[Avodah] Geirut for marriage

[Chana]

> : RMB wrotes:
> : > Except that I still don't find it clear. He writes, "chutz miqabalas
> : > hamitzvos sheme'aqeves..." which although is the language of the
Tosafos
> : > and the Rosh WRT requiring a beis din (3 kesheirim meeting during the
> : > day) does not prove he holds like them WRT sefeiqos in the qabalah due
> : > to the person having ulteriar motives. And the Rambam is more machmir,
> : > requiring the other steps to also require BD, not that qabbalas ol
> : > mitzvos before a BD is less mandatory.

I replied:

> : I struggle to see how you can see this in the Rambam ...

And RMB responded:

> I was looking at the SA when I wrote that. Not what the Rambam says,
> just translating what the SA says he says.

But the thing is, any reading of the SA has to be plausible.  If you tell me
that what the SA says is nonsensical, then the general Orthodox assumption
is that you are reading the SA wrong.  Similarly, we all agree that the SA
knew how to read the Rambam.   So if he says that the Rambam says something,
it must be a plausible read in the Rambam (it may not be the only read, but
it must be a plausible read).  If there is no way that one can read this
into the Rambam, then the most logical explanation is that you are reading
the SA wrong.

Before we get into your discussion of the Rambam, it seems to me that in the
discussion (including in the discussion that follows) one of the problems we
are having is that there are two different concepts that are both being
identified under the rubric of what you call QOM and they are getting
confused.  The two concepts are as follows:

a) QOM as a legal action - very similar to a shavuah in fact, in which the
person says in front of a beis din of three - "from here on in, I will keep
the mitzvot".   This is what Tosphos and the Rosh understands when they
refer to QOM.  It is this quasi (if not in fact) shavuah that they refer to
when they say that it is meakev, that it has to happen before a beis din,
that it has to happen during the day, etc etc  If this quasi shavuah does
not happen before  beis din and during the day, etc etc, then there is no
gerus, the person is a much a goy as he was before, regardless as to whether
any mila or tevila has happened or what was in his heart.

b) QOM as something that the person resolves to do in their heart.  Now this
form of QOM may well happen many moons before they ever come before beis
din.  In fact, in the case of a true ger tzedek, it is often the resolve and
determination to keep the mitzvos that keep them banging on the door of beis
din to let them in and pushes them to overcome all the hurdles in their
path.  But of course, in theory, it could also happen after a mila and a
tevila.  Somebody could go through a mila and a tevila (eg due to falling in
love with somebody) and then only later decide that really keeping mitzvos
is for them.  It is probably reasonably unlikely (although possible) that
this particular sensation would come over them just at the point at which
they were in front of beis din.

Of course the two overlap.  If the person has b) already - what they are
doing in front of beis din that constitutes a) is making an vow and
affirmation before beis din of what was in their heart already.  And if they
didn't have b) they are making a false vow in front of beis din.

Now when the SA poskens like Tosphos and the Rosh, that means that he holds
that a) the legal action is a necessary component of the geirus process.
You then argued that the SA holds that the Rambam was just more machmir,
that he required mila and tevila before three *as well* - but that means
that you are saying that the SA says that the Rambam holds that QOM as the
legal action is a necessary component of the geirus process - and it is this
that I cannot see how you can read into the Rambam, or aver that the SA
reads into the Rambam.

> But since we are revisiting this discussion, we can return to the
> Rambam...


> Because in 12:17 we see the Rambam calling QOM a separate part of
> becoming Jewish from the mitzvah maasis of geirus. (BTW, note also in
hilkhos
> teshuvah, he opens by telling you the mitzvah is saying vidui when you
> do teshuvah. The mindset is a precondition; the act is the mitzvah. I
> think there is a leshitaso here -- the Rambam doesn't count pure
> thought and emotion among the mitzvos.)
> 
> The language of 12:17 is "kol hagoyim kulam sheyisgayru viyqablu
> aleihen kol hamitzvos shel Torah .. harei hein keYisrael lekhol davar..."
He
> says you need QOM in addition to geirus. Two things.

