[Avodah] Geirut for marriage

[Chana]

RMB writes:

> First point of disagreement (POD #1): I don't see this as a "reading of
> the SA", which is a phrasing that makes it sound like the SA's words
> can be taken different ways.

I agree this is POD (#1) as indeed I think they can.  There is the way that
one might naively, not knowing how the Shulchan Aruch generally works, read
these words, and there is the more standard way.

 
> However, here's the SA YD 268:3:
>     ... except for qabalas hamitzvos, which is me'aqeves if not during
>     the day and before 3.
>     And according to the Rif and to the Rambam,
>     AFILU bedi'avad, shetaval o mal bifnei 2 o balaylah me'qeiv
>     ve'asur beYisraelis

Actually you are leaving bits out, so let's quote the whole si'if:

"All the matters of a ger whether making known to him the commandments to
accept them whether the circumcision whether the tevila needs that there be
three kosher men to judge and during the day (Tosphos and the Rosh in perek
Hacholetz) and this is davka l'chatchila but bideved if he was circumcised
or immersed before two (or relatives)(hagahos Mordechai), at night, or even
if he was not immersed l'shem gerus except a man immersed for semen emission
or a woman for nidah he is a ger and permitted to a Jewish woman; except for
the kabalas mitzvos that prevents if it isn't during the day and before
three.  And to the Rif and to the Rambam even bideved if he immersed or
circumcised before two or at night it prevents and he is forbidden to a
Jewish woman.  But if he married a Jewish woman and had a child from her we
do not invalidate him."

> Where in "afilu" do you see "instead"? There is no aval lehaRif
> vehaRambam, the connective is a "ve-". Here is clearly adding to the
> previous.

Because this is the standard pattern of the Shulchan Aruch.  I could bring
you dozens of examples, but the one that springs to mind (only because it
was Purim last Sunday) goes like this:

"Shulchan Aruch Orech Chaim Hilchot Megila v'Purim Siman 689 si'if 1: All
are obligated in its reading, men and women and converts and freed slaves
...

Si'f 2: Whether one reads or whether one listens to the reading one fulfils
one's obligation, and this is if one hears from one who is obligated in
reading.  Therefore if a deaf person or a minor or an idiot reads, and one
hears from him, he does not fulfil his obligation, and there are those who
say [vyesh omrim] that women cannot exempt the obligation of men."

Now the  general understanding of this format of the Shulchan Aruch is that
there is an essential din brought "the stam" and then there is a second
opinion brought "the yesh omrim".  And then there is a rule that "stam
v'yesh omrim, halacha k'stam".  Now  based on this, Rav Ovadiah and all the
Sephardi poskim hold that a woman can exempt a man's obligation to read the
megilla [Note that as Ashkenazim follow the Rema, they hold differently].
Why?  Because the Shulchan Aruch brings the first rule as a stam which
allows everybody who is obligated in the first section to exempt others, and
then brings another opinion "the yesh omrim" that says that women cannot
exempt. 

But the standard format is, as brought here "*v*'yesh omrim".  But according
to you, because the Shulchan Aruch uses a connective "v- and does not use
the word aval, then the Yesh Omrim must be "adding to the previous" not
contradicting it, and hence the opinions must be understood as cumulative
meaning that Rav Ovadiah's understanding of the Shulchan Aruch, and
everybody else's is wrong, and indeed Sephardi men cannot be exempted by
hearing the megilla from women. 

As I said, there are loads and loads and loads of these.  Now I agree, if
you didn't know the rule about a stam and a yesh omrim, then you might well
assume that the yesh omrim here was cumulative.  But once you go through
enough of them, and you look at the format, and you see how the Shulchan
Aruch is structured, it becomes clear that this is not the way he works. The
Shulchan Aruch is a shorthand work, with certain structured rules.  And his
stam and yesh omrim format involves him bringing one set of rishonim who
provide the ikar hadin, and then bringing another set who provide an
important alternative opinion, but which does not constitute the ikar hadin.
And the only difference in our case of geirus to these other cases is that
he brings the names of the yesh omrim, but the vav is the same.

