of flesh is that מין במינו לא חייץ, implying that by a tube the issue is that it is a chatzitza. However, the Shulchan Aruch HaGraz (188:8,9) cites two opinions. He understands that the opinion of the Shulchan Aruch who says that blood in a piece of flesh that is cracked and therefore in contact with her body on the way out, would still not render her tamei, clearly implies that the issue is not one of chatzitza but rather any blood being forced out by a tube or by a piece of flesh, wouldn't render her tamei. According to this approach, a woman could not avoid being a nida by simply lining her cervix with some synthetic material. However, he quotes from Tosafos and the Rambam that it is an issue of chatzitzah. Based on that approach a woman can avoid becoming a Nida by lining her cervix so that the blood exits the uterus without contact to her body. Even if the blood flows out in its natural course and is not forced out, it would still not make her tamei.

Nidah 20b - Paskening for your wife

The gemara says that Yalta, who is famously known as the wife of Rav Nachman, showed her blood to rabba bar bar chana for a p'sak. Tosafos HaRosh points out that perhaps Rav Nachman either didn't know or was out of town. However, from the end of the story it sounds as if she ALWAYS showed it to Rabba Bar Bar Chana. It would seem from here that a husband is not allowed to pasken on the ma'aros of his wife. Tosafos rejects this possibility based on the mishna in negaim 2:5 which discusses other things a husband can't pasken for a wife, but makes no mention of this. Therefore, Rav Nachman was either not an expert in paskening on blood or perhaps he was concerned that he would be too machmir, or that she would be מתגנה on him.

The Chochmas Adam 109:6 paskens that although a husband may pasken on the ma'aros of his wife, he can't pasken on mikvah questions as he explains in Binas Adam 3 that when there is a chezkas issur the husband isn't allowed to pasken. She doesn't have a chezkas issur that she will continue bleeding forever so he may pasken on the ma'areh that the bleeding stopped, even on a hefsek tahara. But she does have a chezkas tu'mah until she goes to the mikva, so he can't pasken on chatzitza issues.

Nidah 20b - "Nature" - טבע

It is well known that the term טבע doesn't appear in tanach. The truth is that it hardly appears in chazal. The Ramban in Hilchos Deios definitely uses the term to mean nature in describing the nature of fire. Our gemara is one of the few places that we find the term being used in chazal - טבעא דבבל גרמא לי דלא חזאי דמא. The ya'avetz points out that the term was well used in his time by scientists to refer to nature, and the source seems to be from here where it refers to the biological nature of the babylonians. Perhaps the root of the word is based on the gemara in Sanhedrin 37b where it says that Hashem is different than a normal craftsman. When human being who טובע כמה מטבעות בחותם אחד - makes many coins with the same stamp, they will all look the same. However, Hashem uses the same stamp to be מטבע all man kind and everyone looks different. The term טבע really means the stamp of Hashem which he used to stamp the world and set it in motion allowing it to take its natural course.

Nida 18a - Is Rov a Statistic?

Rav Yochanan presents 3 cases where we follow rov against a chazaka (tosafos d.h. achar, and on amud 2 d.h. l'mutei point out that we are only including and excluding cases where there is a chazaka fighting the rov). The gemara questions why doesn't he list the famous case of 10 stores, 9 selling kosher and one selling treif where we follow rov. The gemara says that we are only looking for cases of tu'mah, not issur. However, the fact that the gemara even suggests this as an option forces Tosafos to write that there is a chazaka of all meat starting off as issur prior to being shechted, fighting against the rov that it is kosher.

There is a very interesting machlokes between the Binas Adam (sha'ar ha'kavua #16) and the Chavos Da'as (y.d. 119) whether we follow the majority of stores that sell kosher meat, or the majority of kosher meat. The Binas Adam holds strongly that we follow the majority of meat, therefore if the one treif store sells more meat that the 9 kosher, the meat would be treif. His rationale is very simple, we don't know whether the meat fell from a seller or a buyer. The only factor that would incorporate all buyers and sellers would be the amount of meat available for sale. He proves this point from a Mishna in Shekalim (7) that says that when we find money and don't know whether it is from shekalim or from donations, we assume it fell from whatever it is closer to. The Bartenura asks, how can we follow "karov", since the rule is that Rov trumps Karov? He answers that we are speaking in a case where the amount of money in the shekalim is equal to the amount of money in the donation boxes, so there is no "rov" to speak about. This doesn't seem to make sense because there are 6 donation boxes, and only one shekel box, so even if the money is equal, we still have a rov? From here we see that rov depends on the amount of money, not from the amount of places it could have come from and since the amount of money in the shekalim box equals all 6 donation boxes, there is no rov. Similarly, we should follow the amount of meat being sold in the city, not the amount of stores that it could have come from.

