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Gitin, 70

1) HALACHAH: GIVING MEDICAL TREATMENT TO A "NOCHRI"

QUESTION: The Gemara relates that Rav Simi treated an idolater who was suffering from leprosy with a remedy that the Gemara prescribes, and the idolater was healed of his illness.

How could Rav Simi give medical treatment to a Nochri? The Gemara in Avodah Zarah (26a) says that it is prohibited for a midwife or a nurse-maid to render her services to a Nochri child, because she is thereby enabling that child to grow up to serve idols! (TOSFOS in the name of RABEINU ELCHANAN)

ANSWERS:

(a) The ME'IRI (in Avodah Zarah), the DARCHEI TESHUVAH (YD 158:2) and others (see RASHBA, Teshuvos 1:8 and as cited by the Beis Yosef in YD 154) write that the prohibition of the Gemara in Avodah Zarah applies only to treating Nochrim who actually serve idols. A Jew is permitted to give medical treatment to a Nochri who does not serve idols.

(b) The RI, cited by Tosfos, answers that perhaps it was permitted for Rav Simi to treat the Nochri because he needed to practice this medical treatment in order to know how to administer to it to Jews who might have the same illness. To practice a medical treatment on a sick Nochri is permitted.

(c) TOSFOS answers further that if the Nochri knows that the Jewish medical practitioner is an expert in the treatment of his illness, the Jewish doctor is then obligated to treat the Nochri in order to prevent malice ("Eivah") of the Nochri towards the Jews.

This is also the way the RAMBAM rules (Hilchos Avodah Zarah 10:2). The Rambam, though, adds a second condition that is necessary to permit a Jew to treat an ill Nochri. He adds that even when there is concern for malice, it is still prohibited for the Jew to treat the Nochri unless the Jew takes a fee for treating the Nochri. Likewise, even if the Jew takes money, he may not treat the Nochri unless there is concern for malice. (The D'VAR YAKOV cites the YAD DAVID who says in the name of the SEMAG that the Rambam himself relied on this Gemara as his source for becoming a doctor in Egypt, where he treated Nochrim. The YAD DAVID himself says, like the Me'iri and others, that even though there was no concern for malice in the Rambam's case, it was permitted for the Rambam to treat Nochrim because they did not serve idols.)

The RAMBAN (in Toras ha'Adam) rules this way as well, prohibited a Jew from treating a Nochri where there is no "Eivah," even if the Jew would receive money for it. However, where there will definitely be "Eivah," a Jew may treat a Nochri *even for free* (whereas the Rambam permits it in such a situation only when the Jew receives money for his services). (The Ramban derives this from the Gemara earlier in Gitin (61a) which says that we visit the sick of the Nochrim just like we visit the sick of the Jews, and visiting the sick is a form of healing, as the Gemara in Nedarim teaches.)

(It is interesting to note that the TZITZ ELIEZER (17:6) asks how could Elisha the prophet have cured Na'aman from his leprosy, as Na'aman was a Nochri? He answers that in the case of Elisha, there was a great Kidush Hashem involved, and therefore it was permitted for him to cure Na'aman.)

(d) Tosfos answers further that perhaps to heal an adult Nochri from his illness is not the same as tending to an infant. In the case of treating an infant, the Jew is actually helping to raise the child who will serve idols. In contrast, an adult is already an idol-worshipper, and the Jew will not be helping him become an idol-worshipper by providing treatment for his illness; the Jew is merely helping to remove illness or risk of death, and is not playing an active in bringing the Nochri to serve idols.

HALACHAH: The SHULCHAN ARUCH (YD 158:1) rules that a Jew may not provide medical treatment to a Nochri even if he receives money for it, unless there is concern for "Eivah." The REMA, however, rules like the RAMBAN who says that when there definitely will be resentment against the Jews if a Jew does not treat a Nochri, then it is permitted to treat a Nochri even for free.

(All of this applies to rendering medical treatment to a Nochri on a weekday. Regarding transgressing the laws of Shabbos in order to give medical treatment to a Nochri, there are various other Halachos which are not within the scope of this Insight.)

QUESTION: The Gemara says that one who is at a meal in which the food entices him should hold himself back and refrain from it.

RAV ELIYAHU DESSLER (Michtav me'Eliyahu 4:268) asks that this seems to contradict the Yerushalmi at the end of Kidushin which states that a person will be judged (and punished) for all of the pleasures of this world that were presented to him to eat and from which he did not partake. (That is, Hashem created food to be eaten and enjoyed, so that man would feel gratitude to his Creator, and thus one should not refrain from eating and appreciating Hashem's provision of food for him.) In addition, the Gemara in Ta'anis (11a) also says that one who fasts is considered a sinner.

ANSWERS:

(a) RAV DESSLER answers that there are two types of people. The first type is the person who is attracted to physical pleasures. Such a person should make guidelines to distance himself from indulgence in worldly pleasures. The second type is one who is in control of his desires for worldly pleasures. Such a person should partake in acts of eating tasty foods so that he will be able to appreciate Hashem's creations and thank Hashem for them.

(b) An alternate way of resolving this apparent contradiction is as follows. The Yerushalmi is telling us that it is not commendable to refrain from eating various foods, since such a person will not appreciate Hashem's goodness. On the other hand, our Gemara is talking about one who is eating a meal and enjoying it already; such a person, our Gemara instructs, should not over-indulge, but rather he should stop eating before he finishes all that is there. RASHI seems to explain the same way when he writes that one should not "fill his stomach" from the meal he enjoys.

