[Avodah] Geirus

[Chana Luntz]

I wrote:

> : On the other hand, if you do hold KOM is a requirement, does that mean
> : that you hold that the ger is *not* bound by the shavuah made on Har
> : Sinai (which makes a certain degree of sense, because as a goy he was
> : clearly not), and hence he had to enter into his own shavuah? ...

And RMB wrote:

> I'm missing why you have a need to cast KOM into another halachic
> category. The gemara discusses nedarim, it mentions KOM. Why can't KOM
> stand as its own beryah?

Start from the other end.  A shavuah is X. If KOM fulfils the requirements
of X, then how can you say KOM is *not* a shavuah?  If it walks like a duck
and quacks like a duck?  That is what is odd about it.

In addition, let us look at the gemora reference to KOM. It is a bit of an
off hand reference in the gemora - ie it goes like this: - the gemora (in
Yevamos 47b) is discussing a Braisa which says "echad ger vechad eved
meshachrer" [ie the same is for a ger and a freed eved]- and the gemora goes
one to say k'salka datech l'kabel mitzvos, [do you think this is in relation
to the acceptance of mitzvos] v'riminhu  [set against it another braise]
bema devarim omrim b'ger, u'beved shichrur ain tzarich l'kabel [in relation
to what is this said, a ger, but in relation to a freed eved, there is no
need to accept].  [Note for those discussing the whether an eved needs to
accept mitzvos thread, this is the starting point, see the rest of the
gemora there and the rishonim].

Now the understanding of KOM as we know it comes primarily from Tosphos and
the Rosh.  Tosphos, inter alia, is dealing with a particular problem in that
gemora, which says a) conversion is a form of mishpat, and needs three
dayanim (which also means it needs to happen during the day) - but the
gemora then seems to go on to say that if bideved a woman toyvelled from
tumas nida then that tevila counts as a tevila (note the Rif and probably
the Rambam has a different understanding of what this whole gemora is
saying).  But women who toyvel for nida a) do it at night; and b) don't do
it in front of three dayanim, and even if you hold that one dayan is
sufficient, as is according to an opinion in Sanhedrin, well that is one
male dayan, not the mikva lady).  Tosphos says to deal with the problem-
well the ikar part of the whole procedure is kabalas ol mitzvos, and so that
is the bit that has to occur in front of three dayanim, and during the day
etc.  ie When the Torah is talking about a "mishpat", it is talking about
KOM.

Now the Shulchan Aruch brings this position of Tosphos and the Rosh (pretty
much in toto - ie that you need KOM for an adult, in front of 3 judges,
during the day, but that then if you have mila and/or tevila at night or not
in front of three it is not me'akeves). Then he notes that this is not true
according to the Rambam and the Rif, where tevila and mila not in front of
three and/or at night are me'akeves.  [The Aruch Hashulchan I note is not
convinced that the Shulchan Aruch is right about the Rambam, as he believes
that the Rambam hold that only tevila not before three is me'akeves, not
mila (that is what the Rambam says, the Shulchan Aruch would seem to be
understanding the Rambam as learning mila from tevila, whereas the Aruch
Hashulchan does not think one can do that - no one seems to suggest though
that the Rambam and the Rif learn KOM from either mila or tevila, as falling
into the category of mishpat].  What seems to be happening here is that,
contrary to his usual position, the Shulchan Aruch is poskening in favour of
Tosphos and the Rosh, against Rambam and the Rif.

> But in any case, maamud har Sinai was a beris.

The thing is, the fundamental basis for conversion is not based on this
gemora, but on a gemora in Krisus 9a "k'chem" [like you] k'avosaichem, ma
avoseichem lo nichnasu l'bris ele b'mila, u'tevila v'harotza'as hadam af hem
lo yichnasu l'bris ela mila v'tevila u'ratza'as hadam.  This is where the
Rambam gets his din from.  The bris of a convert imitates that of our
forefathers at har Sinai.  This is echoed in the gemora in Yavamos
immediately prior to that I cited above, as there is a discussion there
about whether any of these elements is me'akev (given that, for example, our
foremothers could not do mila etc etc) with the conclusion that both mila
and tevila are meakav when mila can be done (but obviously mila is not
me'akev when it cannot be done, as otherwise we would not have any female
converts).

> Is entering a beris the same as making a shavu'ah?

