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Yevamos, 34

1) FOUR ISURIM (THREE OF "ERVAH" AND ONE OF NIDAH) TAKING EFFECT SIMULTANEOUSLY

QUESTION: The Mishnah (33b) states that if two brothers were Mekadesh two sisters, and at the time of the Chupah the women became switched around, then each man and woman is Chayav for four Isurim (and must bring four Korbanos Chatas): "Eshes Ish," "Eshes Ach," "Achos Ishah," and the Isur of Nidah.

The Gemara asks how can each person in the case of the Mishnah be Chayav for four different Korbanos Chatas for four different Isurim if we hold that "Ein Isur Chal Al Isur." The Gemara answers that the Mishnah is referring to a case where all of the Isurim took effect at one time. Such a case exists when a man and his brother are each Mekadesh one of two sisters at the same time by way of a Shali'ach. In such a manner, the three Isurim of "Eshes Ish," "Eshes Ach," and "Achos Ishah" take effect at the same time.

The Gemara says that the Isur of Nidah also takes effect at the same time as the other Isurim, but only in the following situation: the Isur Nidah takes effect for the man when the woman whom he was Mekadesh had a flow ("Shofa'as") of blood from before he was thirteen years old until after he became thirteen, and the Isur Nidah takes effect for the woman when she had a flow from before she was twelve until after she became twelve. At the moment they become Chayav in Mitzvos (age thirteen for him, age twelve for her), all of the Isurim take effect simultaneously.

RASHI (DH u'Mitoch) explains that the Chiyuv takes effect at one time only if the man and the woman are exactly one year apart in age, and thus they become Chayav in Mitzvos at exactly the same time. The man (or rather, boy) gave the woman Kidushin before he was thirteen and before she was twelve, with the stipulation that the Kidushin will take effect at a later time (when they both become of age). In that way, the Kidushin takes effect at the same time as the Isur Nidah, and thus all four Isurim take effect simultaneously.

TOSFOS and the Rishonim ask a number of questions on Rashi's explanation:

(a) First, how can a child who is not thirteen years old be Mekadesh a woman, so that the Kidushin takes effect when he becomes thirteen? A minor (Katan) under thirteen has no Da'as when it comes effecting Halachic changes such as Kidushin! How, then, can he be Mekadesh a woman? In addition, as a Katan, how can he make a Shali'ach to be Mekadesh a wife for him? We know that a Katan cannot appoint a Shali'ach! (TOSFOS DH Mitoch)

(b) Second, Halachic adulthood does not depend on the age of the person (such twelve for a woman, thirteen for a man). Rather, mid'Oraisa, it depends on the person showing physical signs of maturity -- namely, two hairs. Why, then, does Rashi say that the case of the Mishnah is when the man and the woman turn thirteen and twelve, respectively, at the same moment, at which time they become Chayav in Mitzvos (and can therefore be Chayav to bring a Korban Chatas)? It does not depend on their birthdays, but on the development of physical signs of maturity! Since it depends on when they show those physical signs, the only time the Isurim can take effect on both of them simultaneously is when they both developed those signs of maturity at exactly the same time -- which is a very unlikely situation (and an impossible one, if we maintain "Iy Efshar l'Tzamtzem")! (RAMBAN)

(c) Third, why does Rashi say that in order for all of the Isurim to take effect simultaneously, the Kidushin must take effect when the woman becomes twelve years old? It is clear why Rashi explains that the *man's* Kidushin must take effect when he turns thirteen, in order for all of the Isurim to take effect at one time. A man cannot be Mekadesh a woman until he is thirteen years old, and after he is thirteen the Kidushin will not take effect at the same time as the Isur Nidah. Thus his Kidushin must take effect exactly when he turns thirteen. Why, though, does Rashi say that the woman's Kidushin must take effect when she is exactly twelve years old? A woman *is* able to become Mekudeshes, with the Kidushin taking full effect, before she becomes twelve, since her father can receive the Kidushin on her behalf. If the man then has relations with her after she turns twelve, at that point she (and he) will be Chayav to bring four Korbanos Chatas; even though she became married earlier, all four Isurim take effect on her later, at the moment that she becomes Chayav in Mitzvos! (The Rishonim and Acharonim do not seem to ask this question on Rashi.)

