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Shevuos, 18

1) THE FORBIDDEN ELEMENT OF AN "ISUR HANA'AH"

OPINIONS: The Mishnah (14b) states that if a man's wife tells him, while having relations, that she has become Nidah, and he separates from her immediately, he is Chayav, because by separating from her he had pleasure. Rather, he must wait until he will no longer derive pleasure from separating from her, and then he must separate from her. The Gemara here quotes Rava who derives from this law that a man who is "Meshamesh Mes" with a woman who is forbidden to him is *not* Chayav, since he derives no pleasure.

Does this Gemara imply that in a case of an Isur Hana'ah, the prohibition is the *pleasure* that is derived ("Hana'as Be'ilah"), and not the *action* that is performed ("Ma'aseh Be'ilah")?

(a) The ASVUN D'ORAISA (#24) proves from this Gemara that such Isurim are, by definition, "prohibitions of pleasure," and not Isurim of prohibited actions. He points out that the Gemara emphasizes that in the case of the Mishnah, the man has transgressed because he derived pleasure.

He proves this further from the Gemara in Chulin (115b), which teaches Rebbi's opinion of how we learn from the Torah that one may not derive pleasure from a mixture of meat and milk. Rebbi says that there is a Gezeirah Shavah from which we learn that just as there is pleasure in the sin of a Kadesh, so, too, it is forbidden to derive pleasure form a mixture of meat and milk. If, in the case of a Kadesh, the Torah prohibits the action itself and not the pleasure per se, then how can we derive from there that deriving pleasure from a mixture of meat and milk is prohibited? The Torah never mentioned that the pleasure is forbidden!

The OR SAME'ACH (Hilchos Ma'achalos Asuros 14) agrees in part, but adds that there is a difference between the Isurim of forbidden relations and the Isurim of forbidden foods. In the case of Isurim of forbidden relations, there is no "amount" which is forbidden. Therefore, it is logical to say that the Torah prohibits the actual pleasure, as our Gemara says. Isurim of forbidden foods, through, are of a different nature. The Torah sets amounts (such as a k'Zayis, k'Beitzah, etc.) of forbidden food for which one will transgress the prohibition. This indicates that the physical amounts are of consequence, and not the amount of pleasure.

(b) The KEHILOS YAKOV (Kidushin #40) argues that the premise of the Asvun d'Oraisa is incorrect. The Torah forbids actions, not pleasure. This is the simple meaning of Isurim that prohibit the eating of certain items. He rejects the proofs of the Asvun d'Oraisa, and explains our Gemara as follows. The Gemara is saying that since the pleasure of separating from relations is similar to the pleasure of having relations, it is considered an *action* of having relations, and it is that *action* which is forbidden (and not the pleasure derived therefrom). The Kehilos Yakov further asserts that the Gemara in Chulin is no proof at all, since the Gemara can use a Gezeirah Shavah to take a normal characteristic of a prohibition and teach another similar prohibition.

However, the Kehilos Yakov admits that our Gemara is problematic to his approach. The Gemara quotes Rava who states that one who is "Meshamesh Mes" with a woman who is forbidden to him has not transgressed the Isur of forbidden relations. Abaye argues and says that this is an incorrect inference from our Mishnah. A person normally *is* Chayav for an act of "Meshamesh Mes." Our Mishnah is discussing a person who was notified of the Isur only while in the midst of the act. Such a person is considered a victim of circumstance and is not guilty when he separates "b'Ever Mes." The Gemara asks that if the reason he is innocent is because he is a victim of circumstance, then even if he separates immediately he should be innocent! The Gemara answers that since he could have separated with only a *small* amount of pleasure, and he chose to separate with an *increased* amount of pleasure, he is guilty. This indicates that according to Abaye, the pleasure itself is what is prohibited, because if the action is what is prohibited, then the man should be innocent in both cases, since he had to separate in one way or another!

