[Avodah] Just what ARE the rules of p'sak anyway?

[Chana Luntz]

Iwrote:

> > This seems all very odd to me, because the reference to the view of 
> > Rabbanu Tam as brought in Tosphos in Kesuvos 3b, and again in
tosphos 
> > Sanhedrin 74b, is brought as an explanation as to why a woman is not

> > (and in the case of Sanhedrin particularly, why Esther HaMalka was
not 
> > - to tie in two threads) required give herself over to death (given 
> > that adultery is one of the big three that is yarog v'al yavor).
And 
> > clearly the subtext of that discussion is that Esther was not
thereby 
> > making herself forbidden to Mordechai.  And that is precisely the 
> > Rivam's
> 
> I don't see as clearly as you do that that is indeed the 
> subtext of the discussion.

The gemora in Sanhedrin 74b is discussing the fact that one must give up
their life rather than violate any halacha at all, even changing his
shoelaces, if that act is in public.  And it asks on this "v'ha Esther
farhesia havei?".  Now on "V'ha Esther farhesia havei" tosphos says
teima d'hava lei l'akushei arios havei - ie that she was engaged in
arayos and everybody agrees that on murder and arayos it is yarog v'al
yavor and similiarly one can question on Kesubos 3b where it says that
[the problem is that] there are modest women who will allow themselves
to be killed and the gemora there answers and derives that anus is
different - but what is the question there it is good what they do to
allow themselves to be killed mishu gilui arayos *vterutz Rabanu Tam
d'ain chayvin l'misa al bilas oved cochavim mishum d'rachmana afkerai
l'zarea d'oved cochavim k'damrinan [Yevamos 86a] v'zaramas sussim
zaramasam, umitoch kach haya rotze Rabbanu Tam l'hetir bas yisroel
[brings case of non Jew who had relations with her then came to
megayer].. "d'lo shayach lmemar echad l'boel l'oved cochavim dehavei
k'bias behema"

Similarly in the Tosphos in Kesuvos on 3b "uledrosh l'hu d'ones sharei"
- and if you say but behold is says in perek ben sore umore (sanhedrin
74a) on all averos yavor v'al yarog chutz m'ovdas cochavim  v'gilui
arayos  v'shifchas damim *v'terutz Rabbanu Tam d'ain chayavim misa al
bias mitzri etc etc (pretty much the same language as above, and then
bringing the case of Esther -  v'lo parich v'ha esther galui arayos
havei mashma mishum arayos lo haya mischayava  umitoch kach hitir
rabbanu Tam etc... D'lo shayich l'mamar echad l'baal v'echad l'boel
b'bias mitzri d'havei kibias behama ... "

And note that the Rosh's version of the Tosphos has in the words  "v'lo
mikarei biah"

So I don't understand how you are reading these tosphosim and saying
this is not the subtext of the discussion.  Tosphos is bringing a
question - why is it not required for a married woman to give up her
life rather than be violated and states that Rabbanu Tam answers this
question by saying that the  biah of an oved cochavim is like the biah
of a behama and therefore there is no such requirement.  How do you read
the words "v'terutz Rabbanu Tam"?  It then goes on to say "mitoch kach"
- ie because of this explanation Rabbanu Tam - either was prepared to or
did permit a ger who had previously had relations with a married women
to marry her, but, at least as Tosphos understands Rabbanu Tam, the
explanation is an explanation of the actions of Esther, who after all
was understood to be a married woman (who went back and forth to
Mordechai) and then mitoch kach.

Now that is not to say there are not other explanations for why what
Esther did and what the tznios do is OK (other Rishonim bring them), and
the same is true for the heter for the goy who was megayer (the Rosh
says explicitly that he approves the heter but not for the reason of
Rabbanu Tam) but it seems pretty straightforward to me from the language
of the text that Tosphos understands Rabbanu Tam's explanation as I have
articulated it.

Now you can say, as other commentators have said, that Rabbanu Tam would
have other reasons to prohibit the wife going back to the baal, and
hence the heter only applies to the boel.  The counterargument to that
is if that were the case, then a) Esther would be prohibited to
Mordechai, and b) the tznius women would have a point.  It can then be
argued that Rabbanu Tam accepts both that it has to be anus for the
woman to allow her go back to the husband, as well as this reasoning
which only applies to the boel - which I think is the point of various
of the commentators.  However, the Tosphos does not read like that -
because the tosphos is specifically commenting on the situation of the
tznios and of Esther.  There is absolutely no need to bring Rabbanu
Tam's terutz here regarding sussim otherwise, it is completley
superfluous.   Now it is also possible that whoever put together the
tosphos misunderstood Rabbanu Tam, but taking the Tosphos as written, I
struggle to see how such an interpretation is tenable.

