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Yevamos, 114

1) THE MITZVAH OF "CHINUCH"

OPINIONS: The Gemara discusses whether or not Beis Din is required to stop a Katan from doing an Aveirah.

Why should there be a question of whether Beis Din is required to stop a Katan or not? There is an obligation of Chinuch which requires us to teach each child to do Mitzvos! How can Beis Din *not* be required to stop a Katan from doing an Aveirah if we are required to fulfill the Mitzvah of Chinuch?

(a) The RAMBAM (Hilchos Ma'achalos Asuros 17:28, and Hilchos Avel 3:12) explains that our Gemara is discussing the specific obligation of *Beis Din*. Beis Din has no obligation of Chinuch for a child. The obligation of Chinuch is solely the responsibility of the child's father (or parents; see Insights to Chagigah 6:1). When the father is present, he certainly is obligated to stop the child from doing the Aveirah. The Gemara's question is whether Beis Din must stop the child if the father is not present (or if he is present but does not stop the child himself). This is also one of the approaches of the TOSFOS YESHANIM in Yoma 82a, in the name of the RI.

(b) The RASHBA and RITVA, and TOSFOS in Shabbos 121a DH Shema Mina, suggest that our Gemara is discussing a Katan who has not yet reached the age of Chinuch ("Katan she'Lo Higi'a l'Chinuch"). Regarding such a Katan -- for whom there is no obligation of Chinuch -- there is a question whether Beis Din must stop him from doing an Aveirah. The point of the question is whether an Isur is more severe than a positive Mitzvah such that we must prevent a child from doing Isurim even before he reaches the age at which we are required to instruct him to do positive Mitzvos.

Although the Ritva accepts this ruling in practice, the Rashba eventually rejects it. The Rashba cites the Gemara earlier (113a) that asks that a Chareshes married to a Kohen should be allowed to eat Terumah because she is like a Katan who is not obligated to observe the Mitzvos and Beis Din is not required to stop such a person from doing an Aveirah. It seems from the Gemara there that there is no difference between a Ketanah who has reached the age of Chinuch and a Ketanah who has not reached the age of Chinuch -- in both cases, Beis Din is *not* required to stop the Ketanah from doing an Aveirah!

(The Ritva might refute this proof by differentiating between a Chareshes and a Ketanah who has reached the age of Chinuch, since a Chareshes will *never* be obligated to do Mitzvos.)

(c) The RASHBA concludes that our Gemara is talking about a child who has reached the age of Chinuch. The reason why Chinuch does not apply to him is because the Mitzvah of Chinuch may apply only to Mitzvos Aseh. The Gemara's question is whether there is a requirement of Chinuch for Mitzvos Lo Ta'aseh as well. This is also the view of TOSFOS in Nazir (28b), and of TOSFOS YESHANIM in Yoma (82a) in the name of Rabeinu Eliezer.

The reason there should be more of an obligation of Chinuch for Mitzvos Aseh than for Lo Ta'aseh is because more effort is required to teach a child to do something than to teach him to refrain from doing something (see TERUMAS HA'DESHEN #94). (See also Insights to Shabbos 121:1.)

HALACHAH: The SHULCHAN ARUCH (OC 343) cites only the Rambam's opinion (a) that the father is commanded to stop the child from sinning and not Beis Din. The REMA cites both the opinions of the Rambam (a) and the Ritva and Tosfos (b), with the Rambam's opinion as a "Yesh Omrim." (The Terumas ha'Deshen, ibid., favors the opinion of the Rashba and Tosfos Yeshanim (c) who differentiate between a Mitzvas Aseh and a Lo Ta'aseh.)

114b

QUESTION: The Mishnah states that a woman who says that her husband died during a time of war is not believed. The Gemara says that the same applies during a time of famine, but there is one difference. In a time of war, a woman *is* believed to say that her husband died upon his bed. In a time of famine, a woman is *not* believed to say that her husband died upon his bed, unless she also says that she buried him.