Yes he does say kol hagoyim kulam sheyisgayru viyqablu aleihen kol hamitzvos
shel Torah .. harei hein keYisrael lekhol davar...".  But there is a leap in
the logic here to say, as you have done above that this means that "QOM is a
separate part of becoming Jewish".   He does not say this.  He says that if
the ger has this he is like your standard born Jew.  But that does not
necessarily mean that if he does not have this, that means he is not a ger
but a goy.

In fact, if it was an intrinsic part of "becoming" Jewish, then you would
not need to mention it here.  The Rambam does not need to mention all goyim
sheyisgaru and do tevila - because tevila is an intrinsic part of
sheyisgaru, without which the goy remains a goy.  If QOM was in fact meakev
to the geirus process, then there is no need to mention it.

So what does he mean when he says this.  As a tangent, I would just point
out that even the "harei hein keYisrael lekhol davar..." is an over
simplification of the Rambam's position.  The Rambam is very explicit (eg in
Hilchos Melachim perek 1 halacha 4) that a ger is not keYisrael lekhol davar
- he cannot be appointed a king, not a dayan in many cases, nor even a
leader of tens.  And I don't believe anybody holds that this is a
contradiction in the Rambam.  Rather, here he is talking about the
overwhelming majority of scenarios and there he is talking about a few
select ones which are exceptions.  But in that sense he is not here being
precise.

But getting back to the main point.  If you understand the Rambam, as the
Bach does, that he does not require QOM kol ikar - that is, not only does
the Rambam not require the legal action of Tosphos and the Rosh, but he
doesn't even require the mindset that goes with b), the resolve in the heart
at the time of the geirus and as a precondition for geirus, then of course
the Rambam needs to say this.

Because there is another case (or series of cases) that of the Yisrael
mumar.  Now what the deal is with a Yisrael mumar depends on whether he is a
mumar l'hachis or a mumar l'tavon.  Whether he is a mumar l'davar echad or a
mumar lkol hatorah kula.  Whether he is a mumar l'avodah zara or mechallel
shabbas befarhesia or with different aveyros.  But the point is that the
Yisrael mumar does not have, depending on the kind of mumar he is, the
status of a standard Yisrael l'kol davar.  His wine may be assur to drink,
it may be permissible to lend to him at ribus.  It may be permissible to
hate him.  And the list goes on and on.  In fact, at the extreme, he has the
status "k'akum".

Now, if you hold like the Bach that the Rambam does not require QOM kol
ikar, then if the Rambam had merely said that "kol hagoyim kulam
sheyisgayru.. (without any mention of QOM) harei hein keYisrael lekhol
davar...".  then that would have suggest that in fact a ger who did not
fulfil the mitzvos and behaved like a Yisrael mumar, in fact got a free pass
on all the halachos that we mention above those apply to a Yisrael mumar
(you could drink his wine if he was over on avodah zara, for example).  But
since the Rambam is not necessarily going to privilege a ger over a born
Jew, this is a logical short hand statement to say precisely that.  That is,
the other side of the equation, which the Rambam does not need to mention
here as it is irrelevant, but which he does mention in Perek 13, is that a
ger who does not have QOM is, in many respects, like a Yisrael mumar (and at
the extreme, if they worship avodah zara, they are like an akum, just as a
Jew is).

I am not saying this is the only read of this Rambam, your read is possible,
but it is a very weak thread to hold you read on when everything else points
the other way and this read is perfectly tenable.

> The Bach you refer to (YD 268, "vekhol inyanav") also doesn't deny the
> Rambam requiring QOM. Rather, he says the Rambam and Semag only require
> BD for tevilah. The question he addresses is whether QOM requires BD,
> not whether becoming a Jew requires QOM altogether -- even bedi'eved.

No, you quoting from too high up in that Bach.  He starts by discussing that
the Rambam and the Semag only require BD for tevila, but later on he
says"D'katuv haRambam (perek 13 halacha 17) d'kasher af al pi shelo hayta
l'shem kabalat mitzvoth kol ikar"

> I would think the Bach's understanding of the Rambam is mistabeir from
> the notion that it's geirus that requires BD, and this other part of
> becoming Jewish does not.