> > criticism of Rabbanu Tam in both places that in such a case the biah

> > of an oved cochavim should not assur her to the baal (for which he 
> > quotes Kesuvos 26b) and specifically vis a vis Esther what was the 
> > kasher avaditi - ie if this was the reason it was OK for Esther, why

> > did it make a difference if she actively went to the king or not.  I

> > agree that it then goes on to say that on this basis Rabbanu Tam 
> > permitted a woman to her gentile captor who later  converted, but
that 
> > is not the thrust of the discussion in either place.
> 
> Whenever a Talmudist cites a law as a proof of his position, 
> we always have two possibilities; either the dissenter 
> differentiates between the proof case and the disputed one, 
> or he counters "arvach arva zarich" and refutes any arguments 
> for the assumption of his opponent.  [I don't mean to be 
> condescending, merely pedantic :).] You assume the latter is 
> the case here; many of the sources I cited apparently assume 
> the former.

But continue to read the Tosphos inside - "v'ain nire l'Rivam d'ha al
yadei bias oved cochavim nesra l'baala kdamar ...  - ie this terutz of
the Rabbanu Tam does not seem correct to the Rivam, because it says in
various sources (and he brings proof texts both from Kesuvos 3a and
26b)that the biah of an oved cochavim makes a woman assur to her husband
... Now how could the Rivam object to Rabbanu Tam on this basis if he
did not understand Rabbanu Tam as saying that the biah of an oved
cochavim did not make her husband assur.  I agree that there are these
two possibilities in general when a Talmudist cites a law as proof of
his position, but as you can see from the language of the Tosphos,
Tosphos did not  bring Rabbanu Tam's ruling and then cite the law as a
proof, they brought the law and then as a by the by, brought the halacha
l'ma'ase that Rabbanu Tam derived from the law.  And the whole context
of the Rivam's rebuttal is about the law and the application to Esther.

I do agree that vis a vis the heter for the boel, since there are other
reasons, such as the Rosh's, to allow the boel even disregarding Rabbanu
Tam's reason, if all we had was Rabbanu Tam's heter, we could
distinguish between the proof case and the case of the husband, but that
is why I keep going back to the language of the Tosphos, and not the
discussion on whether a goy boel can marry her on conversion in the
Shulchan Aruch.

> > Is it possible (and I don't know the DM's position on this) that he 
> > held like the Mishna and gemora on Kesubos 26b, which seems  to
imply 
> > that a married woman in general even if not the wife of a cohen 
>> becomes forbidden to her husband on captivity  on being violated and 
> > not like the gemora on 51b which seems to hold that a  captured
woman 
> > who is not the wife of a cohen is permitted to her husband, even if 
> > she is seen doing things to help the bandits like hand them arrows,
on 
> > the ground that she is doing this because she is afraid of  her
life, 
> > in which case it is considered like anus and hence she is permitted
to 
> > her husband?
> 
> I am not that familiar with this Sugya, but as far as I can 
> see, everyone accepts the Mishnah on 26b, 

Sorry, I was not expressing myself precisely here - what I was saying
was does he hold like what seems to be the pshat in the text of that
Mishna, that it applies to both the wife of a Cohen and the wife of a
Yisroel (as opposed to the other positions, that read into this Mishna
the wife of a Cohen only)?

but there's a 
> disagreement between the Rishonim whether to accept the 
> implication that you mention, that even an eishes yisrael 
> becomes forbidden to her husband; Maran rules like the Rambam 
> that she doesn't, while the Mapah cites (as a Yesh
> Omrim) the opinion of Tosfos, Rosh and Ran that she does [0]. 
>  As to how to reconcile the latter position with other 
> Halachos that state that we aren't hoshesh for consensual 
> relations with the captors, see Beis Shmuel [1] and the 
> sources he cites.
> 
> > Because this situation as you describe it above in the time of the 
> > Trumos Hadeshen seems rather odd vis a vis the women married to 
> > Yisraelim - because prima facie as you describe it it would seem to 
> > fall fair and square within the gemora on Kesubos 51b - so,  unless
the 
> > DM did not hold like the gemora on Kesubos 51b (as it would  seem
the 
> > Rivam might not have, given his citation of 26b), then there must
have 
> > been some other factors which took the case out of the gemora on 
>> Kesubos 51b - unless of course the key question was the wives of the 
> >Cohanim, which
> > prima facie would be forbidden on the basis of the gemora on Kesubos
> > 51b, but then it is hard to see how afkinu helps any better.
> 
> The TH [2] is indeed ruling within the context of the Gemara 
> on 26b, according to the opinion of Tosfos et. al., cited 
> above.  [He claims to know of no 'Gaon' other than the Rambam 
> who disagrees, and considers it impossible to rely on him 
> against what he considers the consensus view.]

