Tuesday, July 31, 2012

Brachos 2a - Reading Shema After Chatzos

Last night we were zocheh to make the a siyum ha'shas in Palo Alto, CA. This was probably the first time a group ever learned through the entire shas together in this area of the world. 
Mazal Tov to ALL!

We have a machlokes in the Mishna between Rabban Gamliel and the Chachamim whether Shema must be read by chatzos. It is clear from the Mishna that on a Torah level, the actual end time to read shema is alos ha'shachar (or maybe sunrise), and the end time of chatzos is only m'drabonon to prevent people from being negligent and coming too close to the actual end time and violating an aveira.
It would seem that the entire argument would be lichatchila. Meaning, all would agree that if you haven't read by chatzos that you should still read afterward to fulfill the mitzvah d'oraysa. This is clearly the approach of the Rambam (Hil. Krias Shema, 1:9). However, this approach doesn't fit well into the Mishna because the Mishna seems to illustrate the opinion of Rabban Gamliel by citing a story where he told his sons to read shema even after chatzos. How does this illustrate the opinion of Rabban Gamliel? Even the Chachamim agree that you can read after chatzos if you haven't read beforehand?
Rabbeinu Yona has an alternate approach. He understands that the machlokes between Rabban Gamliel and the Chachamim must be bidieved because lichatchila one must read it immediately when the time arrives. Rabbeinu Yona learns this from the gemara later 4b that explains that we try to avoid a situation where a person sits down to eat prior to the reading of Shema, even if there is plenty of time until chatzos. Since all agree that one must read shema immediately, they must be arguing about the bidieved. According to this approach, Rabbeinu Yona struggles with why the chachamim would say that even if chatzos passed and one hasn't read shema, it is too late and there would be no point in reading it. Why wouldn't you read it to fulfill the Torah obligation? Some suggest that they no longer allowed you to say the brachos, but shema should still be said. However, Rabbeinu Yona himself says that after chatzos there is nothing at all to do. He draws a parallel to when chazal uprooted the mitzvah of shofar and lulav when yom tov falls on shabbos. Similarly, chazal exempt linen garments from tzitzis, even though they are obligated m'doraysa, in order to prevent a shatnez violation. Here too, they uproot the Torah mitzvah after chatzos to prevent the violation of this mitzvah.
The Sha'agas Aryeh disagrees with this Rabbeinu Yona. We only find that chazal would uproot a positive mitzvah to prevent one from avoiding a more serious violation such as shabbos or shatnez. But here there is no potential violation of any external prohibition. The entire concern would be that one would violate the mitzvah of krias shema. What sense would there be to uproot the mitzvah of shema to prevent the violation of the mitzvah itself? Apparently, Rabbeinu Yona understands that it is worthwhile for chazal to uproot the mitzvah of shema for this individual this one time, to preserve the general mitzvah of shema by others and even for this individual for the future. They felt that had they left the z'man to be alos ha'shachar, many would be negligent and violate this mitzvah, but by making the end time chatzos they would ultimately be gaining the preserving the fulfillment of this mitzvah.

Thursday, July 26, 2012

Nida 71a - Is it embarrassing to be a Nida?

Rav Moshe has a Teshuva regarding whether a woman is required to keep harchakos in public in a way that it will become obvious that she is a Nida. The suggestion is that the kavod habriyos can push off a לא תעשה שבתורה which means a d'oraysa lo ta'aseh if it is passive, and a d'rabonon lo ta'aseh if it is violated actively (based on gemara brachos 20b). Rav Moshe's premise is that he doesn't see any justification to be lenient based on kavod ha'briyos because it isn't embarrassing to be a Nida. All women in their younger years spend 40% of their lives as Nida, so it shouldn't be considered an embarrassing situation.

The difficulty is the gemara which says that when they were tovel the clothes of a woman who died as a Nida (even clothes that were removed before she actually died), the live women who were Nidos were embarrased, so they instituted that they treat all women who die as a Nida in order to prevent embarrassment to those who are Nidos. Clearly, the gemara assumes that the state of being a Nida is embarrassing and therefore it is legitimate to consider it a kavod habriyos concern. Rav Moshe himself deals with this question and is me'dayek from Rashi who says
 - מתביישין - שאפילו במיתתן הם משונין מכל אדם, that the aspect that is embarrassing is not the state of being a Nida but rather the fact that they are being treated differently than everyone else. Therefore, Rav Moshe maintains his position that the state of being a Nida is not considered inherently embarrassing. Of course, this is somewhat subjective, but Rav Moshe holds would qualify as kavod habriyos which is measured objectively.

