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

[Chana Luntz]

RYG writes:

> Even if we follow Rashi's explanation that the Gemara's
> (Kesuvos) question of "v'lidrosh l'hu d'ones shari" means that we
> should tell the women that they will be permitted to their husbands,

I wasn't aware there was any machlokus - it rather seemed to follow,
particularly from the reference a few lines down to the wives of cohanim for
whom the solution does not work.  How do you explain this portion if one
does not follow Rashi (ie what difference is there between stam wives and
wives of cohanim if not the permissibility of their husbands)?

 the
> Gemara's reason for this is 'ones', to which Tosfos raise the
> objection that with regard to arayos there's no exemption for 'ones',
> since there's a rule of ye'hareg v'al ya'avor, to which RT answers that
> *that latter principle*, of ye'hareg v'al ya'avor, doesn't apply to
> non-Jewish aggressors.  There is absolutely no indication from the
> Talmudic dialectic that RT meant to say that his novelty in and of
> itself is a reason for permitting the women to their husbands; even the
> Meforshim who understand RT that way may be inferring it only m'svara,
> either by analogy to the bo'el or based on the conceptual innovation of
> RT.


I think it is more than that.  The final line discussing Rabbanu Tam's shita
is "d'lo shayich l'mamer echad l'baal v'echad l'boel b'bias mitzri".  Now to
my mind the straightforward reading of that is simply - that the concept of
the issurim which apply - echad l'baal v'echad l'boel do not apply when the
biah in question is that of a mitzri.  I can see how you want to say, well
despite the reference, this is only brought in the context of a heter in
relation to the boel, so we don't know what Rabbanu Tam says vis a vis the
baal.  But at most I think one could get out of that was you did not know
what Rabbanu Tam thought vis a vis the baal (but given the other gemoras
elsewhere, he must have thought .. ie this part is svara).  But the simple
reading still seems to be that Rabbanu Tam regards the principle of echad
l'baal and echad l'boel as being eliminated in this case, not just that half
of it is eliminated, being the boel half.  

> The Gemara in Sanhedrin is an involved discussion of the guidelines of
> mesiras nefesh for kiddush ha'shem; I see no subtext whatsoever of a
> consideration of the subsequent status of Esther or anyone else.

I agree with that specifically in the gemora in Sanhedrin.  But we know from
Megila 13b "shehaysa omedes mcheko shel Achashverosh v'toveles vyosheves
b'cheko shel Mordechai".  If Rabbanu Tam was also not explaining this, then
he needs some other explanation for this - and you would then have to
explain why that other explanation did not help with the general arayos
problem, ie why there was a need for Rabbanu Tam's explanation in the first
place.  This bit is indeed svara, but svara in the wider context of what we
know about Esther HaMalka.

 
> > Whereas it seems to me that afkinu in this context comes from left
> > field, its not picked up before and not picked up after, whereas you
> > would expect this to have been tussled over and discussed this way and
> > that way (just the way this Rabbanu Tam has), so at least we know all
> > the possibilities.  It just doesn't fit here.
> 
> I don't understand your point here; it wouldn't have been discussed by
> the Rishonim, since there was no explicit responsum and in any event
> the issue didn't arise until the fifteenth century, and why the Aharonim
> don't discuss the DM has absolutely no relevance to its plausibility as
> an interpretation of the Gedolim.

The DM's use of Afkinu is clearly an extension over what is in the gemora.
And afkinu is such a useful tool that if it could be used in the way that
the DM wants to use it, you would expect it to come up all over the place.
The reason that the DM's explanation is indeed sensational as you describe
it is precisely because it is sui generis, there is no case like it.  That
militates against it being an accurate explanation.  If the Gedolim had
indeed used afkinu, you would have expected there to be an explosion of
afkinu related commentary.  And if anybody else had thought that you could
use afkinu in such a situation, given the opportunities you would have
expected lots and lots of similar afkinu references.  Whereas vis a vis the
Rabbanu Tam, well it does depend on whether or not you think my read is the
most natural one.  If you agree that it is the most natural one, then it
would be most likely that the first commentaries on it would be those who
are not comfortable with the natural read (such as the Trumas Hadeshen) and
hence feel the need to explain it differently.  And only then would you
expect those who supported the more natural read to jump to its defence and
explain the other problems with supporting the natural read (namely its
apparent contradiction in other gemoras).  That seems to be what has
happened. And against a background of the whole thing being discussed, there
might well have been some psak going on.

