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Yoma 13

1) MAKING A "KIDUSHIN" THAT WILL TAKE EFFECT ON YOM KIPUR

QUESTION: The Torah requires that the Kohen Gadol be married when he performs the Avodah on Yom Kipur (Vayikra 16:11). Furthermore, he may only be married to one woman, and not to two (ibid.). If the Kohen Gadol is not married, he may not perform the Avodah. Because of these requirements, Rebbi Yehudah maintains that, prior to Yom Kipur, another wife was arranged for the Kohen Gadol in order to ensure that he remains married in case his first wife dies on Yom Kipur. However, he could not simply marry another woman, because he may not be married to two wives when he performs the Avodah.

The Gemara proposes a complex arrangement whereby the Kohen Gadol marries a second woman before Yom Kipur and then divorces both wives conditionally, in such a way that at any given moment during Yom Kipur, he has one wife and not two, yet he is assured that if one dies he will still be married. The conditions are made such that if one of the two women dies then that woman will be divorced retroactively (from before Yom Kipur) so that he was not be married to two women when he begins the Avodah. If both women live, then the second wife will automatically be divorced retroactively.

There seems to be a much simpler solution that the Gemara could have offered to ensure that the Kohen Gadol remain married. The Kohen Gadol should simply marry a woman (that is, do Kidushin (Erusin) and Nisu'in (Chupah)) on Yom Kipur at the moment that his first wife dies!

Alternatively, if it is argued that it is not possible to marry a woman on Yom Kipur because of the Halachah (Beitzah 36b) that one may not be Mekadesh a woman on Yom Tov, then let him be Mekadesh her *before* Yom Kipur on condition that if his present wife does on Yom Kipur, the Kidushin of the second one will take effect *at the moment* that the first one dies. Why did the Gemara not offer this solution? (SHA'AGAS ARYEH #93)

ANSWERS:

(a) TOSFOS (13b, DH v'Chada) cites a Yerushalmi that says that indeed, the Kohen Gadol marries a second wife on Yom Kipur if his first wife dies. Even though marrying a woman on Yom Tov is forbidden because of Shevus, the principle of "Ein Shevus b'Mikdash" (the prohibitions of Shevus do not apply in the Beis ha'Mikdash) permits it.

However, the Bavli clearly does not accept this, seemingly because this type of Shevus is not permitted even in the Mikdash ("Shevus d'Medinah Lo Hutar ba'Mikdash," Eruvin 103a). However, why does the Bavli not allow the Kohen Gadol to be Mekadesh the second wife before Yom Kipur with a condition that it take effect on Yom Kipur, as we asked? (In fact, according to our Girsa in the Yerushalmi, this is actually what the Yerushalmi suggests.)

(b) REBBI AKIVA EIGER (Teshuvos I:159) and the SI'ACH YITZCHAK discuss whether a person is allowed to make an act of Kinyan prior to Shabbos which will take effect on Shabbos. They prove from our Sugya that it is considered a Shevus and is prohibited, because if it was permitted, then the Gemara should have said that the Kohen Gadol should make a Kidushin with a second wife on condition that it takes effect on Yom Kipur when the first wife dies, as the Sha'agas Aryeh suggested. Since the Gemara does not say this, it must be that it is prohibited because of Shevus.

However, Rebbi Akiva Eiger adduces proof that it is permitted from the TERUMAS HA'DESHEN (cited by the Magen Avraham OC 339:8) who implies that it should be permitted to perform a Pidyon ha'Ben on Shabbos even though the money cannot be given on Shabbos. The father may give the money to the Kohen before Shabbos and say that he wants the Pidyon to take effect on Shabbos. (The Terumas ha'Deshen concludes that the only reason this is not done is because it will not be possible to recite the blessings neither on Shabbos nor on Erev Shabbos.) We see that the Terumas ha'Deshen assumes that it is permitted to do an act of Kinyan (and similarly, Kidushin) which will take effect on Shabbos.

(c) TOSFOS understands from the Yerushalmi that the act of bringing a wife into the Chupah (the Nisu'in) is also a Shevus, like the Kidushin. Accordingly, perhaps the reason why one may not make a Kidushin on condition that it take effect on Yom Kipur is because even though the Kidushin itself can take effect later, the Chupah will have to be done on Yom Kipur, and that is prohibited because of Shevus.

The Chupah cannot be done prior to Yom Kipur on condition that it take effect on Yom Kipur, because the act of Chupah cannot take effect at a later time. Unlike the money given to consummate a Kinyan or a Kidushin, which will be extant the next day, an act that is transitory and will no longer be extant the next day cannot take effect the next day. (REBBI AKIVA EIGER (ibid.), though, appears to assume that a Chupah *can* take effect on the following day.)