Wednesday, July 25, 2012

Nida 70b - Success in Learning

Someone recently reffered me to a  teshuva of Rav Wosner where he discusses the way to succeed in learning. He emphasizes the importance of looking everything up in Shulchan Aruch to understand the conclusion of every sugya which was the way of the Chasam Sofer and R. Akiva Eiger. He writes that when the Chazon Ish was young he would always learn the Tur and Beis Yosef after finishing a sugya and his friends would tease him that he is going to be a school teacher.  The Chazon Ish commented "Baruch Hashem I did what I did", clearly attributing his style of learning to be a factor in becoming the Chazon Ish.
At the end of the Teshuva, Rav Wosner writes that the main thing is to daven to Hashem for success in learning, citing our gemara that to achieve success one must both study and daven for siyata dishmaya.
The gemara asks how one becomes wise, and answers by limiting business activity and focusing on learning. The gemara then questions that it doesn't seem to work for all, to which the gemara answers that one also needs to seek mercy from the one who distributes wisdom - Hashem. The gemara then tells a mashal of a king who made a feast and distributed the food to all those who were beloved to him. The gemara ends by saying why do we suggest be ma'rbeh b'yeshiva if it is really dependent on davening, to which the gemara says that you need both.
However, the mashal in the gemara seems strange. The gemara is trying to emphasize the importance of being mevakeish rachamim and beseeching Hashem to grant wisdom. Yet, the mashal is simply about a king who distributes of his feast to those who are beloved to him. It would seem that the mashal to Tefila should include these people requesting or even begging the king to share his food with them. If the entire point of the mashal is to illustrate the power of prayer, why doesn't the mashal even include it? I would like to suggest that the function of Tefilah is not merely to make a request of Hashem and ask for success in learning. The function of Tefila is to develop a relationship with Hashem, recognize that He is the source of wisdom and become one who is beloved to Him. Therefore, the mashal doesn't include the request. The emphasis of tefillah isn't on the request but rather it is the method of becoming an o'heiv - one who is beloved by Hashem. The mashal is simple. If you are an o'heiv of Hashem He will distribute wisdom to you as a king distributes his feast to those who are beloved to him.

Nida 69a - Status of Hefsek Tahara

The Mishna 68a and Braisa 68b refer to the hefsek tahara as being "hifrisha b'tahara", and is certainly essential to being able to go to the mikva. However, the mishna and gemara only clearly demand this in the context of a Nida, not in the context of a zava (although on 69a there is a reference to a zava being hifrisha b'tahara). There is a machlokes tana'aim how early a Nida is able to be mafsik b'tahara. The issue is that during the 7 days there is an assumption that she will bleed and therefore, without a hefsek tahara she has no ability to change her status to an assumption that she isn't bleeding. The Mishna implies that the most lenient opinion (rabbonon) allow a hefsek tahara as early as day 2, but not on the day she started bleeding since she established herself to have a ma'ayan pa'suach (as the gemara explains in Rebbi's original position). In the end the the gemara implies that the conclusion of Rebbi is that she can even do the hefsek tahara on the first day. 
When it comes to a Zav and Zava there is no mention of hefsek tahara, just a discussion about the minimum amount of bedikos. We pasken like R. Eliezer, but there is a machlokes Rav and Rav Chanina whether she must at least have bedikos on day 1 and 7, the bookends, or any one bedika in the 7 clean days is sufficient. Rashi (69a d.h. v'hacha) points out that the only reason we are going to allow the bedika on day 7 to retroactively serve as 7 clean days for the past 7 day is because she did a hefsek tahara prior to the start of the 7 clean days. The concept of doing a hefsek tahara before starting the 7 clean days is also indicated to by the gemara saying that a zava who is "hifrisha b'tahara" on the 3rd consecutive day of bleeding can count the next 7 days (starting from the next day) as the 7 clean days even though she doesn't do a bedika until day 7. It isn't clear though from the gemara how essential this is. Rashi takes it very seriously:
ומיהו הפרשה בטהרה בעינן דמשוחזק מעין פתוח ליכא לאחזוקי בטהרה עד שתבדוק ותמצא שפסק כדאמרינן במתניתין דהפרשה בטהרה בעינן
Rashi understands that the same requirement of hefsek tahara that we have for a Nida we have for a Zava, which implies that it is essential on a d'oraysa level. However, the gemara then assumes that according to Rav who holds that a bedika works on day 7, a woman can show up on day 7 and go to the mikva - we don't require ספורים בפנינו. Therefore the gemara asks from a braisa that indicates that we do require ספורים בפנינו on Rav who says you don't [Similarly, Tosafos (d.h. v'hacha) seems to take for granted that the hefsek tahara is essential according to Rav and therefore questions why the Mishna speaks about a bedika on day 1 since anyway we are speaking when there was a hefsek tahara with a bedika on day 7]. The Maharsha asks, what is the question on Rav, even Rav agrees that without a hefsek tahara it cannot count as 7 clean days, and she didn't do a hefsek tahara?
The Tosafos HaRosh (to which the Maharsha had no access) asks the same question. The Tosafos HaRosh suggests that the hefsek tahara for Zava may only be a d'rabonon, not a d'oraysa. Therefore, although a woman wouldn't be permitted to her husband without doing a hefsek tahara, she would be required to be to'vel at the end of 7 days by doing a bedika on day 7 (according to Rav who doesn't require ספורים בפנינו), if we assume טבילה בזמנה מצוה. The halacha of טבילה בזמנה מצוה would require that we are machmir to assume that perhaps she stopped bleeding in a way where the 7 clean days were effective in the absence of a hefsek tahara. Tosafos HaRosh then adds that even if we consider the hefsek tahara to be essential on a d'oraysa level, as rashi implies, we still must be concerned that maybe she did it and didn't remember and therefore we require her to be tovel on the day she comes by doing a bedika and considering it the 7the day of her 7 clean days.