RASHI (DH Meis u'Kevartiv) explains the reason for this difference. He says that "in a time of war, she will assume that he might have run away and was saved (if she did not actually see him die, and thus she will not mistakenly assume that he died on his bed), but in a time of famine, she reasons that there is no way that he could live (and thus she might mistakenly assume that he is dead)."

It seems from Rashi that there is less of a chance that a person will survive in a famine than in war, because one can escape from war more easily than from famine. Where, though, does Rashi see this in the Gemara? Why is it easier for him to run away from war than from famine? If he is sick and on his bed, he cannot run away from war any easier than from famine! And if he recovers from his sickness, why will she assume that he died from the famine? After all, it seems from the Gemara that we are only afraid the wife will testify to the husband's death "bid'Dami," based on conjecture, because she thinks that he is almost dead already and he will certainly die (as we see in the story of Rava and the "Nafefisa"). Why, then, should she testify that a hitherto *healthy* husband is dead just because there is a famine?

ANSWERS:

(a) The MAHARSHAL explains Rashi as follows. When a woman says that her husband died on his bed a natural death, there is indeed no reason to fear that she is testifying "bid'Dami." In times of famine, though, a woman is so certain that her husband cannot survive a famine that she is prepared to lie that she saw him die when she did not see anything of that sort. Therefore, we are afraid that she is *lying* and claiming that he died a natural death, because she is so certain that he is going to die from the famine.

In a war, she thinks that he is able to run away from the war, and that is why she will not lie and say that he died unless she sees herself that he died. But in times of famine, where she thinks that it is impossible to escape death, she will knowingly lie and say that she saw him dead, because she assumes that he did eventually die. She will not lie, however, and say that she also buried him, because she has no reason to assume that he was buried if she did not bury him.

The HAGAHOS YA'AVETZ points out, though, that from the flow of the Sugya, it does not appear that this is the Gemara's intention. The Gemara does not seem to suspect the wife of lying outright.

(b) The ME'IRI explains the difference between hunger and war very simply. Hunger affects a person no matter where he is or what he is doing. Even if he dies on his bed of other causes, his hunger causes him to die faster by compounding effects of disease. That is why in a famine, his wife assumes that he died (and testifies "bid'Dami") even if he is in bed due to disease or other natural causes besides hunger. In a war, though, if he is dying from natural causes the war will not affect his health at all. His wife will not assume that he is going to die faster from natural causes during a war than at any other time.

Rashi might mean to say what the Me'iri says, and not like the Maharshal explains. When Rashi says that she thinks that her husband can run away from war, it means that she knows that he might *recover from his illness* in a time of war, because the war does not affect him when he is dying from other causes. But in times of famine, hunger affects and exacerbates disease. Therefore she assumes that her husband will not recover and will die from his illness. (Perhaps the word "Barach" (flee) in Rashi should be "Barya" (he became healthy), with an "Alef" instead of a "Ches." In times of war, a woman assumes that her husband *will recover*, and that is why she does not say that he died unless she knows for sure that he died.)

(c) The RITVA and other Rishonim argue with Rashi and say that the difference between believing a woman in a time of war and in a time of famine has nothing to do with the chances of the husband recovering. The chances are equal under both circumstances. Instead, when the Gemara says that he is dying on his bed, it does not mean from natural causes, but it means that he is dying at home from his battle-wounds. If chances of death are equal in both cases, why is she more believed in a time of war?

The answer is that the reason a woman is not believed is because she testifies "bid'Dami" -- she *assumes* that he died without knowing so for a fact. Why doesn't she wait around to see whether or not he dies? Because she is afraid for *her own* life, and therefore she flees! (This reasoning can be inferred from what the Gemara writes regarding armed robbers, see 115a and Rashi DH Hasam.) If so, even if her husband was wounded in a war, since he is now on his bed and no longer on the battlefield the battle no longer presents a danger, and his wife will stay around and will see whether or not he dies. There is no reason be fear that she will testify "bid'Dami." But in times of famine, the danger presented by the famine affects them even while they are at home. Therefore the wife is still afraid that she herself will die from the famine if she stays there, and so she runs away before seeing her husband's fate.

