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Yevamos, 76

1) LOSING KEDUSHAH WHEN A KOHEN BECOMES A PETZU'A DAKA

QUESTION: The Gemara asks whether a Kohen who is a Petzu'a Daka retains his Kedushah of a Kohen or whether he loses his Kedushah. If he no longer has Kedushah, then he is permitted to marry women to whom a normal Kohen is prohibited, such as a Giyores, Gerushah, or Zonah.

What is the Gemara's question? The Mishnah earlier (70a) states clearly that a Kohen who is a Petzu'a Daka may eat Terumah. The fact that he is permitted to eat Terumah shows that he retains the Kedushah of a Kohen! Why, then, does the Gemara here ask whether or not he is permitted to marry a Giyores?

ANSWERS:

(a) The CHELKAS MECHOKEK (EH 5:1) suggests that eating Terumah requires less Kedushah than any other aspect of Kehunah, for we see that even servants may eat Terumah.

This is difficult to understand, because the servant of a Kohen does not eat in his own right, but because he is the property of the Kohen. But if the Petzu'a Daka loses his Kedushah, then neither he nor his servant has any grounds on which to eat Terumah! (Perhaps the Chelkas Mechokek means that the Petzu'a Daka is related to his former self (i.e. his self before he became a Petzu'a Daka), in no less of a sense than a servant who is owned by a normal Kohen.)

(b) The PISCHEI TESHUVAH (EH 5:1) cites the BEIS MEIR who suggests that the Kedushah of a Kohen with regard to matters of marriage is not related to the Kohen's right to eat Terumah. That is, the Kohen's right to eat Terumah comes from his Kehunah and not from his Kedushah, while his prohibition to marry certain women comes from his Kedushah, as the Torah explicitly says in the discussion of whom the Kohen may marry (Vayikra 21:6-7).

OPINIONS: The Gemara asks whether a Kohen who is a Petzu'a Daka retains his Kedushah of a Kohen or whether he loses his Kedushah. If he no longer has Kedushah, then he is permitted to marry women to whom a normal Kohen is prohibited, such as a Giyores, Gerushah, or Zonah. The Gemara proves that he may marry a Giyores from the fact that a Yisrael who is a Petzu'a Daka is permitted to marry a Nesinah, even though a normal Yisrael is prohibited from marrying a Nesinah because of the Isur of "Lo Sischaten Bam." Just like a Yisrael loses his Kedushah when he becomes a Petzu'a Daka, it must be that a Kohen also loses his Kedushah when he becomes a Petzu'a Daka.

Rava at first rejects this answer, saying that the Isur of Nesinah is only an Isur d'Rabanan and not d'Oraisa, and the Rabanan did not include a Petzu'a Daka in their prohibition against marrying a Nesinah. It is not because he loses Kedushah.

Rava then retracts his view and says that the Isur to marry a Nesinah is an Isur d'Oraisa of "Lo Sischaten Bam." Nevertheless, a Yisrael who is a Petzu'a Daka is permitted to marry a Nesinah. It seems that a Yisrael loses his Kedushah when he becomes a Petzu'a Daka and that is why he may marry a Nesinah. Likewise, a Kohen should also be permitted to marry a Giyores when he becomes a Petzu'a Daka.

What is the Halachah -- does a Petzu'a Daka lose his Kedushah? Also, what is the Halachah concerning the Isur of marrying a Nesinah? Is it an Isur d'Rabanan or an Isur d'Oraisa?

There are various opinions in the Rishonim on this matter.

(a) The RA'AVAD (Hilchos Isurei Bi'ah 16:2) rules like Rava's conclusion that a Nesinah is Asur d'Oraisa and a Petzu'a Daka -- whether he is a Kohen or a Yisrael -- loses his Kedushah and is permitted to marry anyone, even a Mamzeres. This also appears to be the opinion of RABEINU TAM in Tosfos (79a, DH u'Nesinim), the MILCHAMOS here, and other Rishonim.

(b) However, the BA'AL HA'ME'OR here rejects Rava's conclusion based on the Sugya later (79a) which says that David ha'Melech enacted the decree prohibiting marriage to the Nesinim. This implies that Nesinim are Asur only mid'Rabanan, and thus the fact that a Yisrael who is a Petzu'a Daka may marry a Nesinah is no proof that he loses his Kedushah. He may have been permitted to a Nesinah because the Rabanan simply did not include a Petzu'a Daka in their Gezeirah. TOSFOS (79a) cites others who seem to reach the same conclusion. This is also the opinion expressed by RASHI in Kesuvos 29a and Yevamos 37a (see Insights to 79:2).

(c) The RAMBAM (Hilchos Isurei Bi'ah, loc. cit.) issues a perplexing ruling. First, he concludes that a Nesinah is Asur only mid'Rabanan -- like the Ba'al ha'Me'or rules -- and a Yisrael who is a Petzu'a Daka is permitted to marry a Nesinah only because the Rabanan did not include a Petzu'a Daka in their Gezeirah (and not because he loses his Kedushah). Since he retains his Kedushah, a Petzu'a Daka may not marry a Mamzeres. However, the Rambam then rules that a Kohen who is a Petzu'a Daka *may* marry a Giyores, clearly implying that a Petzu'a Daka *does* lose his Kedushah!