Monday, July 23, 2012

Nida 67b - Chatzitza D'oraysa

The gemara says that to qualify as a chatzitza d'oraysa it must be both רובו ומקפיד, meaning it must cover the majority of one's body and one must be makpid in not wanting it there. The Rabbonon are go'zer to consider it a chatzitza even if it is רובו or מקפיד. If it is neither רובו or מקפיד it is not even chatzitza d'rabonon (just a minhag to remove everything prior to going to the mikva). 

Rashi interprets the entire gemara to be referring to a chatzitza on the hair, presumably because it immediately follows a gemara that talks about knots in the hair being a chatzitza. Both Tosafos HaRosh and Tosafos in Succah 6a understand from Rashi that it is only in the hair where we consider something to be a chatzitza d'oraysa ONLY if it is רובו ומקפיד, but on the rest of the body it would be regarded as a chatzitza d'oraysa even if it is a מיעוט שאינו מקפיד. 

Perhaps this is the source of the Rama (beginning of 198) who requires a woman to remove everything prior to going to the mikva, because according to the Tosafos and Tosafos HaRosh understanding of Rashi, everything is a chatzitza on the body. It is difficult to understand why the Tosafos and Tosafos HaRosh learn Rashi to be holding that even a מיעוט שאינו מקפיד is a chatzitza on the body, rather than saying that what is only d'rabonon by the hair such as מיעוט המקפיד or רובו שאינו מקפיד is a chatzitza d'oraysa on the body. 

Tosafos disagrees with Rashi and understands the gemara to be speaking about the body, not the hair. 

Perhaps even Rashi would hold that the same halacha that we find by the hair (according to his understanding that the gemara is talking about the hair) would apply to the body as well. The reason Rashi would limit the gemara to be speaking about hair could be because he holds like the opinion cited by the Rambam that we view hair as an independent entity. Meaning, the halacha of רובו is the majority of the hair, or the majority of the body. Rashi could simply be saying that if the majority of the woman's hair is tangled, each hair onto itself, it would be a chatzitza d'oraysa because it would qualify as רובו ומקפיד even though there is no chatzitza on the body. The same would be true on the body if there was a chatzitza covering the majority of her body, even if there were no chatzitza on her hair.

Sunday, July 22, 2012

Nida 66b - Fit for Bi'as Mayim

The gemara says that the beis has'tarim, hidden areas of a woman's body but still external, such as the inside of the mouth and nose, don't need actual contact with water but must be cleaned from chatzitza so it is fit for contact with water. Tosafos 87a (d.h. pascha) writes that we tell a woman to open her mouth so that it is fit for water, just as we are makpid for chatzitza inside the mouth. The simple reading of Tosafos implies that if a woman keeps her mouth closed while toveling, the inside of her mouth is not "fit" for bi'as mayim and it will invalidate the tevila (but it is possible that the real concern of Tosafos is the chatzitza created by sealed lips). Tosasfos (d.h. kol) clearly holds that the requirement of ראוי לביאת מים for beis hastarim is d'oraysa, because Tosafos learns this from pesukim. However, the Ritva in Kiddushin 25a writes that the requirement for the beis hastarim to be fit for bi'as mayim is only d'rabonon.
The Sidrei Tahara (198:23: d.h. umi'dei avri) brought in my sefer mayim rabim pg. 213 asks on the how can a pasuk consider the beis hastarim a place that must be fit for water but not actually come into contact with water. Since the halacha is that on a Torah level something would only qualify as a chatzitza if you are makpid about AND covers the majority of one's body, it is impossible for there to be a d'oraysa chatzitza in beis hastarim. How then can the pasuk come to exclude beis hastarim? 
The Mishna Achrona based on this question concludes that anything that is placed on one's body intentionally can be a chatzitza even on a Torah level even though it only covers a minor part of the body. 
Alternatively, the zichron yosef (quoted by sidrei tahara) answers that although chatzitza couldn't be a d'oraysa problem in the beis hastarim because it is only a minority of the body, if one were to close their mouth preventing water from entering that would be a problem. The rationale is that a chatzitza is ta'fel - secondary, to the body, therefore when only covering a minor part of the body, it is as if it isn't there. However, by sealing the lips and preventing the entry of water, it would be a chatzitza if not for the Torah telling us that we don't need actual bi'as mayim (and according to the ritva excludes it on a torah level entirely from even being fit for bi'as mayim). Based on this he rules that although a safeik in chatzitza is a safeik d'rabonon, a safeik about sealing one' lips is a safeik d'oraysa.
The Sidrei Tahara himself says that the question doesn't compel any great chiddush. If not for the pasuk excluding the mouth from requiring contact with water, one would think that water must touch the majority of the body and if the beis hastarim helped make up the majority by the fact that it didn't come into contact with water, it would invalidate the tevila d'oraysa. The pasuk teaches that it doesn't need contact with water, it just needs to be fit for contact with water and would only invalidate the tevila if it weren't possible to come into contact with water.

