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Nedarim, 40

1) HALACHAH: HOW TO FULFILL THE MITZVAH OF BIKUR CHOLIM

Earlier (end of 39b), the Gemara quotes Rebbi Acha bar Chanina who states that one who visits a sick person removes one-sixtieth of his pain (or, according to an alternate Girsa, his sickness). The Gemara says that this applies only if the visitor is "Ben Gilo" with the sick person, which the RAN explains to mean that they were born in the same Mazal (the same cosmic influences) and the MEFARESH explains to mean that they are the same age.

The Gemara here records that Rebbi Akiva once visited a sick Talmid who was mortally ill whom no one else visited. Rebbi Akiva had the Talmid's room cleaned and washed, and as a result, the Talmid recovered from his illness. Rebbi Akiva proclaimed that anyone who does not visit a sick person is guilty of spilling innocent blood.

The Gemara then quotes Rav Dimi who says that whoever visits a sick person causes the sick person to recover. The Gemara explains that this is because when one visits the sick person, he prays for the sick person's well-being, and through his Tefilah he "causes" the sick person to recover.

From these three statements, we learn three important practical aspects about performing the Mitzvah of Bikur Cholim:

(a) The RAMBAM (Hilchos Avel 14:4) rules like Rebbi Acha bar Chanina and writes that one who visits a sick person is considered to have taken away part of his illness and helped him to recover. It is clear, though, that this benefit of visiting the sick can only be accomplished by personally visiting the sick.

(b) The RAMBAN (in SEFER TORAS HA'ADAM, p. 17 of the Chavel edition) writes that from the Gemara here (40a) we learn that there are two basic purposes behind visiting the sick. First, one must take care of the physical and emotional needs of the sick person (which we learn from Rebbi Akiva).

(c) Second, the Ramban writes, part of the Mitzvah of Bikur Cholim involves praying for the sick person's full recovery (which we learn from Rav Dimi). The Ramban writes that if one visits the sick and does not pray for him or her, then he does not fulfill the Mitzvah.

The Ramban brings further support that one is required to pray for the sick person from the statement of Rav Shisha. Rav Shisha says that one should not visit a sick person during the first three hours of the day nor during the last three hours of the day, since he will not pray properly for the sick person during those hours (during the first three hours of the day, the sick person appears strong and healthy, while during the last three hours, he looks so ill that one despairs of praying for him). We see that one should time his visit so that he will be able to pray properly for the sick person.

The RAMBAM (Hilchos Avel 14:6) also stresses that the visitor should pray for the recovery of the sick person before he leaves. This is also the Halachah as recorded by the SHULCHAN ARUCH (YD 335:4-6), who also suggests a short prayer to say in the presence of the sick person (see Insight 4 below).

It is clear from the Gemara and the Rishonim that there is a Mitzvah to visit a sick person even if he is not conscious, or even if he is in quarantine, since one is still able to pray for him and to make sure that his needs are being taken care of.

The Gemara earlier (39b) says that there is a Mitzvah to visit a sick person even one hundred times in one day. However, this applies only in a situation where the sick person is interested in the company of the visitor. The RAMBAM (Hilchos Avel 14:4) writes that the more one visits the sick person, the more he is praised, provided that the sick person is comfortable with the visits. This is also the implication of the Gemara later (41a) that says that one should not visit a sick person who has a stomach illness, an eye disease, or headaches, since a person with one of those illnesses finds it uncomfortable to have visitors.

In this vein we might make an interesting inference from the wording of the Rambam there (14:6). When the Rambam describes how to fulfill the Mitzvah of visiting a sick person, he writes that "... one sits near his bedstead, and prays for mercy on his behalf, and leaves." Why does the Rambam mention in his description of how to fulfill the Mitzvah of Bikur Cholim that the visitor "leaves?" The Rambam is stressing that one of the Halachos of Bikur Cholim is to know when to leave!

Similarly, the CHASAM SOFER points out that the Gemara in Bava Metzia (30b) derives the Mitzvah of Bikur Cholim from the verse in Parshas Yisro, "You shall inform them of the path in which they should go..." (Shemos 18:20). The Chasam Sofer writes that we learn from here that when visiting the sick, the visitors must know when "they should go!"

RAV MOSHE FEINSTEIN (IGROS MOSHE YD I:223) writes that there is a Mitzvah to take interest in and pray for the sick even if one does not actually visit the sick in person. However, one does not fully fulfill his obligation of Bikur Cholim without personally visiting the sick. As proof that there is benefit in taking interest in the sick person without actually visiting him, he cites the Gemara earlier (39a) that says that one who is prohibited to receive pleasure from his friend may not enter his friend's house to visit his friend's sick son, but he may express interest and care for his friend's son when he meets his friend in the marketplace. This implies that it is proper to take interest in the sick person if one is unable to visit him personally.

The Gemara quotes Rav Dimi who says that whoever visits a sick person causes the sick person to recover. The Gemara explains that this is because when one visits the sick person, he prays for the sick person's well-being, and through his Tefilah he "causes" the sick person to recover. Moreover, the Gemara says that the Shechinah is above the head of the sick person, and therefore one's prayer for the sick is more readily accepted there. From here the Rishonim and Acharonim learn that one of the purposes in personally visiting the sick is in order to pray to Hashem for his recovery in his presence (see previous Insights).

