Tuesday, March 27, 2012

Krisus 10a - Opening of Uterus Will Always Cause Bleeding

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.

Thursday, March 15, 2012

Temurah 31a - Animal that is raised on non-kosher food

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.

Wednesday, March 14, 2012

Temurah 30b - Having relations with one's wife while pregnant

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.

Thursday, March 01, 2012

Temurah 16a - Halachos Forgotten in Aveilus of Moshe

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.