Friday, July 20, 2012

Nida 63b - Cause and Effect for Vestos

The mishna lists specific types of vestos ha'guf that if they occur repeatedly (tosafos) prior to a woman getting her period, even just for one cycle, she establishes a veset (according to Rebbi that normally a veset takes two times, here it only takes one). The Mishna explains the definition of vestos ha'guf to be thing such as sneezing and yawning repeatedly prior to the start of the period. The gemara then identifies another situation where a woman eats garlic or onions and then gets a period. If this were to happen 3 times she would establish a veset. Tosafos question why the gemara considers it possible to establish a veset for eating garlic, yet the gemara says 11a that a woman cannot establish a veset for jumping at the time of the bleeding? Tosafos explains that jumping is an "o'neis", meaning a very mechanical method of causing the bleeding and therefore doesn't establish a veset since it is not so predictable. Whereas eating sharp foods is a more chemical cause of the bleeding which is more predictably associated with the bleeding. The Rashba in the first perek distinguishes between jumping and the standard vestos ha'guf of the mishna. A veset is an indication that the bleeding is about to begin, meaning that the symptom is caused by the start of the menstruation and therefore an indication that the bleeding is about to start. However, jumping is not a sign or indication of the bleeding about to start, it is actually the cause. A veset is only when the bleeding causes the symptom or action, not when the action causes the bleeding. This approach doesn't answer Tosafos question where the sharp foods would seem to be the cause of the bleeding.
In the next Mishna we pasken like Rav Yehuda who says that a woman must be concerned for her period the entire o'nah (12 hour time slot) that she is expecting it, either by day or by night. The Rashash asks that since she has to expect her period our before it usually occurs, from the start of the o'nah that it usually occurs in, why do we say that a woman who has a veset is דיה שעתה and is not tamei retroactively? Shouldn't we be concerned that the blood was here a few hours prior to the finding of it from the start of the o'nah? The Rashash answers that the concept of forbidding a woman to her husband during the o'nah is out of fear that the chimud for being with her husband would contribute to the blood coming earlier. Therefore, when she gets her period she doesn't have to be concerned that the blood came earlier, but if she were permitted to her husband at the beginning of the o'nah we would be concerned that the blood will come earlier. The chimud can actually be a cause of the dam, not just a halachic prohibition created by the dam.

Wednesday, July 18, 2012

Nida 61a - Being Concerned for Loshon HoRah

The gemara tells us a rule that although one is not allowed to believe loshon ho'ra, they must at least take precautionary measures. The gemara cites a pasuk that considers Gedalia Ben Achikom guilty of the murders of Yishmael Ben Nesanya (who was the one who killed Gedalia himself), because Gedalia could have protected himself by following the advice of Yochanan, and did not. Similarly, the gemara tells of people who had a reputation of murderers who made a request of R. Tarfon that he hide them. R. Tarfon said that if he doesn't hide them, they will be killed by the government (even if they aren't actually guilty), but if he does, he himself will be in danger for protecting fugitives. Therefore, he compromised by advising them where to hide without playing an active role in hiding them.
Rashi explains that R. Tarfon was correct in not assisting them in hiding because "maybe they killed and it would be forbidden to savve them". The Rosh (also in Tosafos HaRosh) questions this. How can the concern for the possibility that "maybe" they killed, create a prohibition on R. Tarfon to save them? Therefore, Tosafos and Tosafos Harosh conclude that he was concerned that his safety would be compromised if the government found out that he was hiding them. He was afraid that perhaps they were murderers and the government would hold him responsible for protecting them. Tosafos HaRosh writes emphatically that one may one be "choshesh" for loshon hora by protecting himself and others from harm. One has no right to be concerned or believe the loshon hora beyond what is necessary to protect people from harm. The Ya'avetz asks, why is this an example of being concerned for loshon hora, even if R. Tarfon would know beyond the shadow of a doubt that they did not kill, he would have the right to refuse helping them in order to protect himself? Perhaps the situation was that R. Tarfon knew that the government wouldn't harm him unless they looked into the matter and found these people guilty of murder, so the only concern for his safety would be if they actually were murderers.
It seems from Rashi that the concept of being "choshesh" for loshon hora doesn't simply entitle you to protect yourself, but rather it is a halachic requirement to not take action that would be forbidden if the loshon hora were true (such as saving an alleged fugitive). The Chofetz Chaim (6:10:25) paskens like Toasfos that being choshesh for loshon hora cannot go beyond what is necessary Ch protect oneself and others.