No idea.  But we know that we are deemed to have made a shavuah on Har Sinai
from the separate gemora in Nedarim that I quoted to you.  [The reason this
gemora is quoted is in connection with the halacha that one cannot (except
to motivate oneself) actually make a shavuah to fulfil a mitzvah, because
ain shavuah chal on shavuah.]  Those who hold that KOM is a requirement in
gerus also cannot learn it from the definition of bris, since otherwise it
would be brought in that gemora in Krisus - which discusses bris
specifically.  Ie, neither the shavuah we are deemed to have made on Har
Sinai, nor the mishpat that a ger is deemed to have in front of three
dayanim constituting KOM are considered by the gemora to constituent
elements of "bris".  But they do seem to parallel one another.

> And if so, can two distinct shavu'os bring two different people into the
>same beris? Because that's what it would take to cast KOM into something
>from mesechtes Nedarim.

Err, I think it is rather the other way around.  Somehow the bris on Har
Sinai also constituted or enabled or gave rise to a shavuah.  KOM certainly
seems to behave like a shavuah in terms of its elements - are their
linkages?

 
> Maybe a better model is a qinyan. Not in the sense of acquiring an
> object, but like the qinyan sudar used to appoint a shaliach.

Qinyan is a private contractual relationship - so I can't see it falling
within the definition of mishpat.  Certain types of Shavuah do. I had a go
at tnai also - which again seems to explain how the thing works to uproot
the "transaction" and is suspended, but doesn't work brilliantly with
mishpat.  On the other hand, the whole idea is that KOM is the beginning of
the mishpat (that is why it has to be during the day) with the mila and the
tevila being the gemar din, which then can be at night (this is all
Tosphos).

> But again, I'm only playing the game of fitting KOM into a bigger kellal
> because I am expecting that in a future email you will show me why there
> is a need to.

There are two questions at work when we are dealing with our modern
scenarios (I am talking adults here - I hope I have shown that, in the words
of the various nosei kelim on the Shuchan Aruch, KOM is not shayach to
katanim - go look there).  The first is, while the Shulchan Aruch, following
Tosphos and the Rosh, requires KOM - is there scope in follow other opinions
(arguably inter alia, the Rambam and the Rif - ie the alternatives brought
in the Shulchan Aruch itself) in non ideal situations such as modern day
Israel and dispense with KOM (that is argued to be Rav Uzziel's position.  I
note that RAF claims to have sources that show differently, but certainly
the source that RDE posted from Piskei Uzziel does not seem to bear out that
assertion).

The second is, what happens if somebody purports to accept the mitzvos. Ie
this is not the case discussed in the gemora in Bechoros where somebody
*says to beis din* they accept all mitzvos accept one, nor is it the case of
the gemora in Yevamos, where the contrast is conversion against the person's
will versus KOM.  But it is often the modern day case.  The Shulchan Aruch
does not speak to that.  Nowhere does it say that KOM involves devarim
shebelev - the most it says, at least implicitly, is that KOM is a "mishpat"
given that it poskens like Tosphos.  RMF etc may explain it as devarim
shebelev, but this is in and of itself a novel explanation - ie an attempt
to explain what KOM is.  Because in order to work out how to hold in a case
where there seems to have been a valid mishpat, but that mishpat is now
argued to be being overturned, years afterwards, by a form of anan sadi, we
have to understand what that "mishpat" really is.  And if you say KOM is a
berya l'fi atzmo, then - while RMF can go one way, Rav Goren can go another,
Rav Druckman can go another, and there is no way of commenting on any
position.  So long as the person told beis din they were mekabel ol mitzvos
and the beis din accepted it on face value - we are then at sea.

> ...
> : Dunno, but this is why I find the whole concept of KOM, that you seem to
> : swim through so easily, so messy and complicated.  Can somebody give me
> : another paradigm for KOM that is not a shavuah and not devarim shebelev?
> 
> How can we? RMF and RCOG already felt compelled to give their teirutz
> as to how it's an exceptional davar shebeleiv. I would think therefore
> it can't be done in simpler terms.

Yeah but I confess I see RMF and RCOG's answers as being very difficult.
Anan sadi in mishpat - particularly in a mishpat that has formally
concluded?  That involves us usurping the position of the dayanim many years
later and seems a very dangerous principle to adopt - how many cases can we
open in that way?  While I can understand what is driving them to this
position, it certainly leaves open alternative positions that would seem to
do less damage to our judicial institutions.

> Tir'u baTov!
> -Micha

Regards

Chana