Note by the way that what you are saying vis a vis gerus is an even more far
reaching understanding of how the Shulchan Aruch works that just that the
stam and the yesh omrim are cumulative.  Because you are saying two more
things here:

a)  You are saying that the Shulchan Aruch holds that the second opinion
agrees fully with the stam except to the extent that he brings a difference.
In the megilla case, that would mean saying that the Behag, for example,
agrees fully with the Rashi and Rambam et al opinion except to the extent
stated, and you can read into his opinion from the other opinions.  That is
an extraordinary claim.  The more usual way of understanding this is that
the two opinions involve two different world views, if you like.  In the
megilla case, where there is a conflict between a Bavli and a Tosephta, the
stam opinion is that Bavli trumps the Tosephta.  The Behag's opinion is a
way of reconciling the two by postulating two different levels of
obligation.  Two very different world views on it (and eg the Kol Bo and the
Smag have different world views again).  But in our geirus case, you want to
say that the Shulchan Aruch, by virtue of bringing the second opinion under
the first and with a "v" connecting, means that he reads the second opinion
as incorporating most of the elements of the first (such as kaballat ohel
mitzvoth), despite them not mentioning it.  That is the equivalent of saying
that the Shulchan Aruch reads the Behag as incorporating the elements of the
first opinion that are not directly in contradiction. And so on all over the
Shulchan Aruch.  And when I challenge you to show where the Shulchan Aruch
can get this from in the language of the Rambam and the Rif, you say who
knows, but it must be the case, because of your reading of a vav.

b) and not only this, but you then want to go back to the original language
of the second opinion see what he has to say, look at some of the bits that
the Shulchan Aruch does not quote from his opinion and incorporate that into
the total halacha.  In the megilla case, that means eg going back to the
Behag, finding some quotes in the  Behag, saying that because the Shulchan
Aruch brought a yesh omrim without an aval, we need to read those halachos
as brought by the Behag but not the Shulchan Aruch into our understanding of
kriat megilla.  And so on all over the Shulchan Aruch.  Because that is what
you are trying to do here.  You are saying that the Shulchan Aruch, by using
a vav as a connector, is making the din cumulative, and we then need to go
back to the wording of the Rambam, examine them, and what the Rambam then
says which is not quoted by the Shulchan Aruch is relevant for our total
understanding of the Shulchan Aruch's view on gerus.  Whereas what I have
been saying all along is that the Rambam is the yesh omrim opinion, not the
Shulchan Aruch's essential opinion, and thus going back to discuss his
understanding is as relevant to the ultimate halacha as the Behag's is in
megilla (actually the Behag's is much more important in megilla, because the
Rema does clearly base his view on him, and hence examining him is relevant
for Ashkenazim).

> :                                        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...
> 
> Somewhere in the Rambam. Not necessarily the two peraqim of the Yad
> we're looking at, or even the Yad altogether. It could even be implied
> by diyuq halashon and seeing whose words the Rambam echos. IOW, I doubt
> our own ability to know what the plausible reads are.

As you can see from the above, by learning the Shulchan Aruch in this
radically different way, you are opening up and enormous field of what the
Shulchan Aruch must have read into all of the yesh omrim opinions that he
brings, despite there otherwise being no evidence of this.  

But I would point out something also.  The Shuchan Aruch is not a stand
alone work, or at least is not conventionally understood as such.  The
Shulchan Aruch wrote a much more extensive work called the Bet Yosef in
which he sets out the rishonim that he regards as relevant and where.  If
the Bet Yosef does not bring a Rambam on the subject, I think it safe to
say, and I think you are putting yourself out on a limb on this if you
disagree, that he is not then learning complicated limudim from other
sections of the Rambam that we have no possibility of guessing to.  And the
Bet Yosef quotes the Rambam in various places in perek 13 and perek 14 of
Hilchot Issurei Biah, and nowhere else - so I think it is a stretch to then
say that in his capacity of as the Shulchan Aruch he is then learning things
out of other places in the Rambam when he did not find them significant
enough to quote in his round up of the rishonim in the Bet Yosef.