Monday, July 16, 2012

Nida 58b - Dam V'elo Kesem

R. Akiva teaches his talmidim a drasha דם יהיה זובה בבשרה - דם ולא כתם, only a flow of blood is metamei but not a stain. Based on this R. Akiva rules that so long as something exists to attribute the stain to, even an injury that is presently scabbed and not bleeding, she would be tahora. The Sidrei Tahara (end of 190) explains that according to the Rambam a woman is only tamei d'roaysa if she is confident that the blood is from her, AND that she has a hargasha. The absence of either, such as the blood definitely being from her but coming without a hargasha, or the possibility of a hargasha but having something else to attribute the blood to i.e. finding blood after tashmish when she has some type of wound, she is tahora. The source for the requirement of hargasha is the drasha of Shmuel on 57b בבשרה - עד שתרגיש בבשרה, and the source of her knowing for sure that the blood is from her is from R. Akiva's drasha in our gemara. Both are true and accurate.
The Maharatz Chiyus asks from our Mishna on the Taz who writes (Y.D. 116) that any leniency that is explicit in the Torah, the Rabbonon don't have the authority to forbid. How then can they be go'zer on kesamim after the Torah says דם from which chazal understand is to the exclusion of a kesem? Although one can say simply that the inference of ולא כתם is merely an inference and wouldn't qualify as explicit in the Torah, the Maharatz Chiyus cites another Taz (O.C. 588) who says that chazal couldn't prohibit doing a Bris on Shabbos out of fear that one may carry as they did by shofar and lulav because it is explicit in the Torah that a Bris can be done on Shabbos. The Torah says וביום השמיני ימול את בשר ערלתו and chazal understand that ביום implies even shabbos. Just as this is considered "explicit" in the Torah since that is how chazal interpret the word of  וביום, so too we should consider the exclusion of a kesem from Nida to be explicit in the Torah. How then can chazal be go'zer on kesamim?
It seems to me that there is a clear distinction between considering it explicit in the Torah that Bris can be done on shabbos, and considering the heter of kesamim explicit in the the Torah. When the Torah writes the word וביום, chazal teach us that it means as it sounds, every day of the week including shabbos. Therefore, the Torah is explicitly saying according to the translation of chazal that one can do a bris on shabbos. That is why the Taz holds the Rabbonon don't have the authority to forbid it. However, in the context of a stain, although chazal understand the term דם to include only clear bleeding from her body, not a stain, the Torah doesn't make a statement about what is not tamei, it only makes a statement about what is tamei. The Torah says that "dam" is tamei, which chazal interpret to refer to a flow, but the Torah never says explicitly says that anything aside from that it is tahor. It is a correct inference, therefore kesamim are not tamei on a Torah level, but it doesn't qualify as explicit to prevent chazal from prohibiting it.

Friday, July 13, 2012

Nidah 56b - Kusi'im and their beliefs

The Mishna says that Kusim are believed to say that there is no miscarried fetus buried in a particular location. In general we assume that they are believed on d'oryasa things but not d'rabonon. Areas of halacha that they keep, Rav Shimon Ben Gamliel in Gittin 10a says that they are more strict than Jews in the way they keep it. However, they generally don't accept Rabbinic law (with the exception of cases where the rabbonon used a pasuk as an esamachta for their institution, and the kusim believed it to be the simple understanding of the pasuk as the gemara says 57a by tziyun kevaros), and they also reject the interpretation of chazal that remove the pesukim from their simple understanding. This is why the gemara assumes that they wouldn't darshen the pasuk of לפני עור לא תתן מכשול to include causing someone to do an aveira. They take the pasuk literally to refer to placing a stumbling block in front of a blind man as rashi writes in chulin (it is unclear whether they would include giving bad practical advice in this pasuk). Therefore, the Kusi is only believed that a place is tahor if he is a kohein standing on that place, otherwise it would just be an issue of causing someone else to stumble which they aren't sensitive to.
The main issue with Kusim is that they don't trust the Rabbonon in their assumptions and drashos. Tosafos asks why are kusim believed about their kesamim, since the tu'mah of a kesem is only rabbinic, kusim shouldn't hold of it. Tosafos answers that they assume that it comes from her body. Meaning, that the kusim don't follow the rabbinic parameters of kesamim to be strict or lenient. Rather, they follow their own simplistic assumptions that it would have come from her body. It should follow that kusim not only keep the laws of kesamim but they are stricter than we are and render even kesamim smaller than a gris or found on something not susceptible to tu'mah, to make her tamei. This can actually lead to a problem since the Kusi may start the count of 7 days from a kesem that didn't make her tamei, completely throwing off her proper day of immersion.

