[Avodah] The Main Idea of Judaism

[David Riceman]

RCL:
> if such an explanation was normative, then you would have expected a 
> qualification of this nature to be included in the Tur, Beis Yosef, 
> Shulchan Aruch etc, but they are not. 

Really? See BY YD 157 s.v. "Kasvu haTosafos V'haRan" (p. 346 in the Arba 
Turim HaShalem edition) and Hagahos Mayymoniyos Yesodei HaTorah 5 S.K. 2.

[Email #2. -micha]

RCL:
> <<The gemora states, point blank, that a husband is responsible for 
> physical injury to his wife during tashmish because he does the act, 
> not her. No ifs not buts, nor maybes.>>

Again, I point you to Rabbi Heller, who translates "d'ihu" as "if he alone".

> <<And that is how it is brought down in the codes>>

See the citations (fruit of about ten minutes search) in my previous 
post.  "divrei Torah aniyyim b'makom ehad v'ashirim b'makom aher"; they 
would not necessarily make the same point multiple times.

For simplicity I'll repeat myself:

See BY YD 157 s.v. "Kasvu haTosafos V'haRan" (p. 346 in the Arba Turim 
HaShalem edition) and Hagahos Mayymoniyos Yesodei HaTorah 5 S.K. 2.

> <<My understanding of what the gemora is saying is that women do not, 
> as a matter of fact, do an act in the course of tashmish, as the 
> gemora understands the term act ie ma'aseh. Ie it is *not possible* 
> for a woman to do an act in the course of tashmish.>>

And this leads you into incredible contortions.  How can a woman be 
guilty of adultery without doing a ma'aseh? You claim it depends on her 
state of mind.  Whereas if under normal circumstances she does a 
ma'aseh, it's easy to define adultery, and only the exceptional cases 
are hard.

<<no[t] the Tosphos on the page in Baba Kama (32a) d"h ihu k'avid 
ma'aseh: "v'mahu l'inyan chatas ul'inyan malkos chayaves d'rachmana 
achshive l'hana'ah ma'aseh" Not that it really is a ma'aseh, but that it 
is equated for the purpose of chatas and malkos etc>>

Well, yes; it fits perfectly well under R. Heller's translation of 
"d'ihu" as "if he alone".

<<But if there are two independent loopholes, that would seem to mean 
that not only is a woman not liable if she is coerced, she is not liable 
if she is passive (whatever that means) even if not coerced.  So if you 
take this ukimta, assuming that I have understood it correctly, and 
differentiate between a woman who decides to lie back and think of 
England, and one who takes physical pleasure from the act, you appear to 
end up with the startling proposal that a woman who is caught in the act 
of adultery, where it is agreed by all that she was not coerced, can 
exempt herself from the death penalty by demonstrating (or perhaps even 
merely asserting) that she was passive and didn't find the act 
pleasurable.>>

It's very easy to exempt oneself from the death penalty.  When the eidim 
give hasra'ah you just say: "I don't believe that this is a capital 
crime", or, alternatively, you go off and do something else so there's a 
hefsek between the hasra'ah and the ma'aseh.  It is a general feature of 
halacha that death penalties are practically impossible to implement 
except against a suicidal criminal.

<<As is mesasek - if the person never intended to do the act at all. But 
at least one understanding is that the act it still a form of averah, 
that of being mechalel shabbas, but the person is completely patur, 
because they never intended the act.>>

I'm unfamiliar with this opinion.  What's the source? How does he deal 
with "m'leches mahsheves asrah Torah"?

<<And so similarly is this in Yael's head - if she had intended to have 
pleasure/benefit from Sisera, she would have been guilty of an averah 
b'mazid. But her act was not shogeg (she did not forget that adultery 
was assur, or have it happen thinking that he was her husband when he 
wasn't), nor was it mesasek, she intended the act to occur. Thus the 
gemora characterised it as an averah, but an averah lishma.>>

I haven't said this explicitly before, but I think you are translating 
"aveirah" incorrectly.  In the context of our gemara it means, not sin, 
but sex outside of marriage.  For example, the gemara uses it for Zimri, 
and while there's an issur hasnus for the 7 nations, is there an issur 
b'ilah for a Moabite (who is not even one of the seven nations)? Unless, 
of course, you hold like the Rambam that any extramarital relation 
constitutes an issur of znus.

<<But it is all about intent, it is the intent that in circumstances 
where two halachic principles clash which makes the overriding of one 
for the sake of the other mutar.>>

I think this is the confusion you get into by denying that women 
normally do a ma'aseh during tashmish.

David Riceman