 
> I don't understand your argument at all; to the extent that he was
> mekadesh "according to his daas only", we actually *lose* any ability
> that we might otherwise have had to be mafkia the kiddushin, by virtue
> of the very fact that he didn't make it contingent on our da'as! In
> other words, afke'inhu means that since he made his kiddushin dependent
> upon our da'as, he has given us a veto.  You argue that this scoundrel
> hasn't done so, so then how do we overturn his kiddushin?  [Even if he
> has lied and mislead the woman into thinking that he was mekadesh
> a'da'a'ta d'rabanan, that probably isn't sufficient grounds for a case of
> kiddushei ta'us.]

Sorry, what I perhaps should have said is that there appears to be, as per
Tosphos in Baba Basra 48b, two kinds of, or possible explanations for,
afkinu.  The first is where the kiddushin was in fact k'hogon, ie everything
was done properly, but the get aspect was not k'hogon (a tnai in the get, an
annulling of the get before it reached the woman etc), and the justification
for afkinu was kol mekadesh adata d'rabbanan mekadesh.  And the second one
is where the kiddushin itself was not k'hogon - such as the case in Yevamos
110a where somebody snatched away the woman before she had a chance to be
properly mekadesh as an adult to the husband she had as a minor.  Where, as
mentioned in that Tosphos, it is difficult to say that the person was
makadesh adata d'rabbanan, given that they acted shelo k'hogon. If they had
intended to be mekadesh her according to the daas of the rabbanan they would
never have snatched her in the first place.  And that is why the rabbis
needed in those cases to employ hefker beis din hefker to make the kiddushin
money ownerless (or deem his biah, a bias znus if kiddushin was done that
way).

Now you can argue it both ways.  If the person really meant what he said
about daas Moshe v'Yisroel, then he was giving the Rabbis the right annul
the wedding from the beginning if he did not act according to their daas (ie
the first case as per tosphos).  And if we are talking about their daas as
spelt out in some sort of takana then that is very easy to see.  It is
slightly more difficult if there is no clear takana to be pointed to, as he
is relying on daas he does not know about and could not be expected to know
about at the time, but still by no means impossible.  It would be easier to
get there if there were clear guidelines given at the time of marriage (one
of the ideas of a prenupt).  But it also means understanding adata
d'rabbanan as applying in today's context.

On the other hand, if it can in fact be shown that the person in general had
little respect for rabbinic authority of any kind (true in a lot of cases
today, where numbers of those who technically fall within the category of
mesorev haget are not religious - albeit in many of those cases the wife
does not care either), it can be argued that the whole kiddushin was lo
k'hogan and hence the route to afkinu is hefker beis din hefker (kiddushei
biah being almost non existent today).  Now my understanding is that hefker
beis din hefker might be somewhat easier to apply today than working out
whose daas he relied on at the time of his kiddushin, and whether that can
be applied to the rabbis of today.  But the only precedent we have for this
kind of afkinu is where the kiddushin was lo k'hogan.  And further, one of
the things that distinguishes the society of today from previous societies
is the level of general lack of respect for rabbinic authority (not to
mention Torah authority) generally.  The intention to act properly is not
the given it once was.

It also depends on who it is you are trying to help.  Is it just nice
religious women who would not dream of remarrying without a rabbinically
sanctified resolution of their marriage, or is it also, perhaps, the
offspring of parents who didn't necessarily care less, but where there was
an Orthodox marriage in there somewhere because it was the conventional
thing to do.

> Yitzhak

Regards

Chana