Wednesday, July 11, 2012

Nida 55a - Eating Skin and Nails

Some people have a terrible habit to bite their nails. A grown man recently admitted at my Shabbos table that he has a bad habit to bite his nails and that he swallows his nails after biting them. Similarly, some people bite the skin on their lips and swallow that as well. This raises an interesting question regarding the kashrus of human nails and skin.
There is a machlokes Rambam and Rashba (Ran in Kesubos) whether the prohibition to eat human flesh - בשר מהלכי שתים, is a Torah violation (issur aseh), or a Rabbinic violation. The Rama (Y.D. 79:1) rules in accordance with the Rambam that human flesh is prohibited from the Torah. In the parenthesis citing the soures for the Rama it mentions that Tosafos and the Rosh seem to understand that it is not a Torah prohibition. The Gr"a also provides some background for the two opinions. This is all in regard to the flesh of a live human being. The Shach (3) points out that the flesh of a dead body is an issur hana'ah which is certainly d'oraysa and derived from egla arufa. The Aruch Hashulchan rules in favor of the Rambam because since human flesh is tamei on a Torah level, it must also be prohibited to eat since we usually don't find tu'mah without their being a prohibition.
It isn't clear whether nails and skin have the same status as flesh. The Darchei Teshuva cites a sefer who quotes telling that he was approached by a childless woman who wanted to swallow the circumcised skin (orla) of a baby as a segula to have a child. He ruled that this would be prohibited according to the Rambam from the Torah. He assumed that skin would be included in the status of flesh. However, the Pri Megadim (sifsei da'as 3) quotes from the Rashba in a teshuva that the skin of a person is permitted since even by kodshim where the meat is certainly forbidden, it is permitted to use the skin. Furthermore, it should be similar to hair on which there is no prohibition, but then writes that perhaps there would be a Rabbinic prohibition.
The gemara in Nidah 55a clearly states that hair and nails aren't included in flesh in the realm of tu'mah. Only flesh of a dead body is a source of tu'mah, not teeth, hair or nails because they are either not created with the person (teeth), or they regenerate. Based on this it would seem clear that in the realm of eating human flesh, hair, teeth and nails would also not be included. Regarding skin the gemara has 2 approaches. In the first approach the gemara assumes that in the world of tu'mah, skin is not like flesh because it regenerates, but in the second approach the gemara assumes it is like flesh since it doesn't regenerate and therefore has tu'mah like flesh. It would seem that the question of whether skin is regarded as flesh is a point of dispute between the two approaches of the gemara. The Rambam (Tu'mas Meis 3:11) rules in accordance with the second approach, that human skin unless it is thoroughly worked like a hide, would be a source of tu'mah on a Torah level, therefore it is legitimate to assume that when chazal say that for humans skin is like flesh - עורן כבשרן, it would mean in all areas of halacha. Based on this, human skin is forbidden to eat m'doraysa.
On the first version of the gemara that doesn't consider human skin tamei on a torah level, yet the Rabbis rendered it tamei to prevent mistreatment of the skin of one's parents; Tosafos asks, why did they need to make it tamei m'drabonon since anyway there is a Torah prohibition to benefit from a dead body? Tosafos offers 2 answers: 1. The Rabbonon realized that people take tu'mah more seriously than issur, so although there is a Torah prohibition, they felt that by rendering it tamei it would be more of a deterrent. 2. The prohibition to benefit from a dead body applies only to flesh, not to skin. Tosafos supports this notion from the fact that the source to prohibit benefit from a dead body is egla arufa which is learned from kodshim and by kodshim itself there is no prohibition on the skin. It seems from Tosafos that regardless of whether the tu'mah on human skin is d'oraysa or d'rabonon (2 approaches of gemara), all would agree that the issur to benefit from a dead body would not include the skin.
Since we pasken like the second version of the gemara, we are faced with somewhat of a discrepancy in categorizing skin. In the world of tu'mah it is like flesh which is tamei, but in the context of benefiting from a dead body it is not considered like flesh and there is no prohibition. It is unclear whether the prohibition to eat human flesh includes skin. If we model after tu'mah it should, but if we model after the prohibition to benefit from a dead body it should not. It seems more logical to learn issur from issur rather than issur from tu'mah which seems to be the assumption of the Rashba cited by pri megadim who doesn't consider human skin prohibited by the Torah.

Nida 54 - This Chart May Help

Click HERE for PDF

Red = Days of bleeding
Bold = Days of Ziva
Yellow = 7 clean days
Strike through = Forbidden days
Underline = Days of Nida on which she doesn't bleed

Tuesday, July 10, 2012

Nidah 52b - Shiur for Hairs

The Mishna has three opinions for how long a hair must be to be considered a hair. The first opinion is that it must be long enough to bend the tip back to the root, the second opinion is that it must be long enough to catch a nail when it runs over it, and the third is that it must be able to be cut with a scissors. Rav Chisda says in the name of Mar Ukvah that we pasken like all of them to be machmir. Tosafos explains that she can't do chalitza until she has 2 hairs that meet all the requirements, and she couldn't do mi'un even if she has hairs that meet the minimum requirement (Tosafos says in the name of Rabbeinu Tam that since the hairs can be anywhere and don't need to be adjacent to one another, and they can even be follicles without actual hairs, we are machmir not to allow mi'un as soon as she is 12 years old even if we don't find any hairs).
The Rambam (Hil. Ishus 2:16) writes that when a boy or girl have 2 sa'aros, from the stage of being able to be cut with a scissors until the stage of being able to bend it back to its root, we are machmir to consider them adults, but not lenient.
Rav Chaim (Brisker) questions why the Rambam omits the middle shiur of כדי לקרוץ בצפורן. Although generally being machmir for the largest and smallest is sufficient, there would still be a point to mention the middle shiur. For example, in a case where she married herself off after stage 1, stage 2 and stage 3 to 3 different people, we shouldn't say that it is sufficient to receive a gett from 1 and 3, rather she would also need a gett from 2 because she may have transformed into a gedola at that stage? Furthermore, Rav Chaim asks that the Rambam in the context of Para Aduma in discussing the halacha of 2 black hairs invalidating the parah aduma, writes that you can trim the hair down to the shiur of "being cut by a scissors" and if what remains is red and not black, the para aduma is kasher. The kesef mishna asks why is the Rambam lenient for the small shiur of being cut by a scissors, we should be machmir for the larger shiur of bending the head back to the root so that the hairs would be considered black and passul the para aduma?
Rav Chaim writes that the halacha of כדברי כולן להחמיר is only for halachos in the hair themselves. For example, when there is a halacha that through these hair we would consider him/her to be a gadol, we are machmir in both directions for the shiur of what qualifies as a hair. Since the halacha demands "2 hairs" we are machmir that it does't qualify until it is large enough to bend back to its root. However, in the context of para aduma the halacha of the hairs being red isn't a halacha in the actual hairs. The halacha doesn't demand a hair that has red roots. Being that the halacha of red hairs doesn't require the hair to have a status of a hair in halacha, we can follow the minimum din that would allow us to consider the hair to be a hair - being able to be cut with a scissors.
However, Rav Chaim points out that his approach is only plausible if we are to say that the din of הלכה כדברי כולן להחמיר is not a halacha resulting from a safeik of not knowing who to pasken like. Rather, it is a halacha that is said בתורת ודאי. Meaning, all agree that hairs that meet the minimum requirement has status of a hair, just that the halacha demands that to consider her a gedola the hairs must meet the maximum requirement. If it were simply a halacha resulting from not knowing who to pasken like, it would be obvious that we couldn't be lenient until we were sure she was an adult. Rather, there are 3 legitimate shiurim said by hairs, the smallest allowing the hair to have status of hair, and the largest shiur invalidating the smaller shiur and establishing a larger shiur. Based on this approach, the halacha only considered the largest and smallest to be legitimate shiurim of hair for which we must be concerned. The middle shiur is not part of this halacha and therefore the rambam omits it from his halacha.