> POD #2:
> : 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....
> 
> Where do you see this in Tosafos or the Rosh?

OK here is a full translation of the Tosphos on Yevamot 45b d"h "mi"  

"Did she not toyvel for nidah: And this is surprising because it says there
(46b) that a convert needs three [judges] because "judgement" is written in
connection with him, and even according to the one who says at the beginning
of Sanhedrin (3a) that according to the Torah one [judge] is also kosher in
any event it is not the way of women to bring a man with them at the time
they toyvel and a woman is not suitable to judge as it writes in Nida (49b)
all who are kosher to judge are kosher to witness and it is brought in the
Yerushalmi in Yoma that since a woman is not able to bear witness she does
not judge and Devorah did not judge rather she taught them and they judged
or alternatively al pi hadibur was different, and there is to answer that
this which they need three this is for the kabbalat mitzvot but not for the
tevilla even though it says below (47b) that it teaches that the Talmidei
chachaimim stand outside this is l'chatchila that it is better, and there
are those who explain that since it is known to all that she toyveled it is
as if they stood there and anyway there is a kasha that the tevila of a
nidah is at night and below (47b) they say we do not toyvel a ger at night
but they did not write " judgement" except on the acceptance of the
commandment it is fine, and that which they do not toyvel him [at night]
this is l'chatchila m'drabbanan."

That is, Tosphos is bothered by a statement in the gemora that suggests that
if a woman toyveled for nida that would be sufficient - but how can that be,
because it happens at night and not in front of men, and we need "mishpat"
for a convert (mishpat derived from a pasuk, so it is a d'orisa
requirement).  So their solution is that when the gemora says that they are
talking about mishpat that needs three and during the day, that is only
talking about the kabalat mitzvoth - and the requirement that there be three
by the tevila is only l'chatchila and d'rabbanan.  But so long as there was
kabalat mitzvoth in front of three, then that fulfils the d'orisa
requirement.


 I think this is some
> later lomdus. Why does a shavu'ah require BD? I believe the actual lashon
in
> the rishonim is that QOM is the iqar of geirus, and thus requires BD.
> IOW, the only question is which parts of geirus require BD.

It is not that a general shavuah requires a beit din - I was just likening
it to a shavuah, but you don't need to use the term.  What Tosphos says is
that there has got to be a kabalat mitzvot in front of three qualified
judges in the day.  And if you don't have that no gerus.

Now you could quibble about what is meant by kabbalat mitzvoth.  I was
giving you the reading that is the strongest in your favour (and I do think
it is mashma from the Tosphos) - ie that there was a statement of acceptance
of all of the mitzvoth.  And alternative reading can be implied from the
Rosh, which is that all that the kabbalat mitzvoth is referring to is that
the ger accepts upon himself to go off and do mila and tevila, which can,
then, at least bideved, be done without three judges in attendance.

But if you don't think it is a kind of quasi shavuah - then what is
happening at that key "sitting" of beis din, which is what Tosphos so
clearly requires even no mila or tevila occur in front of them.  How do you
read Tosphos if they are not requiring some sort of "legal action" that can
be summed up as kabbalat mitzvoth?

Note by the way if you go and read the Beis Yosef he explains all this -(it
is letter gimmel on siman 268).  He brings this Tosphos almost in its
entirety, he then brings the language of the Rosh  He then has to deal with
- how does the Rif and the Rambam understand this very perplexing gemora
that seems to suggest that if a woman toyvels for nidah, meaning at night
without male attendees, it seems to suffice for her tevila, and he explains
that the Rif and the Rambam hold that this whole gemora was not talking
about regarding the woman as a kosher ger, but to kasher her children - and
hence that frees up the mishpat to refer to mila and tevila which is the
most straightforward understanding of it and hence avoids any need to talk
about kabbalat mitzvoth.



