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Kidushin, 36

1) USING A "GEZEIRAH SHAVAH" HALFWAY

QUESTION: Isi (35b) rules that women are exempt from the Lo Ta'aseh of "Bal Yikrechu" (making a bald spot on one's head out of anguish over somebody's death). The Gemara gives various opinions as to what Isi's source is for this exemption. According to Abaye, Isi's source is a Gezeirah Shavah ("Karchah, Karchah") which compares the Isur of Karchah of a Yisrael to the Isur of Karchah of a Kohen (which does not apply to women, as is derived from Vayikra 21:1). According to Rava, Isi's source is a Gezeirah Shavah of "Bein Eineichem," which compares the Isur of Karchah to the Mitzvah of Tefilin (from which women are exempt, as the Gemara derived on 34a).

The Gemara asks why Abaye does not accept Rava's Gezeirah Shavah that compares Karchah with Tefilin. The Gemara answers that Abaye does not accept it because that Gezeirah Shavah is used to teach the a Halachah in the other direction -- to derive the Halachos of Tefilin from the Halachos of Karchah (specifically, that Tefilin must be placed on the upper forehead, just like the Isur of Karchah applies to the upper forehead, and not between the eyes).

The Gemara implies that Abaya accepts the Gezeirah Shavah of Rava ("Bein Eineichim"), but he uses it to teach a different Halachah, and thus he is unable to learn from it that women are exempt from the Isur of Karchah just like they are exempt from Tefilin.

However, there is a rule (Zevachim 48a and other places) that "Ein Gezeirah Shavah l'Machtzah" -- a Gezeirah Shavah cannot be used unilaterally, but must be used bilaterally, to make derivations both to and from each area that is linked by the Gezeirah Shavah. Thus, even if Abaye learns Halachos of Tefilin from the Gezeirah Shavah of "Bein Eineichem," he should also be able to learn Halachos of Karchah from Tefilin through the same Gezeirah Shavah! (TOSFOS DH Tefilin)

ANSWERS:

(a) TOSFOS and the TOSFOS HA'ROSH answer that according to Abaye this Gezeirah Shavah was transmitted *only* with regard to teaching the place on the head where the Tefilin are to be worn.

Tosfos appears to be referring to the rule that a person may not expound his own Gezeirah Shavah, but rather it must be said based on a Kabalah, tradition, from his teachers (who received it from their teachers). A corollary of this rule is that it is possible that one receives a Kabalah to expound a certain Gezeirah Shavah, but the Kabalah itself (or an inference from a verse) teaches that the Gezeirah Shavah is only to be used with regard to certain types of Halachos; the Kabalah limits the Gezeirah Shavah. We find an example of this in Bava Kama (54b, "l'Hanachah Hikashtiv..."; see also Bechoros 53b and Zevachim 22a). The Gemara could just as well have answered that Abaye does not hold of the Gezeirah Shavah of "Bein Eineichem" at all, but we know that he must have had such a Gezeirah Shavah to teach where on the head the Tefilin are to be worn.

(b) The RAMBAN and RITVA explain that although, normally, the rule is "Ein Gezeirah Shavah l'Machtzah," if a Gezeirah Shavah contradicts what is learned from a Hekesh, then we prefer to limit the Gezeirah Shavah and use it only as a partial Gezeirah Shavah (a "Gezeirah Shavah l'Machtzah") and not to contradict the Hekesh (unless nothing else is learned from the Gezeirah Shavah except the Halachah that contradicts the Hekesh). TOSFOS writes a similar explanation in Yoma (60a, DH Chad) and in Zevachim (48a, DH d'Chulei Alma).

(c) The SHITAH LO NODA L'MI suggests that according to Abaye, "Ein Gezeirah Shavah l'Machtzah" applies only to Halachos that are written explicitly in the verses which contain the words of the Gezeirah Shavah. The Halachah that women are exempt from Tefilin is not written explicitly in the verse, but is learned through the Hekesh of Tefilin with Talmud Torah.

(d) The RA'AVAD cited by the Shitah Lo Noda l'Mi answers that the source for the Halachah that the Isur of Karchah applies only when done on the upper part of the head (from which we derive the Halachah that Tefilin are worn on the upper part of the head) is from a verse written with regard to Kohanim. Therefore, it is more logical for Abaye to assume that the Halachah that women are exempt from the Isur of Karchah is also learned from a verse written with regard to Kohanim, rather than from a verse written with regard to Tefilin.