QUESTION: The Gemara teaches that even though a woman is not believed to say that her husband died in a time of famine (even if she says that he died on his bed of natural causes), she *is* believed to say "he died and I *buried him*." The reason for believing her when she says that she buried him is because when it comes to his actual death, she might conjecture and say "bid'Dami." But she cannot be basing her testimony on conjecture when she testifies that he was buried if she does not know so for sure.

It would seem that in a time of *war*, when the woman is even believed to say that her husband died on his bed of natural causes, she certainly is believed to say "he died (in the war) and I buried him." Indeed, this is the conclusion of most of the Rishonim. The RAMBAM, however, rules differently. The Rambam (Hilchos Gerushin 13:2) rules that she is *not* believed to say that he died and she buried him (see HAGAHOS HA'GRA here).

All of the Rishonim question the Rambam's ruling, for it seems illogical. If a woman is trusted to say that she buried her husband in a time of famine because she will not say "bid'Dami," then in a time of war she should certainly be believed!

The Acharonim suggest a number of approaches to understanding the Rambam:

(a) The KESEF MISHNAH (Hilchos Gerushin 13:1) cites a lengthy Teshuvah of RABEINU ELIYAHU MIZRACHI (#20), who discusses many aspects of the Rambam's rulings regarding Beis Din's acceptance of the testimony of a woman who says that her husband died.

Regarding the Rambam's ruling on the point we are discussing, the Mizrachi (towards the end of his Teshuvah) suggests that in a time of war, it is unusual to have time to bury the dead and it is even more unusual for a woman to bury her dead husband. Everyone is concerned with trying to save their own lives and they flee from the battlefield and do not seek out the dead in order to bury them. Consequently, we have strong reason to assume that the woman is lying if she says that she did something so unusual as to bury her husband who was killed in battle.

(According to this explanation, though, if she says that she buried him after the battle was over, then she should be believed.)

(b) The KESEF MISHNAH cites the Teshuvah of the MAHARI BEN LEV (2:16) after citing the Teshuvah of the Mizrachi. The Mahari ben Lev discusses many of the points raised by the Mizrachi. He offers another explanation for the Rambam's ruling.

He explains that even though a woman is not suspected of lying outright, she is suspected of conjecturing ("bid'Dami") that her husband is dead and then *supporting her conjecture by lying*.

Although this logic is acceptable (and is similar to what the Maharshal writes, see previous Insight), why does the same logic not apply in a time of famine, where she *is* believed to say that he died and she buried him? According to this logic, she should *not* be believed, just like she is not believed in a time of war!

Perhaps the difference between famine and war can be understood based on the way that the LECHEM MISHNAH understands the Rambam. The Lechem Mishnah says that according to the Rambam, the woman is not believed when she says "he died and I buried him" in a time of war or famine only when she says that he died *as a result* of the war or the famine. If, however, she claims that her husband died on his bed, then she is believed when she says "he died and I buried him," both in war and in famine.

Accordingly, she will only lie to strengthen her claim when she is discussing a death due to war or famine, because then she is more certain that he died. But when the husband dies a natural death, she is not so certain that he died, and thus she will not exaggerate and say that she buried him; rather, she will say the facts as they are.

(c) The LEVUSH writes that even when she says "he died and I buried him," we are afraid that she only *assumes* that he was buried when she saw somebody being buried, when it was really somebody else and not her husband. She will say, "bid'Dami," that she buried him, because she does not verify the facts well. In a time of famine we are not afraid that she will make such a mistake about the burial because she is less panic-stricken then she is when there is a war. In a famine, she might mistakenly assume that he died, but she will not think that he was buried when it was someone else that was buried. (See also Insights to 116b, and Rav Yafen's footnotes to the Ritva, Perek 14:3.)