The RI HA'LAVAN suggests that the act of Chupah cannot be done on Yom Kipur for a different reason. Even if it is not a Shevus, there is another problem. There is no way to make a Chupah -- it cannot be done with Bi'ah because Bi'ah is forbidden on Yom Kipur; a normal walk-under Chupah cannot be done on Yom Kipur because the Kohen Gadol must remain sequestered and cannot leave the Azarah. (Similarly, the new wife cannot come to join him there for a Chupah, either because it would be a breach of his Perishah, or because of the ruling of Rashi (Kidushin 52b DH v'Chi) and the Tosefta (Erchin 2:1) that prohibit women from entering the Azarah when not bringing a Korban.)

Rebbi Akiva Eiger adds that a Chupah cannot be performed at this point for an additional reason. The Gemara (Kesuvos 56a) discusses whether a Chupah which is not fit to be consummated with Bi'ah is a valid Chupah or not. The RAMBAM (Hilchos Ishus 10:2) rules that it is not a valid Chupah. Thus, a Chupah done on Yom Kipur is not valid since Bi'ah is forbidden on Yom Kipur, and the Chupah is not fit for Bi'ah. Even according to those who do not rule Halachically like the Rambam, and prohibit such a Chupah, our Gemara might be trying to avoid the issue of making such a Chupah because of the doubt cast on it in Kesuvos.

(d) The RITVA says that even if it is permitted to do the act of Chupah on Yom Kipur, there is still a concern that his wife will die while he is in the *middle of an Avodah* and he will not be able to interrupt to marry another wife, and make a Chupah, at that moment. (Chupah cannot be done through a Shaliach.)

(See also what we wrote at the end of the following Insight.)

13b

QUESTION: In the previous question (see Insight 1), we discussed why it is not possible to do an act of Kidushin before Yom Kipur on condition that it take effect on Yom Kipur. However, there is another question. Even if one cannot make a Kidushin take effect on Yom Kipur, the Gemara still did not have to deal with making two conditional divorces. The Gemara should have suggested that the Kohen Gadol divorce his [first] wife on condition that he goes into a synagogue, like the Gemara says, and he should be *Mekadesh* the second woman before Yom Kipur on condition that if his present wife dies, the second woman will be married to him retroactively *from before Yom Kipur*! Why did the Gemara not give this suggestion? (SHA'AGAS ARYEH #93)

This procedure for the second woman is better than marrying her and then divorcing her on condition. The advantage is that if his present wife does not die, then the second woman will have never been married at all, and thus she remains permitted to marry a Kohen in the future. The Gemara in Yevamos (43b) says that it is preferable to avoid doing an unnecessary act of Chalitzah to a woman who is Kesheirah l'Kehunah, because by doing so one is making her Pesulah l'Kehunah. Here, too, if the Kohen Gadol marries the second woman and gives her a conditional divorce, if the condition is fulfilled (the first wife does not die) then the divorce will take effect and the woman will be Pesulah l'Kehunah. But by giving her a conditional Kidushin, if his present wife does not die, then the Kidushin will never have taken effect and the second woman remains Kesheirah l'Kehunah!

(Since the Kidushin and the Chupah will be taking effect retroactively from before Yom Kipur, the answers to the previous question (Insight 1) will not apply here.)

ANSWERS:

(a) The SHA'AGAS ARYEH answers that a Kidushin on condition cannot be done here, because that would be a situation of Bereirah. This is a situation of Bereirah, because at the moment the Kidushin is to take effect it is not known whether it will take effect or not, and it is dependent upon a later event (the death of his present wife).

Giving her a divorce on condition that he goes into a synagogue, though, is not Bereirah; it is a normal Tenai (condition), for in that case it depends on an action that the person himself can choose to do (as Rashi says in Gitin 25b). Here, though, the condition on which the Kidushin depends (i.e. the death of his present wife) is an event that is beyond human control, and therefore it creates a problem of Bereirah.

The Gemara in Eruvin (36b) says that there is one opinion that holds that Rebbi Yehudah holds that Bereirah does not work ("Ein Bereirah"). Since the Gemara here is discussing the opinion of Rebbi Yehudah, it wants to avoid suggesting a situation of Bereirah.