OK so basically what you are saying is that if the TH had held like the
Rambam and the Shulchan Aruch, at least the wives of the Yisroelim would
not have been assur in the first place, but because he held the other
side of that machlokus, suddenly you need to introduce afkinu.  If
however he had taken the position b'shas hadchak we rely on the Rambam,
despite it not being the consensus, then there is no need to introduce
afkinu.  Does the TH ever mention afkinu, or is that just the DM's
understanding of it?

> We have, then, independent of the question of whether RT 
> would actually permit the woman to her husband, no Halachic 
> source that RT's view is accepted at all by the Poskim, and 
> the SA implies that we do not accept it, as per my previous mail.

Agreed.  The point is that here were are clearly scurrying around
looking for minority opinions to rely on.  And afkinu seems much more
monority than Rabbanu Tam.  To posit afkinu in this kind of case,
without any kind of citation at the time seems very odd - particularly
as it seems completely out of character for afkinu.  In the cases of
afkinu in the gemora, the point is that the husband did something wrong
as the gemora states in Yevamos 110a, he acted  shelo k'hogen- eg
married improperly or sent a get improperly  and therefore, as the
gemora states, asu bo shelo k'hogen, they the rabbis acted shelo k'hogen
by uprooting the kiddushin.  But here, what did the poor husbands' do?
They married intending a marriage and then found their marriages torn
apart by gentile capture. And further, afkinu works, as is made clear in
Yevamos 110a, by, if he made kiddushin by way of kesef, by the use of
hefker beis din hefker, ie they take away his property retrospectively
so he was never able to effectuate kiddushin, and in the case of
kiddushin by way of biah, by deeming his biah a bias znus.  Now these
poor husbands, not only have they lost their wives to gentile capture,
but you are deeming the rabbis to have deprived them of their property
rights and/or deemed their biah biat znus?  Now if you want to argue
mekach taus, then maybe they thought they were getting a marriage, but
if they had known their wives were going to be captured they would never
have married (somewhat similar to Rav Moshe in the last Teshuva in
Iggeros Moshe Even HaEzer vol 4 ie if the wife had known the husband was
going to die when called up for his army service in a few days time, and
she would fall for yibum to a mumar who refused to do chalitza out of
political conviction, and so he not get thrown out of his political
party, she would never have gone ahead with the marriage, so it is a
mekach taus).  Nor does afkinu help the Cohanim.  Whereas the Rabbanu
Tam is a rishon, and the fact that the SA does not accept his position
is not so relevant to the time of the Trumas Hadeshen.  What is more the
SA does accept that the wives of Yisroelim should have been able to go
back to their husband's m'dina, and the Trumos HaDeshen rejects that, so
why is it not more likely that he is relying on a position that was at
least in his line of tradition, even though there was some considerable
opposition to it, than on some reference not brought by either him and
based on completely different kinds of cases in the gemora and which
center on punishing the husband.

> I can, indeed :); the SA rules [3] that the offspring of a 
> non-Jewish man and a Jewish woman, even a married one, is not 
> a Mamzer.

Yes but why?  Because kiddushin is not tofes b'hem (see the gemora in
Yevamos 46).  But why is kiddushin not tofes b'hem?  You get a lot of
this from various psukim which are explained to say that the grandson by
way of your daughter is your [grand]son, ie you can ignore the paternity
of the non Jew (but not the maternity).  Arguably this links in to this
idea that their biah does not count, making your grandson fully Jewish.
Don't think it is quite necessary, but seems to be one of the ideas that
could be underlying all this (on a theoretical level - although in
general we follow the mother where there is a pgam, except when it comes
to mamzer - but this is the exception vis a vis mamzer.  I am not sure
by any means this though).  Remember of course that Rabbanu Tam didn't
pull this idea out of thin air.  It is stated explicitly in Yevamos 96a
as the reason why twins whose mother converted after they were
conceived, but before they were born, do not do yibum one for the other,
because of this principle and even though we know that the father is the
same - so there is it specifically a yichus question and accepted by
everybody.  Don't know if it would make any different halacha l'ma'ase
in this regard either.

 
> > > Yitzhak

Regards

Chana