The Kehilos Yakov answers this question based on the words of the ROSH in Yevamos (6:2). The Rosh says that a man is required to choose to be killed rather than to transgress an Isur of forbidden relations. Even though he is not considered to be transgressing the Isur when he remains passive, the Gemara attests that a man is never considered passive in an act of relations, since he is physically able to have relations only if he has intention to do so. The Rosh asks how this principle is consistent with Abaye's statement. If one who is a "Meshamesh Mes" is guilty, then the Gemara there does not have to say that the man's involvement is always active; even if he is passive, he is still deriving pleasure and is guilty according to Abaye!

The Rosh answers that, first, the Gemara in Yevamos is following the view of Rava as expressed here in Shevuos, who holds that "Meshamesh Mes" is *not* a transgression. Second, even according to Abaye, when a man increases his pleasure by becoming physically able to have relations, it is as if the entire action was done intentionally. This is like Abaye's own answer here in Shevuos, when he says that the man is Chayav because he should have separated with less pleasure.

The Kehilos Yakov explains that his question was incorrect, according to the words of the Rosh. While it is true that the man was forced to separate in one way or another, by separating with *more* pleasure he removed himself from the status of being a victim of circumstance, and instead categorized himself as doing the act willingly. This means that even according to Abaye, the man's choice of the more pleasurable way to separate categorizes him as knowingly transgressing an Isur with an action. We therefore remain with the principle that the *action* of the sin is forbidden, and not the pleasure.

A practical consequence of these two approaches -- whether the action itself is prohibited or whether the Hana'ah is prohibited -- would apply in a case in which a person is forced, due to circumstances (such as Piku'ach Nefesh), to transgress an Isur (such as to eat meat that is not kosher). If the action is what is prohibited, then perhaps the person may eat the choicest, tastiest meat, since he is permitted to do the action in this circumstance. If, however, the pleasure is what is prohibited, then perhaps he may not eat the choicest, tastiest meat, but rather the lesser quality meat, because he must minimize the pleasure that he receives, since it is the pleasure with his forbidden. (Y. Montrose)

18b

OPINIONS: The Gemara records a Beraisa in which Rebbi Yoshiyah teaches that the Torah requires a man to separate from his wife when she is "Samuch la'Vestah," when she nears the time that she expects to become a Nidah. He learns this from the verse, "You shall separate the people of Israel from their Tum'ah" (Vayikra 15:31)."

Is this a Torah prohibition, or is it a Rabbinical prohibition which uses the verse as an Asmachta?

(a) The RASHBA and RITVA in Yevamos (62b) explain that the Isur to be with one's wife when she is "Samuch la'Vestah" is d'Rabanan. This view is supported by the Gemara in Yevamos, which says that a man is obligated, presumably mid'Rabanan, to be with his wife before he departs on a trip, even if it happens to be "Samuch la'Vestah." If the Isur of "Samuch la'Vestah" is mid'Rabanan, then it is clear that the Rabanan have the right to override their own enactment when they see fit to do so.

The Ritva here in Shevuos, however, says that the proof from Yevamos is refutable. Even if the Isur of being with one's wife when she is "Samuch la'Vestah" is mid'Oraisa, the Torah itself informs us that a man is permitted to be with his wife when he is about to depart on a trip, even when it is "Samuch la'Vestah." This is learned from the end of the verse quoted in the Gemara in Yevamos, "And you shall visit your residence and you will not sin" (Iyov 5:24). The verse concludes with the words "and you will not sin" because it is assuring the man that since he is fulfilling his obligation to be with his wife for the purpose of a Mitzvah, his wife will not become a Nidah at that moment even though she is "Samuch la'Vestah." (See Insights to Yevamos 62b.)

The RAN, RASHBA, and other Rishonim give another proof that the Isur of " Samuch la'Vestah" is d'Rabanan. There is an argument in the Gemara in Nidah (15a) whether the Isur during the woman's Veses is a Torah prohibition or a Rabbinical decree. These Rishonim rule that the Isur during the Veses itself is only d'Rabanan. According to this opinion, it is obvious that "Samuch la'Vestah" is also d'Rabanan.

(b) Other Rishonim explain the Gemara in Nidah differently. They explain that the Machlokes in Nidah is not about a woman being prohibited during her Veses. Rather, the argument involves merely the woman's status after her Veses has passed and she has not yet determined her status. Everyone agrees that during her Veses, the Torah forbids her to have relations. According to this interpretation, there is no reason why "Samuch la'Vestah" cannot be a Torah prohibition.