Well at least, I guess that given my division into two types of QOM, it
would seem that you appear here to agree that the Bach, and I think also
from what you have been saying, the Rambam, do not require type A QOM, ie a
ma'aseh in beis din - the most you appear to be demanding is that there
actually be some sort of QOM in the heart, akin to teshuva.  But as this is
clearly not what the Shulchan Aruch is talking about, I think that we get
back to my original comment. The Shulchan Aruch goes with the Rosh and
Tosphos, and requires a ma'aseh in beis din. And since it is virtually
impossible to read the Rambam to say that he requires a type a) QOM, that
cannot be the way he holds, either which means that he does not posken like
the Rambam.  So arguably whether or not the Rambam who does not require a
ma'aseh QOM in beis din requires something in the heart seems somewhat
academic, unless you are going to a Rav Uzziel type argument that b'shas
hadchak we should rely on the Rambam.

The far more key question for us today is what would the view have been of
Tosphos and the Rosh if the ma'aseh beis din occurred but it turned out that
this was clearly a false vow, and there was never any intention to take on
any of the mitzvos - because that indeed tends to be the situation that
occurs today.  The formal requirements of the legal act are generally
adhered to, just not always the devarim shebalev.

But anyhow, if we do want to go back to the Rambam and talk about relying
upon him in a Shas hadchak situation - then the Bach's view is that the
Rambam rules the conversion kasher af al pi shelo hayta l'shem kabalat
mitzvoth kol ikar.  You might be able to argue with the Bach, which is what
you appear to be doing, and say that actually the Rambam requires a form of
QOM in the heart, just not a legal act, what I don't think you can say is
that the Rambam requires a legal act and therefore that he is being machmir
on the position of Tosphos and the Rosh.  And I don't think it is a fair
reading of the Bach to say that he is agreeing with you. 
 
> This notion that there are two stages: mitzvas geirus and QOM, fits the
> layout of pereq 13. When he defines geirus, the Rambam defines only
> the steps of geirus -- "sheyisgayru", not those of "viybalu aleihen
> kol hamizvos".

OK, so here is your argument that the Rambam has two aspects, one is the
formal legal one which has nothing to do with QOM, and one is the duty of
the heart, akin to teshuva.  Now there are various problems with this.  As
you indicate "I think there is a leshitaso here -- the Rambam doesn't count
pure thought and emotion among the mitzvos" - well I think that could be
said generally.  Devarim sheb'lev aino devarim.   And certainly when we are
dealing with something that involves a determination of legal status, you
end up in an impossibly amorphous state that I don't see anybody ever
countenancing.  So even if your reading of the Rambam were the correct one,
nobody is going to posken like him l'halacha, as it is an impossible test
from a practical point of view and a completely new and radical concept.
But since the Rambam himself was eminently practical, I find it impossible
to attribute this kind of attitude to him either, and think a far more
likely read is one that avoids that kind of radicalism.

But the other thing that seems to come out of your test is that there need
be no defining moment.  The mila and the tevila can happen without this QOM
in the heart, and then an hour, a day, a week, a month or months later maybe
there can be this QOM.  This suspension seems to work both ways.  So if
somebody now who at the time of his conversion had absolutely no intention
of keeping the mitzvos, he only did it to satisfy his girlfriend, suddenly
decides it is for him, according to you then suddenly it is all fine.  On
which basis the argument then seems to become somewhat academic.  Because
there is would seem to be no need for a new procedure.  We just need chazar
b'teshuva like any Yisrael mumar.  

> So, we don't get to defining QOM for certain until 13:15. Although
> again,
> we know from 12:17 that the Rambam required it.

As mentioned, there is absolutely not necessity to read 12:17 as the Rambam
requiring it.  All he requires is that for us to treat him in all respects
as a kosher Jew, he has to behave like a kosher Jew, and not like a mumar.

> We also see the requirement in pereq 13, halakhah 17, where the Rambam
> contrasts someone we are unsure did QOM with one we established his
> tzidqus but afterward "chazar ve'avad AZ". In the first case,
> Jewishness
> is a matter of cheshash until QOM is resolved. In latter case, the
> Jewishness was already chal, so the person is a meshumad, but Jewish
> with all the dinim -- the Rambam lists qidushin and hashavas aveidah.