> POD #3:
> : 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.
> 
> You just created a new category -- someone who isn't a standard Jew nor
> a goy. Unless you're classing him with avadim Kenaanim, that's an
> entirely new concept to me and in either case would require major
> evidence that people can fall into this "no man's land".

No, I am not creating a new category.  I am referring to an old category,
that of a Yisrael mumar.  A Yisrael mumar is *not a standard Jew*. The
halachas that apply to him are not standard.  All I believe the Rambam is
saying is that a ger if we don't know that he is shomer mitzvoth, has to be
treated as a Yisrael mumar until we know that he is.

> The Bach is a daas yachid in how he understands the Rambam, and only
> presents his version of the Rambam in order to reject it. I don't see
> why you return to the Bach so frequently.

Because the only person I know who says that the Bach is necessarily a daas
yachid is you.  If you want to read the Rambam like you do, you are in
direct contradiction with the Bach.  Now I understand you want to say he is
a daas yachid, but what I am asking you to do is show me somebody else who
says that the Bach is a daas yachid, and that you are the standard reading.
But my reading of the Beis Yosef fits with the Bach.   If you are coming out
against a major achron like the Bach, I would expect a bit more support for
your reading from other than your interpretation.
 
> IOW, why not take the same tack with the Bach as you do with the SA.
> Since the Bach appears to deny the Rambam's explicit requirement for
> QOM, why not assume you're misreading the Bach?

Well, partly because my reading of the Bach is actually Rav YH Henkin's
reading of the Bach (that is where I got it from, as I told you last time).
And because there is plenty of other muttering in the olam about minority
positions that deny the need for KOM.  Ie you have your Rav Uzziel's etc
etc.  We are talking major talmidei chachimim here, not just me. 

And partly it is because I did precisely what I asked you to do.  When I saw
the Bach I went to the Rambam and had a look to see if his position as I
understood it could indeed be seen in the Rambam.  And in my view indeed it
can.  So here we have, in my view, a reading of the Rambam by the Bach that
makes sense in the Bach and makes sense in the Rambam, ie it is plausible.
I asked you to do the same with the Shulchan Aruch.  Go find me a reading of
the Rambam that works with the explanation that you claim the Shulchan Aruch
makes as to the Rambam.  But you don't seem to be able to do that.  All you
say to me is who knows, maybe it is from somewhere that you and I can't (and
maybe nobody can) identify. 

> A mumar who marries a Yisraelis, the qidushin is chal. Not so the
> person who is nisgayeir but doesn't accept QOM. They are different things.

And this, of course, is that ikkar POD.  I am saying that, according to the
Rambam, a person who is nisgayeir but doesn't accept QOM, his qiddushin is
chal.  And that seems to be the bit you are struggling to get.  You are so
determined that the Rambam must require QOM for geirus, that you cannot see
a reading that says that he doesn't.  

> Except it forces you to take neither the Rambam nor the SA at face
> value. (As per above; which is why I didn't make this POD #6.)

But I am taking the Rambam at face value, my face value is just different to
yours.  I see your reading as very forced and weak - I don't think it is
face value at all.  And I certainly think my reading of the Shulchan Aruch
is at face value.  It is just that face value has to be in the context of
the way he brings generally brings halachos.  

> But as you appear to agree, in my citation later on he does later down
> say the Rambam requires QOM, albeit without a BD.

No. I don't believe I said anything of the sort.

> So here's how I read the Bach's "kol ikar"... The tevilah wasn't
> lesheim
> QOM explicitly, however since it was for a mitzvah, there is some kind
> of
> connection to QOM in the tevilah. IOW, "kol ikar" modified the tevilah,
> which is the feminin noun in the "shelo hayta", not QOM. I don't see
> how
> you can read this part of the Bach as referring to anything but the
> need
> for lesheim QOM within the tevilah, not QOM itself.

