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Kesuvos, 60

1) "THOSE WHO WALK ON TWO LEGS"

QUESTION: The Gemara discusses the status of blood and milk of a human being -- "Mehalchei Shtayim" ("those who walk on two [legs]") -- with regard to whether one may eat or drink them. Why does the Beraisa refer to a person as "Mehalchei Shtayim" in this instance, instead of simply calling him a "person" ("Adam")? (TOSFOS YOM TOV, Bikurim 2:7)

ANSWERS:

(a) The TOSFOS YOM TOV (Bikurim 2:7) answers that the term "Adam" sometimes refers only to a Jew. Hence, had the Gemara used the term "Adam" we might have mistakenly thought that these laws apply only to the blood and milk of a Jew. The Gemara uses the term "Mehalchei Shtayim" to make it clear that we are referring to all persons. (The RISHON L'TZION asks that Tosfos points out in many places that when the term "ha'Adam" (with the prefix "Ha") is used, it includes all humans, both Jews and others; if so, the Beraisa could have simply used the term "ha'Adam!")

(b) The TIFERES YISRAEL quotes RAV YAKOV EMDEN, who explains that the term "Mehalchei Shtayim" was used in order to include in this category the "Adnei ha'Sadeh" (a creature referred to in Kil'ayim 9) which also walks on two legs like man, and which, according to some, is Metamei b'Ohel like man (see Insights to Bechoros 8:1)

(c) The BEIS DAVID explains that since the Gemara discusses animals in the same context here as it discusses man, it felt that it would be degrading to use the term "Adam" (as if to say that "Adam" is just another species of animal; in order to avoid referring to "Adam" when relating solely to the animalistic, non-reasoning qualities of man, it used the term "Mehalchei Shtayim").

QUESTION: The Gemara rules that if a gutter pipe on the roof of one's house becomes clogged, causing water to flood the roof and drip into the house, a person is permitted to kick away the debris, covertly ("b'Tzin'a," in private), in order to unclog the pipe. It is not appropriate to do so publicly, seemingly because those who might see him doing it might not realize that he is doing it in order to clear out the pipe to prevent a loss, and they will think that he is fixing his pipe on Shabbos which is Asur (because of Metaken).

There is a general rule, put forth by Rav in Beitzah (9a), that "anything that is prohibited by the Rabanan is prohibited even in the innermost chambers." The Gemara's ruling here, though, seems to contradict that rule, for it permits doing an Isur d'Rabanan in private! How can our Gemara be reconciled with that rule?

ANSWERS:

(a) A number of Rishonim rule, based on this and similar statements in the Gemara, that the Halachah does not follow Rav, and it is permitted to do something that others will think is Asur (but which is really permitted) in private but not in public. (RAV NISIM GAON, cited by Tosfos Avodah Zarah 12a DH Kol Makom and by the Rosh in Shabbos 22:9, RABEINU EFRAIM, cited by the Itur, Hilchos Yom Tov section 4, the BA'AL HA'ME'OR in Beitzah 4b and Shabbos 28b according to the pages of the Rif, the RA'AH, in Beitzah 9a)

The Rishonim prove that Rav's opinion is not accepted l'Halachah from the Yerushalmi (Kil'ayim 9:1).

(b) Most Rishonim (RIF, Shabbos 146b, RAMBAM Hilchos Shabbos 22:20, Hilchos Yom Tov 5:4, and others), though, rule in accordance with Rav's prohibition, and they differentiate between the case of our Gemara and the cases to which his rule applies. For example, the Gemara in Beitzah (9a) cites a Beraisa in which the Tana Kama permits spreading out clothes to dry in the sun on Shabbos when it is done in a private place. Spreading out clothes to dry in a public area, though, is prohibited because of "Mar'is ha'Ayin," because people will suspect that the person is not only drying his clothes on Shabbos, but that he washed his clothes on Shabbos as well. Rebbi Elazar and Rebbi Shimon prohibit spreading out one's clothes even in private, because they hold that whenever there is a concern for Mar'is ha'Ayin, the act is prohibited even in the innermost chambers of one's home.

1. TOSFOS here explains that in our Gemara, even if one is fixing his pipe in a manner that is not prohibited, he is only transgressing an Isur d'Rabanan by fixing it, since he is doing it in an unusual manner (with his foot). Therefore, the Rabanan did not prohibit it when done in private. The case in Beitzah, on the other hand, is where people will suspect that he did something that is Asur *d'Oraisa*, and therefore the Rabanan prohibited it even in the innermost chambers.