How can we reconcile these contradictory rulings? According to the Rambam, who rules that a Petzu'a Daka does not lose his Kedushah, a Kohen who is a Petzu'a Daka should be prohibited to marry a Giyores!

The MAGID MISHNAH writes that a Kohen who is a Petzu'a Daka is permitted to marry a Giyores because the Isur for a Kohen to marry a Giyores is an Isur that is not "Shaveh ba'Kol" -- it does not apply to all Jewish men, but only to Kohanim.

Perhaps the intention of the Magid Mishnah is that a Petzu'a Daka loses the *extra* Kedushah with which a normal Kohen is endowed, permitting the Kohen to a Giyores and other Isurei Kehunah. However, becoming a Petzu'a Daka does *not* take away the person's basic level of Kedushah of a Yisrael, and therefore he remains prohibited to marry a Mamzeres.

(The commentaries explain that the Rambam reached this conclusion because he learns, like the Ba'al ha'Me'or, that the Gemara later in Yevamos upholds Rava's original statement that a Nesinah is Asur mid'Rabanan. Nevertheless, he still retains the decisive ruling of Rav Sheshes that a Kohen loses his Kedushah, based on logical reasoning if not based on proof from the Beraisa.)

HALACHAH: The SHULCHAN ARUCH (EH 5:1) rules like the Rambam that a Kohen loses his Kedushah when he becomes a Petzu'a Daka and is permitted to marry a Giyores but not a Mamzeres. The REMA rules like the Ra'avad that a Kohen who is a Petzu'a Daka loses his Kedushah entirely and is permitted not only to a Giyores, but even to a Mamzeres.

76b

QUESTION: Rebbi Yehudah related that his colleague, Minyamin Ger Mitzri (a convert from Mitzrayim) told him that he married a Mitzris Rishonah (a first-generation Giyores from Mitzrayim), and he plans on marrying his son to a Mitzris Sheniyah in order that his grandson be a third-generation Mitzri, who is permitted to marry a normal Jew and to fully be a part of the Jewish community.

Why was Minyamin so careful to marry a Giyores Mitzris? He himself could have married a normal Jew! We know that when Sancheriv conquered the nations, he dispersed all of the different peoples. Those who live in Mitzrayim are no longer the original Mitzrim, just like those who line in Moav or Amon are not actual Moavites or Amonites!

ANSWERS:

(a) RASHI in Sotah (9a) cites the Tosefta which is the source of Rebbi Yehudah's statement in our Gemara. Rashi there adds that in the conclusion of the Tosefta, Rebbi Akiva told Minyamin that he was in error. Since Sancheriv mixed up the nations, he is probably not a Mitzri and he himself is permitted to enter the fold. This is the indeed Halachic ruling of the RAMBAM (Hilchos Isurei Bi'ah 12:25).

(b) TOSFOS, however, quotes the BEHAG who issues a different ruling. He cites another TOSEFTA, in Yadayim, in which Rebbi Yehoshua says that even today, a Ger Mitzri is prohibited to a normal Jew, because we find that a specific time limit was given for the dispersion of Mitzrayim. The verse in Yechezkel (29:13) says that forty years after Mitzrayim would be exiled, they would return to their land, and those forty years have already passed. Therefore, a Ger Mitzri is not the same as a Ger from current-day Moav, Amon, or Edom, who are permitted to a normal Jew, since the original nations have long been dispersed to other locations.

(c) The MORDECHAI (#71) cites RABEINU TAM who asserts that Sancheriv did not disperse the people of Mitzrayim at all (nor did he disperse the Moavites, whom he left in Moav). Only Amon and the other nations were exiled.

The Mordechai adds that this seems apparent from the Gemara in Avodah Zarah (9a) which discusses Antoninus and the Roman kings and calls them "Bnei Edom." If Sancheriv dispersed them, how could the Gemara call them descendants of Edom? It must be, asserts the Mordechai, that Sancheriv did not disperse every nation.

How will the other Rishonim answer that Gemara?

1. The Mordechai himself cites an answer from the SEMAG (Lavim 104) that "Zera ha'Meluchah," the royal family, always retains its identity no matter where the royal descendants are exiled. Therefore, the Gemara calls the rulers of Rome "descendants of Edom" because they were descended from the royal family of Edom and they did not lose their identity even though they were dispersed. (Even though we find that Rome "does not appoint a king who is the son of a king," it could be that the rulers were part of one extended family, and thus it is still possible to refer to them as "Zera ha'Meluchah." Alternatively, the official law did not permit *appointing* the son after the father to be the king, but the father did make successful efforts to ensure that his son was powerful enough to be able to take power after him.)

2. Alternatively, Edom is different from the other nations. Chazal had a tradition that the Roman rulers came from Edom (see RAMBAN in the end of Parshas Balak, Chavel edition. See also IBN EZRA to Bereishis 27:40, who maintains that Rome is a descendent of Yavan, and not of Edom. He apparently learned that all of these Gemaras are just Drush, in the form of Asmachta).