The Binas Adam cites the Chavos Da'as in 119 who brings the exact same proof from shekalim which seems to support his own position, but the Chavos Da'as 110 takes for granted that we follow the amount of stores, NOT the amount of meat being sold. The Chavos Da'as (110) proves that we should follow the amount of stores, not the quantity of meat from the case where one finds an object in a city where most inhabitants are Jews. Why must he assume it fell from a Jew? Goyim are richer than Jews and have more items than Jews so if we follow the majority of the items it would be assumed to belong to a goy, yet we assume it belongs to a Jew! From here we see that we follow the amount of sources that it could have come from when designing the rov. The Binas Adam rejects this proof for two reasons: 1. Even though goyim own more objects than Jews, they all walk the streets carrying the same amount of items in their pockets, therefore the only rov to follow is the rov of people in the city. 2. The issue by hashavas aveida is WHO it fell from, so we focus on jews vs. goyim, but the issue by the meat and coins is what it's status is, so we should focus on the quantity of that item.

The Binas Adam proves his point from Tosafos in our sugya who says that the chazaka on the meat goes against the rov that it is kosher. If the rov is on the stores then the chazaka on the meat doesn't in anyway impact the fact that most stores sell kosher meat. However, since the rov is on the meat that it comes from the majority of kosher meat in the city, it makes sense for the chazaka of the meat to be fighting the rov.

The Binas Adam concludes that when he had the opportunity to visit the Chavos Da'as in Lisa (in the hakdama of the chochmas adam he also mentions visiting in the year 5570 and the chavos da'as advised that he organize the chochmas adam according to the order of shulchan aruch, which he did) he presented his argument to him and the chavos da'as was silent. He understood this to mean that the chavos da'as consented to him that we follow the quantity of meat in the city, not the number of stores from which to purchase meat.
The Pischei Teshuva (y.d. 110:2) cites the Beis Ephraim who says that if the question is on a chicken or piece of meat bought by an individual, the question is really which store he went into so we follow the majority of stores, not the amount of meat. However, if all the meat was sold in all the stores, then we follow the majority of the quantity that was put out on the market. He cites the Ran who writes explicitly that the fact that the shas makes no distinction between the amount of meat in the stores, it apparently makes no difference. This is also the way that the Nodeh B'yehuda leans, but is not תוקע עצמו on it to be lenient.

In short, the machlokes between the Chavos Da'as and Chochmas Adam seems to be whether we follow the source of where the item came from - רוב חנויות מוכרות בשר שחוטה, or the statistical chance of it being kosher - רוב בשר טריפה. The Binas Adam holds firmly that we follow the statistical chance of it being kosher and therefore disregard whether there are 9 kosher stores and 1 treif, or 9 treif and 1 kosher, since it is all dependent on the quantity of meat for sale in that city. The language of chazal - רוב חנויות, was assuming equal amounts of meat in all stores.

I once received a shaila that I consulted many gedolim on. One of the issues that were raised is whether rov is a realistic statistic or an invention of chazal in making assumptions. For example, when trying to determine the yichus of a child found in a city, if the city is inhabited by mostly gentile woman and a small minority of Jewish women, but almost all the gentile woman are post menopause whereas most Jewish women are of child bearing age, do we assume the child is a goy (blindly following the rov) or a Jew (statistically the mother is Jewish)? Rav Hershel Schachter (as reported by his son R. Shay) held strongly that rov is a statistical reality and therefore the child is Jewish, whereas Rav Asher Weiss held strongly that rov of the city is goyim so the child is a goy. To me it seems that if it were truly impossible for the gentile women to conceive, they wouldn't be part of the rov, but if it is possible albeit unlikely (for example the goyim were all in their 40's and the Jews all in their 20's), they should be part of the rov rendering the child a goy (Rav Hershel would maintain that we follow the statistical chance therefore if it were more likely that the child would be born from a Jewish woman, we would ignore the fact that most women in the city are goyim). 

At first glance it would seem that the Binas Adam supports the approach of Rav Hershel Schachter - we follow the statistic reality that this meat comes from the majority of the meat in the city and don't get caught up in the language of chazal רוב חנויות. However, in truth even the Binas Adam may hold that we include in the rov all possible sources and we would not use statistics to limit who we allow into the rov. For example, if the issue were the wife of a kohein being raped and we had to determine whether the rapist was from the rov k'sheirim, or mi'ut p'sulim, we would include every rav, rosh yeshiva, and magid shiur in the rov kesharim since they are all potential albeit unlikely rapists. Statistics may say she was raped by someone who is passul, but we would still follow all the potential people who could have raped her, even those who are unlikely to have done so (my understanding is that Rav Hershel would hold that we follow the statistical evidence even in this case). The Binas Adam doesn't necessarily hold that we follow statistics to limit the pool, but rather if we are judging on the meat we have to look at all the meat around. If we are judging on people such as Jews vs. goyim for hashavas aveida or rape, we would look at the entire pool of people.