(d) Fourth, why does the Gemara mention that the woman had continual flows of blood ("Shofa'as") from the time before she was twelve until after she was twelve? In order to be a Nidah at the time that she turns twelve, she does not have to continue seeing blood! From the moment that she sees blood at any point before she turns twelve, she remains a Nidah until she immerses in a Mikvah. The Gemara could have said simply that she saw blood before she turned twelve (and before he turned thirteen) and did not immerse in a Mikvah in between! (TOSFOS)

TOSFOS and the other Rishonim indeed reject Rashi's explanation (and Girsa). Tosfos cites another Girsa that says that the man is Chayav for all four Isurim when the *woman* becomes *three* years old, and not when the *man* becomes *thirteen* as our Girsa says. If he had relations with the woman when she was under three, he has not transgressed the Isurim, because it is not considered as though he had relations with her (since under the age of three, "Ein Bi'aso Bi'ah" -- Nidah 44a). At the moment that she turns three, all of the Isurim immediately take effect at the same time, prohibiting her to the man. That is why these Isurim are taking effect "b'Vas Achas" for the man. (Tosfos agrees that the woman is Chayav for all four Isurim when she becomes twelve, which is when she becomes Chayav in Mitzvos, as Rashi said.)

This Girsa avoids the first question that the Rishonim ask on Rashi's explanation, because according to Tosfos, the man was over the age of thirteen when he was Mekadesh the girl, and therefore he can certainly make a Shali'ach and effect a Kidushin. The second question is also answered, because according to Tosfos, the man and the woman do not have to become Chayav in Mitzvos at the same moment. The man could have been an adult already. When the Gemara says that the woman becomes Chayav for all of the Isurim "at the age of twelve," it actually means that she becomes Chayav when she grows two hairs (which usually occurs around the age of twelve). For the same reason, the third question poses no difficulty to the explanation of Tosfos. Tosfos clearly states that the woman can receive her Kidushin and become Mekudeshes at any time, not only when she becomes twelve. The question is only on Rashi, who implies that the Kidushin takes effect only when she becomes twelve *at the same time* as the man becomes thirteen.

However, there are a number of unanswered questions with the explanation of Tosfos as well. First, besides the obvious problem of changing the Girsa of the Gemara, Tosfos does not answer the fourth question, why the Gemara says that the woman had a continual flow, rather than saying that she became a Nidah once and remained a Nidah. Moreover, this question is even more difficult according to Tosfos, because according to his Girsa, both statements ("he is Chayav when she had a flow from before three to after three" and "she is Chayav when she had a flow from before twelve to after twelve") refer to the age of the *woman*. Why did the Gemara split the two periods into two, if they are both referring to the woman? The Gemara should have combined them and said that both he and she are Chayav "when she had a flow of blood from before she was three until after she was twelve!" The Rishonim (RITVA, RASHBA) answer this question by saying that the Gemara means to make clear that it makes no difference whether the girl was or was not a Nidah *between* the age of 3 and 12. Even is she immersed in a Mikvah during that period, the result would be the same, as long as she was a Nidah upon reaching the age of 3 and upon reaching the age of 12. As for the Gemara's statement that she had a "continual flow ("Shofa'as")," TOSFOS and the Rishonim write that it is "Lav Davka."

(One could object to the main thesis of Tosfos' explanation by pointing out that it is not so clear that the man is not Asur to the woman before she turns three years old. It is true that it is not possible for him to have relations with her until that age, but that does not mean that the Isurim did not yet take effect on him at all. Rather, the Isurim *did* take effect on him, but he cannot transgress them until she becomes three.)

How, though, will Rashi answer the questions asked on his explanation of the Gemara?

ANSWERS:

(a) The RASHBA and other Rishonim answer that the Gemara in Kidushin (63a) says that according to Rebbi Meir, who maintains that one can make a Kinyan on an item that has not yet entered the world ("Davar she'Lo Ba l'Olam"), a Nochri is able to be Mekadesh a Jewish woman by stipulating that the Kidushin take effect "after I convert." Rashi might be explaining our Gemara according to Rebbi Meir's opinion that one can make a Kinyan on a "Davar she'Lo Ba l'Olam." Hence, a Katan is able to be Mekadesh a woman now by stipulating that when he becomes an adult, the Kidushin will take effect. Similarly, the Shelichus that the Katan appointed will also be effective, since the Katan appointed him to become a Shali'ach when he reaches adulthood.