Thursday, July 05, 2012

Nidah 46b - Obligation on a child to do mitzvos

In Brachos 48a the gemara says that one who eats a kezayis can make birchas hamazon for others. Rashi understands that since the one saying birchas hamazon is obligated m'drabonon, he can be motzi others who are obligated m'doraysa. However, Rashi asks that we find that a child who reached the age of chinuch cannot make birchas hamazon for an adult, to which rashi answers that a child who reaches an age of chinuch is not even obligated m'drabonon, rather it is a rabbinic obligation on the father to train him to do mitzvos. Tosafos asks on rashi -דוחק לומר בקטן שהגיע לחינוך קרי אינו מחוייב מדרבנן. They seem to argue whether a child who reaches an age of chinuch is considered to be obligated m'rabonon, or is it merely an obligation on the father not on the child himself.
However, from our gemara (as explained by rashi) this isn't plausible. The gemara says that if a מופלא סמוך לאיש is m'doraysa in that his vows are binding, he should receive lashes for eating what he is makdish. If it is not d'oraysa, not only should there not be malkus for the child, there shouldn't even be a prohibition. The rationale of the gemara is that unless there is a gezeiras hakasuv telling us that a מופלא סמוך לאיש is responsible for his actions, it isn't possible to hold him accountable for his actions at all. Rashi explains that if the concept of מופלא סמוך לאיש is d'rabonon, all they would institute is that other shouldn't eat what this child was makdish. They wouldn't impose an issur on the child himself - דקטן לאו בר קבולי עליה תקנתא דרבנן הוא. Rashi holds that had the Torah imposed a specific issur on a child, we would have to accept it. But, if the Torah wouldn't impose an issur on the child, it would be impossible for the Rabbonon to do so. According to this approach it is impossible to say that a child is "obligated" in anything. Others may be required to guide him, depending on chinuch and whether we say beis din metzuvin l'hafrisho, but he himself has no obligation to refrain from issurim.
Regarding the issue of קטן אוכל נבילות , we pasken אין בית דין מצווין להפרישו, that beis din isn't required to stop him. There is a Toasfos in Shabbos that says that when a child reaches an age of chinuch we would then say that beis din is obligated to stop him. The Rashash asks that our gemara is clearly against this. Our gemara is speaking about a child who is one year prior to being a gadol, yet applies the concept of אין בית דין מצווין להפרישו. The Rashba also raises this question. 

Wednesday, July 04, 2012

Nidah 45b - Binah Ye'seira

The gemara makes a famous statement that Hashem gave MORE bina (understanding) to a woman than a man. This implies that on some level a woman has a greater mental capacity than a man. However, in the context of the gemara, as pointed out by the Tosafos HaRosh, the gemara is simply saying that a woman matures and her mind develops prior to a man. It is for this reason that she is considered to be an adult at the age of 12 whereas a man must wait another year. According to this approach the gemara isn't making a comment about the amount of understanding being greater in a woman, just the time that they develop their level of understanding.
The Torah Temima in Parshas Eikev (11:9) discusses why the Talmud considers women to be exempt from the mitzvah of Talmud Torah. He raises a contradiction between our gemara which considers women to be superior in the realm of Bina, and the Talmud's comment in Sota that women are da'atan kalos - light headed. The Torah Temima explains that Da'as refers to the מושכל ראשון, the initial assessment of a situation.  Bina refers to the ability to analyze, disect and understand deeply. The Torah Temima explains that women have a greater Bina but a weaker da'as, therefore their initial recognition of the material isn't as sharp. When they apply Bina to a less sharp picture, their analysis of the material ends up being distorted. However. men have a weaker bina and less ability to dissect the material, but a sharper מושכל ראשון, which enables them to have a more accurate picture although not as in depth of an understanding.
The entire approach of the Torah Temima is based on the assumption that שנתן הקב"ה בינה יתירה באשה יותר מבאיש, means that women have greater Bina. But, according to the Rosh the contradiction between Bina and Da'as isn't a question since the Bina is not greater, just comes to women at an earlier age.