However, what about the Gemara's suggestion to divorce the second woman on condition that his present wife does not die? That should also be Bereirah! The Sha'agas Aryeh answers that the RAN (Gitin 25b) differentiates between making a Tenai "on condition that something happens," and making a Tenai "on condition that something does *not* happen." When it depends on something actively happening, that is Bereirah. But when it depends on something passively *not* happening, that is not considered Bereirah, since it is only "Shav v'Al Ta'aseh." (For example, "You are married to me on condition that your father does not protest" would not be Bereirah, while "You are married to me on condition that your father grants permission" would be Bereirah.)

Therefore, the Gemara here says that the Kohen Gadol divorces the second woman on condition that the first one *does not die* (instead of *marrying* her on condition that the first one does die), and that is not considered Bereirah.

REBBI AKIVA EIGER (Teshuvos I:159) rejects this answer, because the Gemara still should have said that the Kohen Gadol marry the second woman on condition *that he walks into a synagogue* (and not on condition that the first wife dies), just like the Gemara suggests that he divorce his first wife on condition that he walks into a synagogue. At the moment that the first wife is about to die, the Kohen Gadol should go into a synagogue, making the divorce of the first wife and the Kidushin of the second one take effect at once.

(b) REBBI AKIVA EIGER (Teshuvos I:159) therefore suggests another answer. We know that doing an act of Kidushin or Gerushin on Yom Tov is prohibited mid'Rabanan as Shevus (Beitzah 36b). Perhaps not only is the actual act prohibited on Yom Tov, but fulfilling a condition which causes Kidushin or Gerushin to take effect is also prohibited mid'Rabanan, just like making the Kidushin or Gerushin itself on Yom Tov. The Rabanan permitted this lesser form of Shevus in order for the Kohen Gadol to be able to do the Avodah. (See Yerushalmi, cited in previous Insight 1:a.)

However, it is always better to do one act of Shevus than to do two (TOSFOS, Eruvin 35a, DH Bo). Therefore, the Gemara suggests that the Kohen Gadol marry the second woman and give both wives conditional divorces. By doing so, the Kohen Gadol only needs to do one act of Shevus on Yom Kipur to effect the divorce (by going into a synagogue, he causes his first wife to become divorced), instead of doing two acts of Shevus (if he gives the second woman a conditional Kidushin, then when he goes into a synagogue he is causing both the divorce of his first wife to take effect and the Kidushin of the second woman to take effect).

(c) Alternatively, perhaps it is not possible to make a Kidushin on condition that it take effect retroactively, because in order to be married to the second wife he would also have to make a *Chupah* on condition as well. A Chupah normally works because it generates "Chibas Bi'ah," intimate feelings between the man and the woman. As such, it is logical that the act of Chupah cannot be done on condition, because if the Kidushin never takes effect (i.e. if its condition is not fulfilled), it will be, retroactively, an act of Pritzus -- generating feelings of intimacy with a woman who is not his wife. Therefore, the Rabanan did not suggest making conditional Chupah.

This answer, incidentally, will suffice to answer what we asked in the previous Insight as well; why we do not allow the Kohen Gadol to be Mekadesh and make a Chupah on the condition that it take effect retroactively when the first wife dies, *if* she dies on Yom Kipur. (M. Kornfeld)

QUESTION: The Gemara concludes that the proper course of action that the Kohen Gadol should take in order to ensure that he remains married to one wife on Yom Kipur is to give a Get to his wife which will take effect only on condition that he enters a synagogue. If, on Yom Kipur, he sees that she is about to die, he then runs into a synagogue, thus divorcing her retroactively, so that when Yom Kipur began he was married only to the second wife.

Why does the Gemara say that he has to go into a synagogue *before* she dies in order to fulfill the condition? The divorce should take effect just the same if he goes into a synagogue *after* she dies! (We find that a divorce takes effect retroactively from the time that both partners were alive, even though the husband is now dead, e.g. if he says, "You are divorced on the condition that I do not return within a year" and he dies within the year, see Gitin 76b.)

ANSWERS:

(a) The TOSFOS YESHANIM and TOSFOS HA'ROSH answer that although it is true that the *husband* does not have to be alive at the time the condition is fulfilled in order for the Get to be valid, the *wife* does have to be alive. (The reason for the difference requires further elucidation, as the CHASAM SOFER points out in Teshuvos Rebbi Akiva Eiger #127.)

(b) The RITVA answers that indeed, he could divorce his wife by going into a synagogue after she dies. The only problem is that after she dies, he will be an Onen and he might be so overcome with grief that he will forget to go into a synagogue after she dies. Therefore, the Rabanan instituted that he must go into a synagogue before she dies.