(Tosfos does not accept this possibility, because Tosfos maintains that a Katan is lacking more than just the Halachic ability to make a Kinyan -- like a Nochri. A Katan does not have any Da'as at all to enable him to *decide* to make a Kinyan that will take effect at a later time. This Machlokes between Rashi and Tosfos might be based on a fundamental difference in understanding the Torah's exemption of a Katan from Mitzvos. TOSFOS might understand this to mean that a boy's mind is not fully developed until a certain age, and the Chachamim had a tradition that at the age of thirteen (that is, when he grows two hairs) we may assume that his mind is sufficiently developed. Rashi, though, might learn that regardless of whether or not his mind is developed, the Torah decreed that he is not Chayav in Mitzvos and cannot effect Kinyanim until he turns thirteen (or grows two hairs). The ROSH (Teshuvos, Klal 16) in fact writes that the age of thirteen for Mitzvos is a Halachah l'Moshe mi'Sinai. That is, the child's mind might be developed even before that time, but he still lacks the Halachic prerequisites for being Chayav in Mitzvos and for making Kinyanim. Since his mind is developed, though, he is able to make a Kinyan (and appoint a Shali'ach) that will take effect later, and we may assume that he is able to make a conscious decision. (For this reason, the CHASAM SOFER (Teshuvos, YD #184, #317) suggests that a Nochri might be obligated in Mitzvos even when he is less than 13 years old, if he has a mature mental capacity. See also Insights to Nidah 45:2.)

The RASHBA, though, asks a question on this answer for Rashi. Our Gemara is trying to establish the Mishnah according to Rebbi Shimon, who does not agree with Rebbi Meir and rules *Ein* Adam Makneh Davar she'Lo Ba l'Olam." As such, Rebbi Shimon should hold that a Katan *cannot* make a Kinyan for later. It is possible, though, that if Rashi holds that a Katan's mind is already developed and he just has to wait until he reaches a certain age because of a Halachah l'Moshe mi'Sinai, then perhaps even Rebbi Shimon would admit that a Kinyan can be effected by him. He is not considered a "Davar she'Lo Ba l'Olam," because no action is required to give him the capacity to effect a Kinyan; it will come automatically with the passage of time (he is only "Mechusar Zman"). (See MISHNEH L'MELECH, Hilchos Ishus 4:7).

(b) Regarding the physical sign of two hairs, the RAMBAN himself mentions that Rashi might be explaining the Sugya according to the opinion that holds that "Toch Zman k'Lifnei Zman" -- (Nidah 46a), but if he grew hairs before the age of thirteen, the moment at which he becomes thirteen those hairs make him an adult as long as they remain on him past the age of thirteen.

The RASHBA answers this question based on the Gemara in Kidushin. When the hairs grow in, Beis Din considers that person to be an adult retroactively to the beginning of that day. Therefore, even if the man and the woman do not grow their signs of maturity at the exact same moment, as long as they grew them on the same day, they are considered to have become adults at the beginning of that day, and thus they became adults at exactly the same time.

The MISHNEH LA'MELECH (ibid. and Hil. Ishus 2:18, 4:7) answers that according to Rabeinu Tam (cited by the TUR EH 155), if the two hairs grow on the *last day* of the twelfth year (for a boy, or the 11th year for a girl), they are not considered to be non-pubic hair, yet the child is only considered to be a Gadol at sunset. If so, the pubic hairs of the boy and girl may have grown on the same *day*, although not at the same time, and yet they become Gedolim at the same instant.

He adds that this might be why Rashi presents the case that the boy was Mekadesh the girl on *the day before* the became Gedolim; had it been done any earlier, they could not yet have grown pubic hair, and their Kinyan would be "Davar she'Lo Ba l'Olam." On the last day, though, after they already grew pubic hair, they are only Mechusar Zman (as we mentioned above), and their Kinyan is not considered to be Davar she'Lo Ba l'Olam.

(c) Regarding the third question, that the woman does not have to be twelve years old in order for the Kidushin to take effect and for her to become Chayav in all of the Isurim at one moment (when she grows older and reaches the age of 12), the answer might be as follows. Rashi understands the Gemara to be saying that the reason all of the Isurim take effect at once for the man when he becomes thirteen is because until that time, he was not obligated to observe the Mitzvos. For a woman, though, the Isur of "Eshes Ish" takes effect upon her body (i.e., she herself becomes an "object of Isur" to others). Since the Isur affects her body, even before she is obligated in Mitzvos (at age 12) the Isur of Eshes Ish is considered to have "taken effect" upon her. The other Isurim (of Eshes Ach, Achos Isha) are different, though. They prohibit her to specific people, and since her Isur is relative, it cannot be asserted that she becomes an "object of Isur" to others. Similarly the Isur of Nidah does not make a woman into an "object of Isur," since it is an Isur that can be removed with Tevilah in a Mikvah (see Tosfos 2a, DH v'Achos). Therefore, the other Isurim will only take effect upon her when she becomes an adult, at twelve years of age.