Nidah 16b - Angel Appointed Over Birth

The gemara makes reference to an angel that is appointed over conception. Tosafos raises a question from the gemara in Ta'anis 2a that says that the key to birth remains in the hands of Hashem and isn't entrusted to an angel. Tosafos HaRosh answers that Hashem deals with conception Himself, but then hands it off to an angel to take over. However, Tosafos seems to make a distinction between conception and birth. An angel is appointed over conception but Hashem Himself deals with the birthing process. This implies that we consider birth to be a greater miracle than that of conception so that G-d must deal with it himself.

Nida 16a - More about vestos d'oraysa

The gemara questions again whether vestos are d'oraysa or d'rabonon. It is clear from the sugya that the difference between the two approaches is when a woman forgot to do a bedika during the time of her veset, but does a bedika after the time of her veset and comes out clean, whether she can assume a status of taharah. The opinion who holds vestos are d'oraysa require he to assume that she bled during her veset and because she failed to do a bedika she didn't notice the blood.

One of the major questions regarding this machlokes is raised by the maharatz chiyus 15a. In all other areas of halacha we apply a concept of chazaka. When something occurs 3 times, we assume it will happen again. What is the rationale to say that vestos are only d'rabonon - shouldn't it be d'oraysa due to the chazaka?

There are many different approaches to this. The Pischei Teshuva (184:3) cites the Nodeh B'yehuda and Chasam Sofer who say that the chazaka of being tehora contradicts the chazaka of orach b'zmano ba, therefore we don't have a d'oraysa chazaka telling us that she became a nidah since it is countered by the status quo of not being a Nidah. They continue to explain that this works only when looking back trying to determine whether she became a Nidah during the veset. However, when one looks forward to be concerned that a woman will become a Nidah, the status quo doesn't help to say she will always remain in the state of tahara since we know for certainty that she will NOT always remain in this state. They apply the concept of שמא מת לא חיישינן, שמא ימות חיישינן - we aren't concerned that a person died because they have a chazaka of being alive, yet we are concerned that they will die. Therefore, even if vestos are only d'rabonon, that means that after the time of the expected period, she is still assumed to be tahora, but during the time that she is expecting her period she is forbidden according to the Torah from having relations since there is a d'oraysa fear that she will become a Nidah during the veset time.

An alternate approach is indicated by the Chavos Da'as (cited in Pischei Teshuva 18). Although a woman has a chazaka that she will become a Nida during her veset, the lack of hargasha proves that she didn't become a Nidah. Therefore, although the chazaka may be d'oraysa the fact that she didn't have a hargasha creates a rei'usa in the chazaka. Based on this the Chavos Da'as holds that if a woman did something during her veset to mask her hargasha, such as doing a bedika and losing the cloth, or even urinating, then the lack of hargasha cannot prove that she is tahorah. She would need to be concerned that she actually had a hargasha without realizing it and is tamei. It would also seem based on this approach that the chavos da'as would agree with the nodeh b'yehuda and chasam sofer - she would have to be concerned during the time of her veset that she may get a hargasha and start bleeding. This is a d'oraysa concern even according to the opinion who holds that vestos are only d'rabonon.

Both these approaches seem to assume that the chazaka of the veset is itself a regular chazka, just that there is something counter acting the chazaka demoting the chazaka to be only a d'rabonon concern and not d'oraysa.

The Chazon Ish has a different approach. He understands that all agree that chazaka wouldn't apply here since there are so many variables that can impact a woman's menstrual cycle. Even the opinion who holds that vestos are d'oraysa doesn't attribute it to chazaka but rather to a special halacha l'moshe misinai, as rashi writes on both 9a and 15a. The opinion who holds vestos d'rabonon holds that there is no halacha l'moshe misinai. Following this approach, it is very understandable why rashi holds that according to the opinion that vestos are only d'rabonon, even without a bedika to confirm she is tahora, we can assume she is tahora. This is apparent in rashi in his comment at the start of the sugy, and against Tosafos who seems to say that she is only tahora after confirming it through a bedika at some point later on. Based on this approach, we aren't concerned about doing an activity that may have masked the hargasha because the entire concern of having a hargasha and seeing was created by the rabbonon, not by a real chazaka.

Nidah 15a - Vestos D'oraysa or D'rabonon

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.

Nidah 13b - Geirim in Arvus

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.