What the Ra'avad means is that we could not even use the Gezeirah Shavah of "Bein Eineichem" to teach that Tefilin is put on top of the head unless we had already made the Gezeirah Shavah of Karchah to teach that Karchah applies on top of the head. Since it is inevitable that we must make the Gezeirah Shavah of "Bein Eineichem," Abaye had the choice of using either one of the two Gezeiros Shavos to teach that women are exempt from Karchah, and he prefered to use the Gezeirah Shavah from Kohanim which is the source for the other Halachos of Karchah (in which Tefilin are compared to Karchah).

QUESTION: Rebbi Yehudah and Rebbi Meir argue whether the Jewish people are called "Banim" (children) of Hashem even when they sin. Rebbi Yehudah learns from the verse, "You are children to Hashem, your G-d" (Devarim 14:1), that only when the Jewish people follow the will of Hashem are they called His "Banim." Rebbi Meir maintains that the Jewish people are always called "Banim," even when they sin, and he cites a number of verses to prove this.

The RASHBA (Teshuvos 1:194 and 242) rules like Rebbi Meir, since so many verses support his view. (According to one Girsa in the SIFRI in Parshas Ha'azinu (#308), Rebbi Yehudah himself might have changed his mind and agreed with Rebbi Meir; see MALBIM to Devarim 14:1.) How, then, can Rebbi Yehudah argue with all of these explicit verses?

ANSWER: The verses that call the Jewish people "foolish children" (Yirmeyahu 4:22) or "children who are destructive" (Yeshayah 1:4) do not pose a challenge to the view of Rebbi Yehudah, since the Gemara itself qualifies the title "Banim" with an adjective (a derogatory one such as "foolish" and "destructive"). Indeed, Rashi explains in Yeshayah (1:4) that the verse there is saying that the Jewish people -- who *used to be* like children -- have now become destructive. The only verse that presents a question on Rebbi Yehudah is the final one which calls them "Bnei Kel Chai," "children of the living G-d" (Hoshea 2:1). However, Rashi explains that this verse is not discussing the status of the Jewish people at the time that they are not following Hashem's will, but rather their status after they do Teshuvah and repent -- *then* they are called "Bnei Kel Chai." It seems from Rashi that Rebbi Yehudah and Rebbi Meir argue whether the Jewish people return to the status of "Banim" when they do Teshuvah after having sinned terribly. (See MAHARIT and SEFER HA'MIKNAH.)

It could be that Rebbi Yehudah and Rebbi Meir are arguing who is greater -- Ba'alei Teshuvah, who sinned and repented, or Tzadikim Gemurim, who never sinned, similar to the argument between Amora'im in Berachos (34b). Rebbi Meir maintains that Teshuvah can entirely erase the sin retroactively, such that the sinner is retroactively called "Banim" even during the time that he was sinning. After he does Teshuvah, he has the added benefit of the Mitzvah of Teshuvah, which a Tzadik does not have, and therefore he is considered greater than a Tzadik who never sinned. Rebbi Yehudah, on the other hand, maintains that the sin leaves some impression, and that the penitent cannot be called a "child" of Hashem at the time that he was sinning, and even after he does Teshuvah he is not at the same level of "Banim" that he was prior to his sin.

Accordingly, it is possible that Rebbi Yehudah and Rebbi Meir actually do not argue at all. Rather, they are discussing two different types of Ba'alei Teshuvah. The Gemara in Yoma (86b) teaches that when a sinner does Teshuvah out of fear of Hashem (Teshuvah m'Yir'ah), his advertent sins ("Zedonos") are considered to have been inadvertent sins ("Shegagos"). When a person does Teshuvah out of *love* for Hashem, his advertent sins become *merits* ("Zechuyos") for him.

Rebbi Yehudah is discussing people who do Teshuvah out of fear. Since it is easy for such people to return to their sins, since they have not reached the level of love for Hashem, they are not called "Banim" even after they do Teshuvah, and, in addition, their sins are still present (albeit they are converted to "Shegagos"). Rebbi Meir is discussing people who do Teshuvah out of love for Hashem. Their sins become "Zechuyos," and they reach a level of closeness with Hashem through their love for Him and there is no fear that they will return to their sins. They thus are considered to be as great as a Tzadik Gamur. (M. Kornfeld)

36b