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Sanhedrin, 82

1) THE PROHIBITION OF "ZONAH" FOR ONE WHO LIVES WITH A "NOCHRIS"

OPINIONS: Rav Dimi states that the Beis Din in the times of the Chashmona'im decreed that having relations with a Nochris is forbidden by four prohibitions: Nidah, Shifchah, Goiyah, and Ishus. Ravin agrees with the first three, but says that the fourth prohibition was not Ishus but Zonah.

RASHI explains that even though a Nochris who sees a flow of blood does not have the status of a Nidah, nevertheless the Beis Din declared that having relations with her is a violation of the prohibition of Nidah due to the disgusting nature of the act and the Chilul Hashem involved. The reason she is prohibited because of Shifchah is because the Jewish people are called "Gevirah," or masters, and thus the Beis Din prohibited living with a Nochris with the same prohibition that forbids a Jew from living with a Shifchah Kena'anis. The Beis Din added the prohibition of marrying a Goiyah as well, because of the Torah prohibition against marrying Nochrim ("Lo Sischaten Bam"); they extended that Torah prohibition to include having relations with a Nochris even without intention to marry her. They considered a Nochris to be an Eshes Ish, since, like an Eshes Ish, she is a woman from whom one must stay away.

Ravin explains that there is also a prohibition of Zonah. Unlike all of the above, there is no prohibition called "Zonah" for most Jewish men. The only such prohibition we find is that a Kohen is not allowed to marry a Zonah. What, then, is the basis for the prohibition of Zonah that the Beis Din added in the case of a person who lives with a Nochris?

(a) TOSFOS says that this prohibition indeed is only for a Kohen who lives with a Nochris, and it does not apply to a Yisrael who lives with a Nochris. This is also the opinion of RASHI in Avodah Zarah (36b).

(b) The RAMBAM (Hilchos Isurei Bi'ah 12:2-3) argues that this prohibition applies to every Jew. He further states that a Kohen in such a situation transgresses the *Torah* prohibition of Zonah, and not just the prohibition enacted by Beis Din.

What is the basis of the argument between Tosfos and the Rambam?

The ARUCH LA'NER explains that the Rambam explains our Gemara based on his opinion (Hilchos Ishus 1:5) that according to the Torah, any Jewish man who has relations with an unmarried Jewess outside of marriage is punished with Malkus (see Insights to Sanhedrin 21:1). He understands that this is the intention of the verse when it states, "Lo Siheyeh Kedeshah" (Devarim 23:18). It follows that according to the Rambam the Rabanan would enact a similar prohibition of Zonah to prohibit a Jewish man from living with a Nochris.

Tosfos, on the other hand, as well as Rashi and the Ra'avad, who maintain that there is no Torah prohibition of living with an unmarried Jewish woman (as long as she is not a Nidah) outside of marriage, do not learn that there is any Torah prohibition to which to compare this act, and thus the closest Torah prohibition that they have is the Isur of a Kohen to marry a Zonah. Therefore, they understand that the Isur d'Rabanan of Zonah involved with living with a Nochris applies only to a Kohen. (Y. Montrose)

QUESTION: Rebbi Yochanan states that if Pinchas would have killed Zimri *after* Zimri was no longer with the Nochris (and not during the act), then he would have been Chayav Misah and Beis Din would have executed him for Retzichah, murder. This is because the law of "Kana'in Pog'in Bo" applies only during the act of sin. Furthermore, if Zimri would have killed Pinchas in self-defense when Pinchas was coming to kill him, he would *not* have been guilty of murder, since Pinchas was considered a "Rodef" who was pursuing Zimri in order to kill him.

How can it be that the Torah sanctions killing a sinner ("Kana'in Pog'in Bo"), while at the same time it permits the sinner to kill the righteous person (as a "Rodef")? Does this mean that every sinner who puts himself in danger because of his sins has the right to defend himself?