So you are postulating that the Bach suddenly magics up a new requirement of
QOM within tevila, in order to then say well the Rambam doesn't require it.


> I'm not sure the first part is true. It would appear, e.g. the Bach,
> that QOM is a prerequisite. The whole chiddush of ger qatan is that al
> daas BD can stand in, to be affirmed when the qatan becomes a bar
> mitzvah.

Just to note that I am skipping whole bits, but I don't see this anywhere in
the Bach.

> POD #8:
> Yes, I am saying we're chosheish whether he's Jewish, not whether he's
> a mumar. As per my point in POD #5, that saying he can't marry a Yehudis
> means there is more than mumarus afoot.

And this is again getting to the essence of the disagreement.  I am saying
we are not choshesh whether he is jewish, but whether he is a mumar.  And if
he is a mumar, as with any mumar, one would (and should) not marry a nice
Jewish girl to him l'chatchila.  But bideved, if it happened, the kiddushin
is chal.

> You also lump cheshash and cheshad as synonyms. They aren't, and that's
> relevent here. Cheshad is a statement of accusation. Cheshash is
> entertainment of doubt. It's relevent that this is a cheshash in
> particular.

I don't regard chashad and chashash as synonyms.  Rather Chashash is a state
before Chashad.  It is where you are entitled to protect yourself because
you do not know the situation. Chashad is where you have real reasons to
accuse.  If you have a chashash you might need to inspect the knives
l'chatchila, if you have a chashad his shechita may not be kosher.
Similarly with a Jew and other forms of kashrus. Traditionally, because most
Jews were frum, they presented with a chezkas kashrus which they had to
lose, there had to be a Chashad.  But in more modern times that is not true.
Hence the Aruch HaShulchan famously said that one cannot grant anybody a
chezkas kashrus on his being known to be a Jew, unless you know a few more
things about him, such as that he washes before bread and teaches his
children to do so after him.  Why, because today the fact that somebody is
known to be a Jew is no proof that he keeps kosher.  And we have to be
choshesh anybody until we establish some basic simple tests. 

My understanding is that the Rambam had a similar test vis a vis gerim.
Since you cannot be sure that anybody who is known to be a ger is shomer
mitzvos, since so many traditionally weren't, so you have to be choshesh
them until we establish some basic simple tests. Not that their kiddushin is
not chal b'dieved, but that we are not going to allow them to marry
l'chatchila, we are not going to eat by them, etc etc.

> I'm contrasting the afilu chozer to the person who makes it clear he
> never had a QOM to return from. The whole concept of "chozer" implies a
> need for QOM. Otherwise, you could have a geir who is oveid AZ who
> never left AZ, no chazarah involved. Nor tzidqus.

Exactly.

 And the whole discussion of
> Shimshon and Shelomo's wives wouldn't work without assuming some kind
> of QOM -- with or without it being a step requiring BD.

L'ehefech. The whole point about Shimshon and Shelomo's wives is that in
fact they were rotten through and through.  There was no QOM at all.  And
yet, they went through the procedure and their marriage to Shishon and
Shlomo was chal. Shouldn't have happened, but when it did it was chal.  That
is the whole point of the Rambam bringing the discussion.  You are having to
postulate a level or righteousness on behalf of these wives that is nowhere
in the text, not of the Torah and not of the Rambam.  They really meant it
at the time and then they lapsed.  And you are having to do this because you
are determined that QOM has to be in there somewhere.  But the simple
straightforward reading is that the Rambam brought these cases to show that
even somebody as rotten through and through as these women - and just look
at all the trouble they caused, had legitimate, halachic marriages, because
they were vadai gerim.  And that is precisely where the Bach and others are
coming from in explaining the Rambam.

> Tir'u baTov!
> -Micha

Regards

Chana