The NODA B'YEHUDAH (Mahadura Kama YD 55) cites proof to this view from the Gemara in Gitin (28b). The Gemara there rules that when Halachically relevant, we take into account, when in doubt, the possibility that a person might die, but we do not suspect that a person has already died. What is the logic behind this? The difference lies in the Chazakah (status quo) of the person. If a person has a Chazakah that he is alive, we do not suspect, out of doubt, that he might have already died, since that would be counter to his Chazakah. On the other hand, if we suspect that someone might die due to circumstances, we are not contradicting his status quo that tells us that *until now* he was alive, since we are in doubt whether he will die in the near future.

The Noda b'Yehudah explains, based on this, that the prohibition during a woman's Veses is a relatively weak prohibition (according to the opinion that it is mid'Rabanan), because once a woman passes her Veses without becoming a Nidah, it makes sense to maintain her previous status of not being a Nidah. We do not suspect that she already became a Nidah and did not know it, just as we do not suspect that someone already died, since such a suspicion would be counter to the person's Chazakah, his or her previous status. Therefore, the Torah does not forbid the time of the actual Veses. However, the time immediately before she expects to become a Nidah, we should be fearful that she is about to become a Nidah. Hence, it is possible that the opinion that holds that the Isur of Veses is d'Rabanan can hold that "Samuch la'Vestah" is forbidden by the Torah. This is also the approach of the CHASAM SOFER (Teshuvos YD 170, 179).

(The ARUCH HA'SHULCHAN (YD 184) says that this is the approach of many Rishonim. He cites the RAMBAM who rules that the Isur of Veses is d'Rabanan, while he writes that "Samuch la'Vestah" is forbidden without mentioning that it is d'Rabanan. The Aruch ha'Shulchan points out that the Rambam will usually mention when someone is mid'Rabanan if that is the case. The Rambam's omission here indicates that "Samuch la'Vestah" is forbidden mid'Oraisa. The Aruch ha'Shulchan adds that this is also the proper way of understanding TOSFOS in Yevamos (62b) and the ROSH.)

The Aruch ha'Shulchan and others, however, agree that "Samuch la'Vestah" is mid'Oraisa, even though Veses is mid'Rabanan, but they disagree with the proof cited by the Noda b'Yehudah. The Aruch ha'Shulchan says that we cannot compare the case of Veses to the case in Gitin. In the case in Gitin, the threat of death is constantly looming over the person, and therefore the possibility of his death is a very real concern. In contrast, a woman is not inevitably going to have a flow of Dam; there are many factors (such as pregnancy, or illness) that will prevent her from becoming a Nidah at any future time.

The Aruch ha'Shulchan instead suggests a different argument to explain why "Samuch la'Vestah" should be Asur mid'Oraisa even though Veses itself is Asur mid'Rabanan. He explains that as opposed to what the Noda b'Yehudah assumes, there is no Chazakah at all that a woman who was Tahor in the past is still Tahor. The nature of a woman is to constantly change from the status of Tahor to the status of Tamei. Under such circumstances, no Chazakah can be established. This is known as "Chazakah ha'Asuyah l'Hishtanos."

According to this, why does the verse need to warn people to separate from their wives "Samuch la'Vestah?" Even without the verse they should be prohibited to be with their wives, since the woman is expected to become Tamei and has no Chezkas Taharah!

The CHAZON ISH (YD 80:8) explains that even without the verse a person would have had to separate because of the potential problem. The verse teaches that if one had relations "Samuch la'Vestah," then even if his wife did not become a Nidah at that moment, he is still considered to have sinned.

(This discussion applies only to the requirement to separate, at "Samuch la'Vestah," from a woman who has a Veses Kavu'a, a set time at which she becomes a Nidah each month. The requirement to separate from a woman who has a Veses which is not Kavu'a (the category into which most women fall nowadays) is only mid'Rabanan according to all opinions.) (Y. Montrose)