[Avodah] Geirut for marriage

[Micha Berger]

On Thu, Mar 04, 2010 at 02:07:23PM -0000, Chana wrote:
: > 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.
...
: 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"....

I must confess I was mildly offended by this reply, as it implies an
underestimation of my exposure to the SA. (One that I would
have hoped my posting history would show I am past.)

The question isn't whether "The halakhah is A, some say B, means a
machloqes, it's whether the default when B doesn't conflict with A to
read it as:

My Take:
    The halakhah is A
    Some way we need B too. We hold only A.
2 dinim that aren't explicitly peices of a whole aren't assumed to be in
contrast. The SA would exclude the "both" possibility when such a
possibility makes sense.

Your take:
    The halakhah is A
    Some way we need B instead.

Your proofs are from cases where A and B do conflict, and so there is
no parallel. It makes it sound like you don't think I know that the
SA standardly refers to the norm without telling you to look ahead
for exceptions, rather than our having a more subtle (and informed)
distinction.

Here's the case:
: "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."

See, se'if 2's yeish omerim states that it is based on assumptions that
are not shared by the stam of se'if 1. It's not a parallel case.

Tangentially, the SA does this general and exceptional thing not just
WRT shitos and pesaqim, but also special cases in metzi'us. One se'if
will say we do X, and the next will say but in rare case A, we do Y
instead. Personally, it makes me nervous. The first line doesn't even say
"we usually do X", it's written in the same language as something without
exceptions. The possibilty of abuse by partial citation, or someone
who thinks they found the se'if but are too ADD to keep on reading,
just tenses me out.

...
: 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...

The SA cites a Rambam. YOU said that Rambam must be explicit
and in our locaiton in the Yad, and therefore the SA can't be saying what
I think he does. I'm saying that the SA may be assigning the opinion I
see his text assigning to the Rambam based on something else in the
Rambam. Not that the SA must be taken beyond his own words; rather than
his words may be based on something in the Rambam we aren't seeing.

I'm saying you must go beyond your own understanding of the Rambam
before assuming you know what the SA could have meant. Including the
possibility the SA was basing himself on a deduction from the Rambam.
Not that the SA is saying more about the Rambam than is explicit in the
SA.

...
: > 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 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."

So, according to Tosafos, it's a heqesh mishpat-mishpat, a gezeiras
hakasuv. Nothing mentioned about QOM being a shevu'ah. Or even a legal
action. But more to the point, nothing that would imply that those who
are choleqim assume that QOM is NOT a legal action just because there is
a lack of BD. (Qinyan is also a legal action, and doesn't 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.

It was only your comparison I was asking about. Yes, according to
Tosafos, geirus requires a BD because of that gezeira shava, and since
QOM is the essence of geirus, that's the one bit that needs a BD even
bedi'eved.

: Now you could quibble about what is meant by kabbalat mitzvoth...

Why? We agree on that point.

: > POD #3:
...
: > 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*...

But as I later wrote, his qiddushin is chal, so the Rambam isn't saying
that a geir without QOM is a Yisrael mumar. He is talking about someone
who is less Jewish than that.

...
:> 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...

Actually, with your read of the Bach, as discussed below. To restate
my words more properly: If the Bach said what you attribute to him,
he would have been a daas yachid.

I said it more this way in the continuation:
:> 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)....

Like I remember? How many details do you think one head can juggle from
months back? I'm not as young (or maybe as well rested) as you are; my
memory can't hack it. Sorry.

I still don't see it in the Bach, WADR to RYHH (CC-ed, so hopefully he
will clarify).

: 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. 

R' Uzziel doesn't deny QOM in that he uses the idiom. What I see
instead is that he uses it very differently. IOW, he defines it in
terms of joining the nation under the ol, rather than the mitzvos in
particular. Unless we have a new POD, how to read R' Uzziel.

Thus it would seem that R' Uzziel would say the Rambam holds that a
declaration of "ameikh ami" must be done before a BD.

...
: > 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...

But as I see it: IB 12:17 drags in marriage ("umutarim lehikaneis beqehal
Hashem miyad), which means status as a Jew, which then means the Rambam
is requiring some kind of QOM, however you take those words, to make a
real Jew in addition to requiring geirus.

And I agree that that's our original point of departure. (And basically
POD #3.) From there comes the whole difference on what chosheshin means
(POD #8), and what the SA could be taking the Rambam to mean (POD #1),
etc...

...
:> 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.

You didn't correct my reading of the Bach, you tell me I'm reading the
wrong part. If so, then what do you do with the part I did quote, in
which he mentions QOM albeit without BD? That's why I said "you *appear*
to agree" since you don't dismiss it, just pull my eyes upward on the
page.

: > 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.

It's the words of the Bach (YD 268).

1- Tevilah lesheim QOM: See d"h "UM"SH veT"Ch omedim al tevilaso".
Quoting Rashi: "... Hilkhakh beshe'as tevilah mitzvah tzarikh leqabeil
alav ol mitzvos"

So, saying that tevilah leshaim tum'as niddah is sufficient only because
taharas hamishpachah is part of that ol mitzvos isn't "suddenly magicked
up".

2- The Rambam requiring QOM, albeit not before BD, in Bach d"h "UM"SH
uleR' Elfas vechu'", starting with "Vezos his shitas haRambam", phrases
the woman who doesn't keep halakhah as ho'il vehuchzequ goyim. Not
Yisrael mumar.

...
: > 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...

What I meant:
Cheshash applies to a situation, cheshad to a noun. You are chosheid
someone, but your are chosheish for a possibility.

But this is all irrelevent, given what I said about ruling out mumar due
to what the Rambam said in the previous pereq.

: 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...

... except if the geirus was before a beis din of mumchin, which
pre-empts any doubt.

: > 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.

Exactly? So, the difference between someone who was QOM and was chozeres,
and thus their marriage to SHimshon and Shelomo was valid, and someone
who never was QOM (and therefore what about their marriage?) shows that
QOM is required for marriage -- and thus true Judaism?

Of course that's not what you mean, since you quote me and continue:
:>  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...

Where do you see there was no QOM? In 13:17, the Rambam writes about
someone who returns to AZ and adds "ULEFIKHAKH qiyyam Shimshon
uShelomo neshoseihem". Doesn't that mean he considers them an instance
someone who returned to their old ways?

I see the Rambam saying that it is only because a chozeir leAZ is a Jew
that the marriages were chal!

-Micha

-- 
Micha Berger             "'When Adar enters, we increase our joy'
micha at aishdas.org         'Joy is nothing but Torah.'
http://www.aishdas.org    'And whoever does more, he is praiseworthy.'"
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