That is why Rashi could not explain that the woman received Kidushin as a Ketanah (through her father). By doing so, the Isur of "Eshes Ish" would take effect *before* she is twelve, while the other Isurim will take effect only afterwards, when she turns twelve. Since "Ein Isur Chal Al Isur," the later Isurim will not take effect.

Rashi learned this from the wording of the Gemara. When discussing how the Isur Nidah takes effect at the same time as the other Isurim, the Gemara does not use the word "Ela." This implies that it does not retract its previous statement, that the two brothers performed Kidushin to the two sisters at the same instant. Why not? If the Isur only applies when the boys and girls reach the age of puberty, it should not matter when they were Mekadesh each other. Even if one Kidushin preceded the other, all of the Isurim will take effect when they reach puberty (as the MISHNEH LA'MELECH asks, Ishus 4:7). It must be that the Isur Eshes Ish indeed takes effect even before the girl reaches puberty. (M. Kornfeld)

(d) This might answer the fourth question as well. It is true that when a girl sees blood, she becomes a Nidah and remains so as long as she does not immerse herself. However, the Gemara mentions that she had a continual flow ("Shofa'as") in order to emphasize that the Isur Nidah -- in contrast to the Isur Eshes Ish, which also prohibits her to all men (other than her husband) -- is not a title that she acquires, but rather it is a prohibition that applies to her as long as she is a Nidah. Consequently, as we explained above, the Isur of Nidah will not be considered to have taken effect until she turns twelve. The Gemara uses the active description of "Shofa'as," instead of the passive description of "a woman who is a Nidah," in order to emphasize this point.

QUESTION: The Mishnah (33b) states that if two brothers were Mekadesh two sisters, and at the time of the Chupah the women were switched, then each man and woman is Chayav for four Isurim. In addition, before returning to live with her proper husband, each woman must separate for three months. This is in order to avoid confusion about who the father is in case she became pregnant.

The Gemara asks how could these women become pregnant at the moment of the Chupah? We know that "a woman does not become pregnant the first time she has relations (Bi'ah Rishonah)."

What is the Gemara asking? Perhaps the Mishnah is referring to a case where this was not the "Bi'ah Rishonah!" Perhaps the women were married before! (TOSFOS HA'ROSH)

ANSWERS:

(a) The TOSFOS HA'ROSH answers that according to the Girsa of Tosfos (mentioned in the previous Insight), the answer is obvious. Tosfos explains that the case of the Mishnah is when the women became married to their husbands before they were three years old. At that age, they must have been Besulos (virgins) since Besulim return until a girl reaches the age of three, and their relations with their husbands after reaching the age of three had the status of Bi'ah Rishonah. (See also RASHASH)

(b) RAV YAKOV EMDEN (Hagahos ha'Ya'avetz) and MAHADURA BASRA (of the Maharasha) explain that the Gemara is asking simply that the Mishnah does not qualify its statement. This implies that the women must separate for three months before returning to their proper husbands *even* if they had never had relations before this time. The Gemara is asking why they must separate if we are not afraid that a woman becomes pregnant from the "Bi'ah Rishonah."

According to this approach, though, the Gemara's answer is not completely satisfying. If the Mishnah's statement is entirely unqualified, how can the Gemara assert that the statement applies only when the men lived with the women twice?(MAHADURA BASRA; see ARUCH LA'NER DH v'Ha who defends this answer.)

(c) The son of the Or Zaru'a, MAHARACH OR ZARU'A (#164) cites an answer from MAHARAM ROTENBURG (which also appears in TESHUVOS MAHARAM ROTENBURG CHADASHOS #151and TASHBATZ KATAN #453). He answers that a woman who is not a Besulah cannot become married through "Kenisah l'Chupah." Rather, one is Koneh her through Bi'ah, like the Yerushalmi says (cited by Tosfos in Yoma 13b, DH l'Chada). Since the Mishnah says that the women became exchanged "at the time of entering the Chupah," it seems to be referring to a woman who never had relations before, and that is why she can achieve marital status through entering a Chupah.