2. Others note that there is a basic difference between the problem of Mar'is ha'Ayin in the case in Beitzah and the Mar'is ha'Ayin in the case of our Gemara. In Beitzah, the person did not actually wash his clothes on Shabbos. Rather, the concern is that people might mistakenly conclude that since he is setting his clothes out to dry, he also washed them. In our Gemara, the person actually *did* fix his pipe on Shabbos, an act that might have been prohibited had he not done it to save himself from a significant loss, but people might not realize that he is doing it to prevent damage to his house. The prohibition not to do something that is Asur because of Mar'is ha'Ayin even in one's most private room applies only to the former type of Mar'is ha'Ayin -- where people think that a person is doing something other than what he is actually doing. The reason for this difference is explained differently by the Rishonim.

The RASHBA (Beitzah 9a) uses this observation to differentiate between two types of Mar'is ha'Ayin. If a person is doing a permissible act, but people who see think that it is a prohibited act, we allow it to be done in one's innermost chambers. Cleaning out the pipe to prevent a deluge in the house looks prohibited but is actually permitted. In contrast, if people who see him will suspect him of doing something that is not permitted under any circumstances, then the Rabanan are more stringent and prohibit the act even in one's innermost chambers.

3. The RAN (Beitzah 9a) also differentiates between two types of Mar'is ha'Ayin, but based on different reasoning. He says that when an act is permitted by the Torah and the Rabanan prohibited it because others will think that the person is doing something wrong, it becomes prohibited even in one's innermost chambers. In the case of our Gemara, though, the opposite logic applies. The act of cleaning a pipe is an act that is normally *prohibited*. Here, the Rabanan are lenient and permit cleaning the pipe in order to save the person's house and his enjoyment of Shabbos. In such a case, it was necessary for the Rabanan to permit the act, but because of "Mar'is ha'Ayin" they limited the permit to doing it in private. Prohibiting it in all cases is not an option, because they saw a necessity to permit it.

HALACHAH: Rav's Halachah is cited by the SHULCHAN ARUCH (OC 301:45), based on the rulings of the Rif, Rambam and others (opinion (b), above).

60b

QUESTION: The Gemara says that Rav Nachman permitted women of the family of the Reish Galusa (the exilarch) who were widowed or divorced to remarry while they had a nursing baby on condition that they hired a nursemaid ("Menekes") to nurse the child. For those women, Rav Nachman suspended the normal prohibition that the Rabanan instituted prohibited a nursing woman to remarry before twenty-four months pass from the time of the birth of the child. His reasoning was that there was no fear that the baby would be left without a nursemaid, for no nursemaid would quit her job if she was working for the powerful family of the Reish Galusa.

The Gemara proves from a Beraisa that it is normally prohibited for a woman to remarry within twenty-four months even if she gives her baby to a nursemaid. The Beraisa discusses "Havchanah" -- the requirement for a woman to wait three months before remarrying after a divorce or after the death of her husband. The reason she may not remarry within three months is because she might be pregnant and if she marries before three months have passed, it will not be possible to determine the identity of the child's father -- the first or second husband. However, the Beraisa says that even if the woman clearly could not have children from the first husband (such as a woman whose husband was out of town or in prison, or was old, or she was barren, etc.), she still must wait three months before remarrying. From that Beraisa we see that when the Rabanan enact a prohibition for a reason, the prohibition still remains in force even in cases where the reason does not apply ("Lo Plug Rabanan").

If the prohibition applies even where the reason does not apply, though, how could Rav Nachman permit the women of the family of the Reish Galusa to remarry within twenty-four months? Moreover, the Gemara says that a nursing mother may not remarry within twenty-four months even if the child dies within that time, because of the concern that a cruel mother might kill her child in order to remarry right away. Why does the Gemara have to give a reason to prohibit her from remarrying if her child dies? It should be prohibited because of the "Lo Plug" element -- the prohibition applies even when the reason does not apply, just like the prohibition applies even where the woman gives her child to a nursemaid!