(c) The OR SAME'ACH (Hilchos Gerushin 8:21) suggests that at the moment that his wife dies, the Kohen Gadol becomes "Nidcheh" (disqualified) from the Avodah, because when she dies, the second wife's divorce becomes annulled, and it turns out that from the beginning of the day he was married to two wives.

The rule concerning a Korban is that once it was Nidcheh, it remains Nidcheh, even if the invalidating factor is removed. Similarly, if the Kohen Gadol was doing the Avodah and became invalidated from the Avodah for some reason, then even if that factor is removed, he remains invalidated. In this case, if the Kohen Gadol goes into a synagogue after his wife dies, and thus the divorce takes effect retroactively and it turns out that he was never married to two women at one time on Yom Kipur, nevertheless since at one moment he was Nidcheh from performing the Avodah, he remains Nidcheh.

(The comparison here needs further clarification, because in the case of the invalidating factor that was removed from a Korban, that Korban was only corrected *from that time on*, but there was still a point in time when it was invalid. Here, though, the invalidating factor of the Kohen Gadol is being removed *retroactively*, so that it never existed.)

(d) The RASHASH suggests that none of the stipulations in our Sugya are working retroactively, to make one divorced or married retroactively. Such conditions would involve questions of Bereirah (determining a present outcome based on a future event), and the Gemara in Eruvin (36b) discusses various opinions whether Rebbi Yehudah holds of Bereirah or not (see Sha'agas Aryeh #93, and previous Insight).

It must be that the condition which the Kohen Gadol stipulates is not working retroactively, but rather prospectively (mi'Kan u'l'Haba). When the Kohen Gadol goes into a synagogue when he wants to divorce his first wife, the divorce takes effect from that time on, and not retroactively. Therefore, it is obvious that he must fulfill the condition to divorce her *before* she dies, for otherwise it will be too late (one cannot divorce a dead person).

However, how does the Rashash explain the Gemara which explicitly says that the Kohen Gadol must go into a synagogue to divorce her "l'Mafrei'a" (retroactively)? The Rashash explains that "l'Mafrei'a" here does not mean "retroactively," but it means before he starts doing the Avodah of the day. That is, "l'Mafrei'a" does not describe when the divorce takes effect. Rather, it refers to when the Kohen Gadol should fulfill the condition to make the divorce take effect -- he should do it *before* the Avodah. The divorce itself, though, takes effect only from that on onward.

(According to the Rashash, the Kohen Gadol should assess his wife's state of health right before the Yom Kipur Avodah begins. Right before he begins the Avodah he should look at his first wife's state of health, and if she appears to be mortally ill, he must go into a synagogue so that the divorce takes effect and he remains married to the second wife only. If it appears that she is going to live, then he does not go into a synagogue, and the second wife automatically becomes divorced.)

QUESTION: The Beraisa states that the Kohen Gadol may perform the Avodah when he is an Onen but may not eat any Kodshim in that state ("Makriv Onen v'Eino Ochel"). Rebbi Yehudah in the Beraisa adds two words, "Kol ha'Yom" ("all day"). The Gemara asks what he means by "Kol ha'Yom."

Abaye explains that Rebbi Yehudah means that the Kohen Gadol who is an Onen is brought from his house to the Mikdash in order to perform the Avodah ("l'Ha'aviro mi'Toch Beiso"). Rashi explains that Abaye means that *it is a Mitzvah* for the Kohen Gadol to do the Avodah while he is an Onen, because it will lessen his distress.

Why does Rashi say that it is a Mitzvah for the Kohen Gadol to do the Avodah while he is an Onen? Where did Rashi learn that it is obligatory for the Kohen to do the Avodah in order to lessen his grief? The simple understanding of Abaye's statement is that Rebbi Yehudah is adding that not only may the Kohen Gadol continue performing the Avodah when he was in the middle of the Avodah and became an Onen, but he is also permitted to *start* doing the Avodah as an Onen! This is indeed how RABEINU ELYAKIM explains Abaye.

ANSWER: Rashi was bothered by Rebbi Yehudah's phraseology. If Rebbi Yehudah is saying that the Kohen Gadol is permitted to start doing the Avodah as an Onen, why does he use the words "Kol ha'Yom?" He should have said "*even* if *he is at home*" or something similar. What does the phrase "Kol ha'Yom" have to do with the Kohen Gadol's right to start doing the Avodah as an Onen? It must be that he is *required* to do the Avodah at *every moment of the day* because it is a Mitzvah, and that is why Rebbi Yehudah said, "Kol ha'Yom."