(c) The TOSFOS HA'ROSH cites a different answer in the name of MAHARAM ROTENBURG. He says that the Gemara's inference is from the fact that the Mishnah says "at the time of entering the Chupah." What difference does it make if she had a Chupah or not? The Mishnah could have simply said that they switched their wives, without adding that they went into the Chupah! The Mishnah must mean to teach that if they had switched their wives without a Chupah, each would be obligated to bring only three Chata'os and not four. There would be no Chatas for the Isur of "Eshes Ish." Why not? What does the Chupah have to do with the Isur of "Eshes Ish," -- that Isur takes effect at the time of Erusin! It must be that the Mishnah is discussing a case where each woman is not a "Eshes Ish" before the Chupah, but rather a "Na'arah Me'urasah." When a man has relations with another man's Na'arah Me'urasah, the punishment is Sekilah (and not Chenek, the punishment for a normal Isur of "Eshes Ish"). The Isur of Na'arah Me'urasah is not listed in the Mishnah at the beginning of Kerisus as an Isur which is punishable with Kares, and for which one must bring a Korban Chatas.

Since the Mishnah is discussing a case of a Na'arah Me'urasah, it is obviously discussing a woman who never had relations before, because the Halachos of Na'arah Me'urasah apply only to a woman who is a Besulah (as the Torah states clearly in Devarim 22:23). That is how the Gemara knew that the Mishnah is referring to a woman who never had relations before.

The assertion of the Maharam Rotenburg that sinning with a Na'arah Me'urasah is not punishable with Kares and carries no Chiyuv of a Korban Chatas is very novel. (According to the Maharach Or Zaru'a, Maharam Rotenburg later rescinded this view.) His suggestion has prompted lengthy discussions among the Acharonim. (See, for example, OTZAR SIFRA of Rav Menachem Zemba, Mishnah 5, at the end of "Binyan Av mi'Kasuv Echad"; TO'AFOS RE'EM, Yere'im ha'Shalem 7:3; CHIDUSHEI RABEINU MEIR SIMCHA Sanhedrin 53a; KLI CHEMDA Parashas Ki-Tetze, 11:1).

Why should there be no Kares and no Korban Chatas in the case of a Na'arah Me'urasah? After all, a Na'arah Me'urasah is also an Eshes Ish (RASHASH Sanhedrin 51b; ARUCH LA'NER 33b). Moreover, the laws of a Na'arah Me'urasah should be more *stringent* than those of a normal Eshes Ish, because the punishment (Sekilah) is more severe, so how can the Maharam m'Rotenburg suggest that the case of a Na'arah Me'urasah is *less* stringent (having no Kares and no Korban Chatas)?

Some Acharonim (CHESHEK SHLOMO here, RAV MENACHEM ZEMBA, loc. cit.) suggest that the Maharam Rotenburg means to say that the prohibition of Na'arah Me'urasah was a "Davar she'Hayah b'Klal v'Yatza Lidon b'Davar ha'Chadash" -- it was originally included in the category of Eshes Ish, but then it left that category with respect to a certain novel Halachah (it is punishable with Sekilah, a different punishment than every other Eshes Ish), and the Torah never returned it to the category of Eshes Ish. As a result, Na'arah Me'urasah does not have any of the Halachos of Eshes Ish. (See TOSFOS YESHANIM 4a, DH Ela Ov, who seems to say that when the Torah gives a punishment of Sekilah instead of Chenek for a certain transgression, this is *not* called "receiving a new Halachah" with regard to the principle of "Davar she'Hayah b'Klal v'Yatza....," and Rav Menachem Zemba ibid.)

The Acharonim bring many proofs against the Maharam Rotenburg's suggestion. The TORAS KOHANIM (Dibura d'Chova, Parsheta 1:11) derives from a verse that one *is* Chayav to bring a Korban Chatas for sinning with a Na'arah Me'urasah. (While this clearly refutes the Maharam Rotenburg's assertion that there is no Korban Chatas for a Na'arah Me'urasah, in one respect it supports the Maharam Rotenburg's assertion, as it indicates that a Na'arah Me'urasah is indeed different from all other cases of Eshes Ish, for it requires a special verse to teach that it is Chayav a Chatas.) RASHI in Kesuvos (3a, DH Shavyuhah) also alludes to this Toras Kohanim. The RAMBAM also seems to rule that it is punishable with Kares and Chatas (Hil. Isurei Bi'ah 1:1,6; SEFER HA'MITZVOS #352). (It might be added that if Na'arah Me'urasah does not share the Halachos of the other Arayos because it is punishable with Kares, one should not be Chayav for Ha'ara'ah with a Na'arah Me'urasah, see Yevamos 54b.)

The fact that the Mishnah in Kerisus does not list Na'arah Me'urasah among the Chayavei Kerisus is no proof that Na'arah Me'urasah is not Chayav Kares, as the Aruch la'Ner (ibid.) points out, because we can say simply that the reason it is not listed is because it is included in the Isur of Eshes Ish, which is listed.

34b