The Poskim write a number of important Halachos with regard to praying for the sick:

(a) The SHULCHAN ARUCH (YD 335:5) writes that one who visits a sick person may pray for him in any language. This is because -- like the Gemara says -- the Shechinah is present with the sick person, and thus there is no need for the Malachei ha'Shares to have to understand the prayer in order to bring it to the Shechinah (see Shabbos 12b and Insights to Shabbos 12:3). (If one says merely, "May Hashem grant you a complete recovery," he has fulfilled the Mitzvah of praying for the sick person.)

(b) The RAN (DH Ein Mevakesh) writes that we can learn from the conduct of the maidservant maid of Rebbi, as recorded in Kesuvos (104a), that there are times when one is permitted to pray for a sick person to die. However, several conditions must first be met:

1. There is no hope for the sick person's survival. RAV MOSHE FEINSTEIN (IGROS MOSHE CM II:74:4) writes that one may pray for the demise of a sick person only in a case similar to that of Rebbi, in which all of the great Tzadikim of the generation were praying for his recovery but the situation remained unchanged.

2. The sick person must be in extreme pain, similar to the case of Rebbi.

3. Rav Moshe points out further that when the previous two conditions are met, it is only permitted to pray for the demise of the sick person. It is absolutely forbidden to shorten his life actively in any way, but rather we are required to do whatever is necessary to prolong his life, as the SHULCHAN ARUCH (OC 329:4) rules that one is obligated to desecrate Shabbos by doing Melachos in order to prolong the life even of one whose skull has been crushed and will certainly die within a short period of time. When a person is imminently going to die ("Goses"), it is prohibited even to touch him in a manner that might hasten his death (Shulchan Aruch YD 339).

4. One should never give up hope in Hashem's ability to heal the sick, even if there is only a minute chance of survival. The Gemara in Berachos (10a) says that even if a sharp sword is placed upon one's neck, he should not refrain from praying to Hashem for mercy.

40b

OPINIONS: The Gemara discusses how to define a river that expanded (swelled) as a result of the rains. Rav says that the increased size of the river is treated like rainwater, and Shmuel says that it swells from its source and is therefore still considered natural river water. According to Rav, one may not use such a river as a Mikvah, since the water therein has the status of rainwater and the only time rainwater may be used for a Mikvah is when it is gathered in one place and not flowing. According to Shmuel, on the other hand, the river may still be used for Tevilah, because it is treated like a natural stream, and a natural stream is valid for Tevilah when it is flowing.

The Gemara says that Shmuel himself did not rely on his own opinion in practice, and he said that one should not immerse in the Euphrates River except during the season of Tishrei, since there is no concern for rainwater at that time of year. The Gemara also relates that Shmuel's father also made special Mikva'os for his daughters in the month of Nisan (when the rivers expanded from the rainwater) in order for them to have a place to immerse.

In practice, may one use a river as a Mikvah for Tevilah?

(a) RABEINU TAM rules that one may rely on Shmuel's initial statement, since it is supported by a Gemara in Bechoros (55a) that says that the Euphrates River is called "Pras" because its waters are fruitful (Parin) and multiply.

(b) The RACH and RIF disagree with Rabeinu Tam. The RAMBAN writes that we may not rely on the Gemara in Bechoros to resolve the Halachic dispute here, because a Gemara of Agadah cannot override a Sugya that discusses the practical Halachah (see next Insight).

HALACHAH: The REMA (YD 201:2) writes that if there is no Mikvah in the area, there is an accepted custom to rely on Rabeinu Tam's ruling that one may immerse in a river throughout the year, provided that it is known that the river flows even during the summer months when there is no rain.

In practice, though, one must bring each question to a competent rabbinical authority, since the situation is different in each time and place. Moreover, there are additional problems involved with using the water at a beach as a Mikvah (e.g. see the RAN who writes that Shmuel's father had to make mats in order to prevent problems of Chatzitzos. He also cites those who say that there is a need for a partition for purposes of modesty; see also Nidah 66b).

OPINIONS: The RAN quotes the RAMBAN who says that we cannot overrule a Halachic practice based on opposing evidence from Agadah.

When can we use Agadah to determine Halachic practice? There is a disagreement among the Acharonim regarding this issue.

(a) The NODA B'YEHUDAH (Yoreh Deah II:161) writes that we cannot learn any Halachos from Agadah, even when there is no contradiction to them from any Halachic Sugya in the Gemara. He explains that the Agados were written in order to teach us principles of Musar and fundamental concepts of Torah, but not to teach practical Halachah.

RAV HAI GAON (in Otzar ha'Geonim, Chagigah Siman 67) seems to be of this opinion.

(b) REBBI AKIVA EIGER (on the Mishnayos in Berachos, Perek 5) quotes the PRI CHADASH who disagrees and says that although it is true that we do not rely on Agadah in order to resolve Halachic disputes that were not resolved in the Gemara, we *may* rely on Agadah to resolve a question of Halachic practice that was *not* discussed in the Gemara.