ANSWERS:

(a) TOSFOS explains that if a woman stops nursing because her baby died or because she gave the baby to a nursemaid, the enactment that a nursing mother may not marry within twenty-four months no longer applies to her. The only reason the Rabanan prohibited such women from remarrying so soon in the case where the baby died was because of a Gezeirah that a mother might kill her baby; in the case where she gave the baby to a nursemaid, the prohibition of remarrying is because of a Gezeirah that the nursemaid might give the baby back to the mother. When a member of the family of the Reish Galusa gives a baby to a nursemaid there is no such concern, and that is why the women of the family of the Reish Galusa were permitted to remarry after giving the child to a nursemaid.

The MAHARSHA points out that the answer of Tosfos is very difficult to understand. If the concept of "Lo Plug" does not apply to a woman who gives her baby to a nursemaid, then why does the Gemara prove from the fact that the Rabanan prohibited a barren woman from remarrying within three months after being divorced or widowed that it is prohibited for a nursing mother to remarry within twenty-four months even when she gives the child to a nursemaid? Tosfos says that we do *not* apply "Lo Plug" when a child is given to a nursemaid! Moreover, why indeed does "Lo Plug" not apply when the child is given to a nursemaid?

The RITVA and TOSFOS HA'ROSH explain the answer of Tosfos more clearly. They say that "Lo Plug" does not apply when there is a *clearly recognizable difference* between a specific case and a general case that is normally prohibited. For example, when a child dies, it is clear to all that the child is not alive and is not nursing, so "Lo Plug" does not apply. Therefore, the mother may remarry right away. Similarly, if a woman from the family of the Reish Galusa gives over her child to a nursemaid, everyone knows that the nursemaid is afraid to break the agreement, and the baby is assuredly in good hands. In contrast, when a woman from a normal family gives her baby to a nursemaid to be nursed, she still may not remarry right away because the nursemaid might go back on the deal.

When a woman who is not from the Reish Galusa's family gives her baby to a nursemaid, and the nursemaid makes an *oath* that she will not break the agreement -- may the woman remarry? Since she makes an oath, there is no longer any concern that she will break the agreement, and therefore the mother should be able to remarry! The Gemara says that in such a case, "Lo Plug" *does* apply, and it proves this from the fact that it applies to the requirement of Havchanah. The reason is because it is not clear and known to all that the nursemaid made an oath not to break her agreement, and therefore the mother may not remarry for twenty-four months.

(b) RASHI (DH b'Gezeirosav) does not seem to accept this reasoning. Rashi writes that the rule of "Lo Plug" teaches us that a woman who gave birth may not remarry for twenty-four months whether she is nursing the child or not. It seems from Rashi that the "Lo Plug" here does not tell us not to differentiate between a nursemaid who took an oath and a nursemaid who did not take an oath. Rather, Rashi understands the Gemara in its simple sense, that "Lo Plug" teaches us not to differentiate between a mother who is nursing and a mother who is not nursing for whatever reason. Why, then, should the women of the Reish Galusa's family be permitted to remarry right away, and why should a woman whose child died be permitted to remarry (if not for the concern that she might kill her child)?

The answer might be that according to Rashi, "Lo Plug" does not create a blanket, all-encompassing prohibition. Rather, "Lo Plug" creates a prohibition (where the reason for the prohibition does not apply) only in cases where the cause for the original enactment is still applicable to at least a minimal extent. Therefore, in order to prohibit a mother from remarrying because of "Lo Plug," there must be some possibility that she will need to continue nursing her child (or a similar concern, such as a concern that she might kill the child). Since the women of the Reish Galusa's family have absolutely no cause for concern, "Lo Plug" does not apply.

This explanation may be derived from the words of Rashi (DH Harei she'Haysah). Rashi writes concerning all the women who are prohibited to remarry because of Havchanah that "it is *not common* for them to become pregnant," implying, however, that it is remotely possible (i.e. that a Ketanah, or an elderly woman, or a woman whose husband is in prison, could become pregnant from her husband). That is why the Rabanan prohibited her immediate remarriage due to "Lo Plug." (In the case of an Akarah, a barren woman, the Rabanan might have prohibited a woman from remarrying within three months because of the concern that a healthy woman might make herself an Akarah in order to remarry.

Accordingly, if a nursing mother gives her child to a nursemaid and the nursemaid makes an oath that she will faithfully nurse the child, then perhaps it is permitted for the mother to remarry within twenty-four months. The RITVA indeed cites such an opinion. (M. Kornfeld)