Tuesday, July 03, 2012

Nidah 44b - Killing an Fetus

The gemara implies that a "ben yom echad" is considered a life so that if one would kill him, the killer would deserve capital punishment. Tosafos explains that this would not apply to a fetus. Prior to birth we wouldn't render a fetus a full fledged life. When Tosafos discusses the issue of killin a fetus - abortion, they use a language of "mutar" - permitted. The simple reading of Tosafos would indicate that not only would we exempt one who aborts a fetus from capital punishment but it would actually be permitted to abort a fetus. Tosafos asks that it is clear from the gemara in Erchin 7b that one is permitted to violate shabbos to save a fetus inside the mothers womb. How can we permit the violation of shabbos for a fetus that one is "allowed" to kill? Tosafos answers that although one must even violate shabbos to save a fetus due to the importance of pikuach nefesh (saving a life), nevertheless it is permitted to kill it. Tosafos cites a proof from one who is a go'ses - dying, where we find that one who murders him is "patur" - will not receive capital punishment, but it is still necessary to violate shabbos to save him.
If we are to take Tosafos at face value, that "mutar" actually means permitted, the logic of Tosafos is impossible to understand. How can it be permitted to kill the fetus, yet would warrant violating shabbos to save it for pikuach nefesh?! If we don't regard it as a life and permit the killing of it, we certainly can't justify the violation of shabbos to save a "life"! Furthermore, the proof that Tosafos cites from go'ses wouldn't prove this chiddush, it would only prove that you could violate shabbos for an individual that you wouldn't receive capital punishment for killing, but you couldn't prove that you could violate shabbos for one who it is "permitted" to kill. For this reason, Rav Moshe writes in a teshuva that the language of Tosafos is misleading. Tosafos never meant that it is actually "mutar" - permitted, to kill a fetus, rather Tosafos is just saying that one wouldn't receive capital punishment for doing so. Rav Moshe understands that it would be a Torah prohibition to abort a fetus and would even fall under the heading murder, but it would be the type of murder for which there is no capital punishment. According to this approach it is understandable how one can violate shabbos to save a fetus. Tosafos thought in their question that the right to violate shabbos should be dependent on their literally being capital punishment for aborting. Tosafos concludes that even if there is no capital puishment, since it is still considered a life by the torah so that one who aborts would be considered a murderer, it is permitted to violate the shabbos to save the fetus. This approach is supported by Tosafos in Chulin 33a that distinguishes between goyim and jews - a goy is killed for abortion just like actual murder, whereas a jew is not killed, which implies that it is still a prohibition. This approach is against the chavos yair cited by maharatz chiyus who says that prior to labor it is literally permitted. Rav Moshe considers the approach of the chavos yair to be a terrible error.

Sunday, July 01, 2012

Nidah 43a - Shichvas Zerah Being Capable of Impregnating

The gemara has three versions regarding the type of shichvas zera that is able to make someone tamei. The first version is that only if his entire body feels the sensations, does it render him tamei. The second version is that any shichvas zerah that doesn't leave his body like an arrow, doesn't make him tamei. The third version is that shooting out like an arrow is only a necessary requirement to impregnate, but even if not, would render him tamei. The gemara explains that according to the first version, so long as the shichvas zera would begin to emanate with a hargasha, it would render him tamei even if it leaves his body without a hargasha. The gemara learns this from the fact that the shichvas zerah needs to be able to impregnate in order to be metamei. This implies that so long as the shichvas zerah begins with a hargasha, even though it leaves his body without a hargasha, it is capable of impregnating. Tosafos asks that this seems to contradict the gemara in Yevamos and Nedarim that say that if the shichvas zera doesn't leave his body forcefully, like an arrow, it isn't capable of impregnating. Tosafos offers 2 approaches: 1. The first version of our gemara holds that so long as it initially uproots itself with a hargasha it is capable of impregnating even though it leaves his body without a hargasha and is not "yoreh k'cheitz" - doesn't shoot like an arrow. In short, this gemara contradicts those gemaras. 2. The gemara in Nidah is only addressing the potency of the semen, but not the mechanical ability to impregnate. The fact that it uproots with a harghasha is the type of semen that is potent enough to impregnate, but the sperm will not reach it's destination so that it can actually impregante, unless it is yoreh k'cheitz - shoots out like an arrow. According to this second approach, the version in Nida that requires Yoreh K'cheitz would hold that otherwise the shichvas zerah doesn't have the chemical potency to impregnate.
According to the second answer of Tosafos, the third version of Shmuel that requires Yoreh K'cheitz to impregnate, would hold that it is a chemical determination of the semen, not merely a mechanical requirement of penetrating deeply into the woman's body. Based on this we can understand the gemara in Chagiga 15a. The gemara talks about the possibility of a man leaving behind sperm in a bath and a woman subsequently bathing and becoming pregnant. The gemara asks, how can this happen since the shichvas zera didn't penetrate her while being yoreh k'cheitz. The gemara answers that since it left the mans body while being yoreh k'cheitz, it can impregnate even though it didn't enter her body with the force of "an arrow". Clearly, the gemara understands this statement to be a determination of the type of semen that can impregnate, not a method of penetration into the woman.