QUESTION: Rav holds that Ne'ilah is Davened at night, and it replaces the
Tefilah of Ma'ariv. The Gemara shows that the Tana of a Beraisa disagrees
with Rav, and rules that Ne'ilah does not replace Ma'ariv; it is Davened
*before* nightfall. How, then, can Rav say that it is Davened at night? The
Gemara answers that there is a Machlokes Tana'im about Rav's Halachah.
Another Tana holds like Rav, that Ne'ilah is Davened at night, and Rav is
ruling like that Tana.
Where do we find a Tana that rules Ne'ilah is Davened at night? The Gemara
cites a Beraisa in which the Rabanan and Rebbi Yosi argue regarding the
Tevilah of one who became a Ba'al Keri on Yom Kipur. The Rabanan maintain
that he may be Tovel only until Minchah, but after Minchah has passed he may
not be Tovel, and Rebbi Yosi maintains that he may be Tovel during any part
of the day. The Gemara understands the argument to be based on whether
Ne'ilah may be said at night, after Yom Kipur, or whether it must be said
during the day. The Rabanan maintain that Ne'ilah is recited at night, and
therefore once a person has said Minchah, there is no need for him to be
Tovel on Yom Kipur in order to Daven. Rebbi Yosi maintains that Ne'ilah must
be recited during the day, and therefore even if one has Davened Minchah he
may immerse during the day in order to Daven Ne'ilah.
The Gemara later cites a different Beraisa (regarding a person who wants to
be Tovel but he has the name of Hashem written upon his skin), in which the
Rabanan and Rebbi Yosi argue regarding a different issue -- whether Tevilah
at the prescribed time is a Mitzvah or not ("Tevilah b'Zemanah Mitzvah").
According to Rebbi Yosi, Tevilah b'Zemanah is a Mitzvah, while according to
the Rabanan, Tevilah b'Zemanah is not a Mitzvah.
If Rebbi Yosi holds that Tevilah b'Zemanah is a Mitzvah, then perhaps that
is the reason why he says that one may be Tovel all day on Yom Kipur, and
not because he requires Ne'ilah to be said during the day! If so, there is
no source to say that *any* Tana agrees to Rav that Ne'ilah is Davened at
night. Both Rebbi Yosi and the Rabanan may hold that Ne'ilah is Davened by
day, and they can be discussing a situation where the person already Davened
Ne'ilah (the Gemara suggests this possibility later in the Sugya); the
Rabanan do not allow Tevilah since Ne'ilah was already Davened and Tevilah
b'Zemanah is not a Mitzvah, while Rebbi Yosi allows Tevilah since Tevilah
b'Zemanah *is* a Mitzvah. On what grounds, then, does Rav argue with the
Beraisa that said Ne'ilah is Davened by day and that it does not exempt one
from Ma'ariv?
ANSWERS:
(a) TOSFOS YESHANIM (DH Michlal) says that indeed, since Rebbi Yosi holds
Tevilah b'Zemanah Mitzvah according to the Gemara's conclusion, there is no
clear proof from this Beraisa that any Tana agrees to Rav and holds Ne'ilah
is Davened at night. But where does that leave Rav? How can Rav be arguing
with the Tana of a Beraisa?
A simple suggestion would be that Tosfos Yeshanim means that we will have to
fall back on the principle of "Rav Tana Hu u'Palig" (Rav is a considered a
Tana, and therefore he has the authority to argue with a Mishnah or
Beraisa). But TOSFOS YOM HA'KIPURIM suggests another interpretation as
follows. MAHARI BEN LEV writes in a Teshuvah (1:13&48) that from a question
asked by Tosfos in Kidushin (60b DH Aval) it seems that there is one
condition under which *any* Amora may argue with a Tana. If it is *at all
possible* to interpret another Tana as arguing with the first Tana, even
though it cannot be conclusively proven, the Amora can assert that he holds
it to be a Machlokes Tana'im and he may rule against the first Tana who
clearly contradicts his ruling. If so, Rav may assert that he interprets the
argument between the Tana Kama and Rebbi Yosi to be whether Ne'ilah is
Davened by night or by day (and they are discussing a situation where the
person who say Keri did *not* yet Daven Ne'ilah), and he is ruling like the
Tana Kama who holds that it is Davened at night.
(b) TOSFOS YESHANIM further suggests that Rav may have held that the "Rebbi
Yosi" of the first Beraisa is not Rebbi Yosi ben Chalafta (that is, the
normal Rebbi Yosi of the Shas, who holds that Tevilah b'Zemanah Mitzvah),
but rather it is Rebbi Yosi b'Rebbi Yehudah -- the same Rebbi Yosi who holds
Tevilah b'Zemanah is *not* a Mitzvah in the second Beraisa. Since the
wording of the Beraisos is so similar, Rav did not accept that possibility
that the two Rebbi Yosi's in the two Beraisos were two different Tana'im.
How can Rebbi Yosi say that he may be Tovel only until Minchah in the second
Beraisa, if he is the same Rebbi Yosi that allowed Tevilah all day long in
the first one? It must be that the first Beraisa is discussing when he did
not yet Daven Ne'ilah, and the second one is discussing when he already
Davened Ne'ilah. In that case, the Rabanan of the first Beraisa (who do not
allow a person to be Tovel after Minchah) agree with Rav that Ne'ilah is
Davened at night (and therefore he may not be Tovel on Yom Kipur for
Ne'ilah).
(That of course only answers the contradictory rulings of Rebbi Yosi, but
leaves the rulings of the Rabanan as contradictory. Why do they allow
Tevilah all day long in the second Beraisa? We must answer either that they
are two different groups of Rabanan, or else that the first Beraisa is not
taking into account the Mitzvah of Tevilah. That is, the Rabanan of the
first Beraisa mean to say that *if not for* the Mitzvah of Tevilah
b'Zemanah, Tefilas Ne'ilah alone would not permit Tevilah by day (as TOSFOS
DH Iy d'Matzli suggests -- see CHART #19)
(c) TOSFOS HA'ROSH, citing Maharam, suggests another explanation (REBBI
AKIVA EIGER offers the same explanation).
The only way to learn that Rebbi Yosi and the Rabanan both hold that Ne'ilah
is Davened by day, is by suggesting that they are discussing a situation
where the person already Davened Ne'ilah. There is a problem with
understanding the Beraisa like that, though. If they are discussing a person
who Davened Ne'ilah, why do the Rabanan of the first Beraisa (and Rebbi Yosi
of the second) say that Tevilah is allowed until "Minchah?" Ne'ilah is
Davened after Minchah; they should have said "until *Ne'ilah*!"
It is because of this that Rav preferred to learn that Rebbi Yosi and the
Rabanan are arguing over whether Ne'ilah is Davened by day or by night (and
the Rabanan of the first Beraisa -- and Rebbi Yosi of the second -- hold
that Ne'ilah is said by night). Now the wording of "until Minchah" is
appropriate; Ne'ilah is not Davened by day and cannot allow Tevilah to be
performed on Yom Kipur.