There are two points where you and I are reading this differently.

a) the word choshashin.  You understand choshashin to mean that we are in
doubt about whether there is a real, halachically valid, conversion.  I
understand choshashin similar to the way it and chashad are used throughout
discussions regarding a Yisrael Mumar, hilchos shechita etc.  You are
entitled to have suspicions about a person in various circumstances where
there are reasons to believe that they are not performing mitzvos correctly,
and if you have legitimate reasons for your suspicions, you are entitled to
take preventative action.  Such suspicions can be overruled in certain cases
by a chazaka, such as a chazakas kashrus, but in other cases they are not.
Here, it seems to me the far more straightforward reading is that, according
to the Rambam, we do not give a ger a chezkas kashrus, eg eating his house,
until it is clear that he has accepted upon himself the mitzvos of kashrus.
That does not mean his conversion is in doubt.  Of course, according to
Tosphos all this is unnecessary, the QOM was a formal act in front of beis
din, so every ger presents with a chezkas kashrus, but according to the
Rambam they do not necessarily.

b) You are reading the "afilu chozer" as only going on one who has
"sheyitbaer tzidkuto" whereas I read it as going on each and every ger in
the sentence, whether he has sheyitbaer tzidkuto or not.  While the subject
of afilu chozer is potentially ambiguous, the fact that he later says that
it is a mitzvah to return his lost object "meachar shetoyvil na'aseh
k'yisrael" supports my reading.  If your reading were correct, that portion
should read that you were only required to return his lost object like a Jew
after he toyveled and his tzitkus was revealed or his QOM took place.

> And a weak proof from the SA and the Bach arguing about whether it
> requires BD bedi'eved, which kind of distances one from the question of
> whether it is required altogether.

But since I hold the SA and the Bach don't argue, this is hardly a proof.
The Bach summarises the position of the Rambam as not requiring QOM kol
ikar, but states that given that the Rosh and Tosphos are cholek and say
that even without QOM in beis din it is meakev b'dieved, therefore we posken
like them.  That is exactly my view as to what the SA says as well.

> BTW, the Tur that Bach is commenting on says that QOM bifnei BD is
> me'aqeves, and he also has the Rif saying that tevilah and milah
> require
> a BD even bedi'eved. Nothing about the Rif saying that *instead* of QOM
> requiring BD.
> 
> What I can't find is the Rif himself, to see the original words.

The Rif is in Yevamos 16a (Perek Revi'I on the Mishna Hamachzir  but a
couple of pages on).  The Rif, of course, doesn't mention QOM at all.  The
thing is that if you understand the development of this whole thing, it is
Tosphos who puts the QOM and the beis din requirement together from two
separate sugyas in the gemora (and then throws in a third to argue that in
fact the tevila does not need beis din) - the linkage is by no means obvious
and thus not surprisingly the Rif makes no mention of it (it is a very
typical Tosphos type of move, and not one that one would expect to find in
the Rif as that was not generally the way he thought).

Again, if there is no real way of making a plausible read that the Rif
requires QOM before beis din, then I don't see how you can argue that the SA
says he does, especially when there is a very simple and straightforward
read of the SA which does not require him to make these statements on the
Rif and the Rambam.  If you understand that he holds, like the Bach, that
the Rif and Rambam are cholek on Tosphos and the Rosh, then it is very
simple to explain the SA.  He is using his usual pattern of a "stam" and a
"yesh omrim".  The difference here is because of the weight of the yesh
omrim (the Rambam and the Rif, ie the two he would usually posken like) he
mentions them by name rather than writing it as a "yesh omrim".  But
basically he is doing his usual stam and yesh omrim, where the halacha is
k'stam, but the yesh omrim has sufficient weight to be brought.  And no need
to try and read impossible things into the Rambam and the Rif, or suggest
that the Shulchan Aruch himself had difficult reads.

> Tir'u baTov!
> -Micha

Shavuah tov

Chana