ANSWERS:

(a) The RAN explains that even though the zealous person is doing the will of Hashem, *Beis Din* cannot give permission to a person to act this way. The Gemara earlier quotes Rav Chisda who states that if someone asks Beis Din what to do in such a situation, the Beis Din may not tell him to go and kill the offender. In contrast, when a person is pursuing someone else in order to kill him, if someone asks Beis Din what he should do, Beis Din certainly tells him to hunt down the killer and stop him before he kills. In that case, the Rodef has no right to defend himself by killing the person trying to stop him; rather, the Rodef must desist from his pursuit of his intended victim. In the case of a man who is sinning with a Nochris, since Beis Din does not kill him, it is considered as though he is not liable to death at the hands of anyone. Consequently, even though the Torah permits a zealous person to kill him, he is allowed to defend himself and kill the zealous person who pursues him.

(b) The YAD RAMAH qualifies the status of "Rodef" as it applies to the zealous person. Even though the Gemara calls this zealous person a Rodef, he is not classified as a normal Rodef whom everyone is allowed to kill. He is different because he has permission from the Torah to kill the sinner. Therefore, only the *sinner himself* is allowed to kill him in self-defense. He explains that this is based on logic. Everyone is allowed to kill the sinner if they wish to be zealous. The only person who cannot kill the sinner is the sinner himself. Therefore, only he is allowed to defend himself. This is also the opinion of the ROSH here and the TUR (CM 425). (Y. Montrose)

OPINIONS: Rebbi Yochanan states that if Pinchas would have killed Zimri *after* Zimri was no longer with the Nochris (and not during the act), then he would have been Chayav Misah and Beis Din would have executed him for Retzichah, murder. This is because the law of "Kana'in Pog'in Bo" applies only during the act of sin. Furthermore, if Zimri would have killed Pinchas in self-defense when Pinchas was coming to kill him, he would *not* have been guilty of murder, since Pinchas was considered a "Rodef" who was pursuing Zimri in order to kill him.

The MISHNEH L'MELECH (Hilchos Rotze'ach 1:15) answers a Halachic question based on our Gemara. The Torah teaches that there is a law of "Go'el ha'Dam" -- a person whose relative was killed by accident has the right to kill his relative's killer as long as the killer did not yet reach an Ir Miklat. If, when the Go'el ha'Dam attempts to kill the unintentional killer, the killer defends himself and kills the Go'el ha'Dam, is he guilty of murder? The Mishneh l'Melech answers that he is not guilty, and he proves this from our Gemara which says that Zimri would not have been guilty had he killed Pinchas.

(a) The Mishneh l'Melech asks another question in this regard. When a Rodef is pursuing his victim in order to kill him, and other people attempt to kill the Rodef in order to stop him, may the Rodef kill those other people in self-defense? The Mishneh l'Melech answers that he may not kill the others, since, in this case, it is a Mitzvah for everyone to kill the Rodef.

The CHIDUSHEI HA'RIM (Choshen Mishpat, Teshuvah 7) does not understand the question. Killing even a Rodef is permitted only if one cannot stop the Rodef in any other way, such as by injuring him. If the Rodef can stop the person who is trying to kill him in another manner, other than by killing him, then how is it possible that he would not be guilty of murder if he kills his pursuer instead? In the case of a person chasing a Rodef, the Rodef simply has to stop trying to kill his intended victim in order to stop the other person from pursuing him!

The KLI CHEMDAH answers that the same question may be asked on our Gemara. The Gemara states that Zimri would not have been guilty of murder for killing Pinchas. Why would he not have been guilty of murder? Zimri had another way to stop Pinchas from pursuing him -- he simply could have stopped doing his sin! The Kli Chemdah asserts that it must be that someone doing a sin is considered unable to stop what he is doing (it is like a case of "Ones"). Consequently, from the logic of the Chidushei ha'Rim we cannot prove that a Rodef who kills his pursuer is guilty.

(b) The IMREI EMES rejects the Kli Chemdah's answer based on the words of the TARGUM YONASAN. The Targum Yonasan writes that a Mal'ach forced Zimri to stay together with Kozbi, preventing him from pulling away and being free from being killed. Therefore, Zimri would have been innocent had he killed Pinchas, as there was no other way to defend himself.