The EIN MISHPAT also seems to understand the Gemara in this manner, since he refers to the RAMBAM in Hilchos De'os (4:15) who also writes that over-eating is unhealthy. The Rambam quotes the verse, "One who watches over his mouth and tongue protects himself from troubles (Tzaros)" (Mishlei 21). He explains that Shlomo ha'Melech is telling us that one who restrains his mouth from over indulgence in food and his tongue from talking unnecessary talk will protect himself from "Tzaros."

70b

OPINIONS: Rebbi Yochanan and Reish Lakish disagree regarding whether a Get may be given to a man's wife in a case where the man gave a command to write and give a Get to his wife and subsequently lost his sanity as a result of the Kurdiykus sickness. Rebbi Yochanan says that the Get may not be given until the man's sanity returns, just like a Get may not be given for a Shoteh. Reish Lakish disagrees, arguing that one who has the Kurdiykus sickness can be cured and therefore his lack of sanity is similar to one who is sleeping, who can have the Get delivered for him by a Shali'ach; he is not similar to a Shoteh who has no known cure for his condition.

We see that both Rebbi Yochanan and Reish Lakish agree that a Get may not be given for a man who becomes a Shoteh, even when he commanded the Shali'ach to deliver the Get before he became a Shoteh.

Is this Halachah -- that a Get given on behalf of a man who became a Shoteh is invalid - mid'Oraisa or mid'Rabanan?

(a) The TUR (EH 121) maintains that if a Get is given on behalf of a man while the man is a Shoteh, the Get is Pasul mid'Oraisa.

(b) The RAMBAM (Hilchos Gerushin 2:15) writes that if a man who is not sane gives a Get before he returns to his sanity, the Get is "Pasul," invalid. The Acharonim point out that the term "Pasul" implies that it is only Pasul *mid'Rabanan*.

The BEIS YOSEF and the SHULCHAN ARUCH (EH 121:2) understand that the Rambam maintains that the Get is Pasul mid'Rabanan only in a case where the man was insane as a result of the Kurdiykus sickness. If, however, the man was a Shoteh, then the Rambam would agree that the Get is Pasul *mid'Oraisa*. His logic is that even though Rebbi Yochanan says that one who has the Kurdiykus sickness cannot give a Get, still he admits that this is only a Pesul d'Rabanan since this illness has a remedy.

Other Acharonim (See BEIS SHMUEL, CHELKAS MECHOKEK, VILNA GA'ON, ibid.) disagree with the Beis Yosef's interpretation of the Rambam. Their logic is that since Rebbi Yochanan does not differentiate between a mental illness that has a remedy and one that does not have a remedy, there is no reason to assume that one who has a remedy is only Pasul mid'Rabanan from giving a Get. They understand that according to the Rambam, even if one sent a Shali'ach to give a Get to his wife and then became a Shoteh, the Get is only Pasul mid'Rabanan, and the Rambam disagrees with the view of the Tur that it is Pasul mid'Oraisa.

There are various explanations of the logic behind this Machlokes between the Rambam and the Tur.

Some Acharonim (OR SAME'ACH, Hilchos Gerushin 2:15, AFIKEI YAM 2:44) explain that the Machlokes is based on different ways of understanding the nature of Shelichus. The Rambam understands that a Shali'ach completely represents the one who sent him in the transaction. Since it is the mind of the Shali'ach that is causing the transaction to take place, we are not concerned with the fact that the one who sent him is now a Shoteh. In contrast, the Tur understands that appointing a Shali'ach is only a way of extending the sender's ability to do the act. Therefore, the mind of the sender is the one that causes the transaction to take place, and if he becomes a Shoteh, the Shali'ach cannot carry out the mission.

The Yerushalmi (quoted by the RAN) says that Rebbi Yochanan and Reish Lakish will disagree in a case where one gives a Get to his wife with the stipulation that it should take effect in thirty days, and then he becomes ill with the Kurdiykus sickness within those thirty days. We see that the Yerushalmi equates the Get given by a Shali'ach when the sender has become a Shoteh to a Get that has been given but will only take effect when he is a Shoteh. If we can equate the two situations, then we can infer that the matter of a Shali'ach giving a Get for one who became a Shoteh is not a matter of the laws of *Shelichus* per se, but rather it is a matter of the necessity of the husband to be sane at the time that the Get takes effect, even if he completed his act before he became insane (that is, it is a matter of the laws of *Get* and not of Shelichus).

Based on this, RAV SHMUEL ROZOVSKY and others learn that the Machlokes of whether or not a Get may be given (mid'Oraisa) on behalf of a Shoteh is based on their understanding of the reason why a Shoteh cannot give the Get himself. The Rambam learns that a Shoteh cannot carry out a transaction when there is a need for his Da'as, for his understanding and soundness of mind. In a case where the Da'as of the Shali'ach is involved, such as when the Shali'ach gives the Get, or when the Get was already given when the husband was sane and will only take effect when he is a Shoteh, there is no reason for the Get *not* to take effect. In contrast, the Tur understands that it is impossible for any transaction to take place for one who does not have Da'as at the time that the transaction should take place, and therefore if the man is a Shoteh at that time, the Get will not take effect even though someone with Da'as is carrying out (or has carried out) the act. (E. Kornfeld)