Perhaps the Kli Chemdah maintains that Zimri's claim that a Mal'ach was forcing him to stay with Kozbi would not have been an acceptable claim in Beis Din, and thus Zimri would have been Chayav Misah for killing Pinchas. We know from the concept of "Ein l'Dayan Ela Mah she'Einav Ro'os" (a judge may rule only based on the evidence which he sees) that such claims are probably not acceptable in a Beis Din (see MAHARSHA to Bava Basra 119a with regard to Tzelofchad). Therefore, it is possible that such a person may be called an "Ones." (Y. Montrose)

(c) RAV ELAZAR MOSHE HA'LEVI HOROWITZ gives a different answer to the Kli Chemdah's question on our Gemara. Zimri was not able to stop doing his sin for a different reason. There is a Halachah (Horiyos 8b) that states that a man is prohibited from being "Poresh Im Ever Chai." Thus, Zimri could not have stopped his Aveirah in the middle in order to prevent Pinchas from killing him; he had to carry through with his act. Even though he should have stopped in order to save his life, since stopping would have involved an Isur of Giluy Arayos for being "Poresh Im Ever Chai," Zimri was obligated to let himself be killed -- "Yehareg v'Al Ya'avor" -- and not transgress that Aveirah. Hence, he had no choice but to kill Pinchas in order to save himself, and thus he would not have been guilty of murder.

82b

QUESTION: Rebbi Yochanan says that six miracles happened to Pinchas in his zealousness to kill Zimri. First, Zimri did not stop sinning even though he could have avoided death by stopping. Second, he did not cry out for help to the people of his tribe, the tribe of Shimon. Third, the spear which Pinchas thrust at them pierced both of them in the area of the body with which they were sinning, so that everyone would realize that Pinchas was justified in killing them. Fourth, their bodies stayed attached to the spear. Fifth, an angel came and raised the door of the tent so that Pinchas could bring them out while they were still impaled on the spear, instead of having to lower the spear and causing them to fall off. Sixth, some of the people were struck by an angel. RASHI explains that this last miracle kept the people preoccupied so that they would not notice that their leader was being killed.

The TOSFOS YESHANIM argues and says that this was not the sixth miracle. Rather, the next statement in the Gemara is expressing the sixth miracle. The Gemara says that Pinchas slammed their bodies into the ground and declared, "Because of these people, twenty-four thousand people should die?!" The fact that the Mal'achim did not harm him, and his harsh words directed to Hashem were accepted, was the sixth miracle.

The Targum Yonasan, Sifri, and Yerushalmi list many other miracles that happened to Pinchas. The Yerushalmi, however, implies that in light of all of these miracles, Pinchas' deed was not entirely praiseworthy. The Yerushalmi says that Pinchas' deed was not in accordance with the will of the Chachamim. Rebbi Yehoshua ben Pazi states that they wanted to excommunicate Pinchas by placing him in Niduy, but that their Ru'ach ha'Kodesh told them that he and his children will be rewarded with the "covenant of the priesthood" forever. Why did Pinchas do something that was controversial? Moreover, if it was so controversial, then why did so many miracles happen to him while he was doing it?

ANSWER: The YEFEH MAR'EH states that the parameters of the Halachah of "Kana'in Pog'in Bo" include the fact that the Chachamim generally are not pleased with such a person who acts in that manner. Nevertheless, Pinchas undertook this action because he saw that it was absolutely necessary under the circumstances.

(b) The KLI CHEMDAH is perplexed by this explanation. We never find such a condition stated with regard to the rule of "Kana'in Pog'in Bo." He explains instead that the Yerushalmi's statement can be understood based on some of the additional miracles which are listed in the Sifri. The Sifri lists as a miracle the fact that Pinchas was not splattered by their blood, which would have caused him to become Tamei (which is forbidden for a Kohen). Our Gemara does not mention this miracle. The Kli Chemdah explains that our Gemara maintains that Pinchas did not yet have the status of a Kohen, and therefore it was inconsequential whether or not him became Tamei by touching their blood.

The Yerushalmi, the Kli Chemdah explains, agrees with the Sifri that Pinchas already was considered a Kohen. Since he was already a Kohen, we can understand a Halachic reason for why he should not have done what he did. Since this act of zealousness is not obligatory, it was improper, the Chachamim felt, for Pinchas -- a Kohen -- to undertake to perform such a deed when there was a strong likelihood that he thereby would make himself Tamei, violating a Torah prohibition. For this reason, the Yerushalmi says that what he did was not in accordance with the will of the Chachamim. (Y. Montrose)