Latest update: April 25th, 2013
This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.
The Gemara in Beitzah 5a says that anything made forbidden by a beis din or group of rabbanim must have an explicit heter (permission) put forth by another beis din (court) or group of rabbanim in order for the prohibition to be removed. This applies even if the reasons for the prohibition no longer apply. The Gemara there cites as a source for this halacha (law) the fact that in parshas Yisro the Torah says that no one may ascend upon Har Sinai (Mt. Sinai). The implication was that this prohibition was only made as long as the Shechinah (emanation of God on earth) would be present on the mountain.
Yet in this week’s parshah the Torah states that after the shofar is sounded people may ascend upon the mountain. Why did the Torah need to explicitly write that we may ascend on the mountain once the Shechinah is not present; the prohibition should fall off as well. We derive from here that since a prohibition was set forth it cannot be permitted unless explicit permission was granted, even though the cause for the prohibition no longer exists. The Gemara there continues to apply this rule to rabbinic prohibitions as well.
Tosafos (Talmudic commentary), in Beitzah, discusses a machlokes (dispute) regarding whether a prohibition that was initially made for only a specific time would require an explicit heter to permit the prohibition to expire when the allotted time arrives. The dispute stems from the other source that the Gemara attempts to bring for this halacha. The Torah says that the Bnei Yisrael were to prepare themselves for three days prior to mattan Torah (giving of the Torah) and that they should not be with their wives in order to maintain purity. The assumption was that after the Bnei Yisrael accepted the Torah they would not have to maintain the high level of purity, thus permitting them to be with their wives. Nevertheless, after mattan Torah the Torah explicitly says that they were permitted to be with their wives. The Gemara attempts to derive from this that any prohibition requires a heter in order for the prohibition to be overturned, even though the reason for the prohibition no longer applies. The Gemara rejects this as a source because perhaps the pasuk (verse) that permitted them to return to their wives was not necessary for the prohibition to expire, but rather to reinforce the mitzvah of onah (having relations).
Those that opine that a heter is required to permit the expiration of a prohibition that had a specific time period drew a proof from this Gemara that applied the rule prohibiting a man to be with his wife for three days before mattan Torah. We see that even though the prohibition was only made for three days, it still required a heter.
Tosafos and the Rush disagree because they do not believe that the pasuk limiting the prohibition to be with one’s wife before mattan Torah was limited to three days. They believe instead that the Bnei Yisrael were told to prepare themselves for three days and – in a separate commandment – told not to be with their wives. Therefore Tosafos and the Rush rule in favor of the opinion that an explicit heter is unnecessary in a situation where the prohibition was initially made for only a specific time period.
The Shulchan Aruch (Even Ha’ezer 1:10) says that Rabbeinu Gershon made a cheirem for anyone who marries a woman while he is still married to his wife. The Beis Shmuel, quoting the Hagaos Mordechai, explains that the reason for this cheirem was to avoid fighting in the home – not for any halachic issues.
There is a dispute whether the cheirem forbade one to marry a second wife in a situation of yibum. The Mechaber quotes from the Rashba that this cheirem was not universally accepted. The Rama adds that unless one knows with certainty that it was not accepted in his place of residence, we assume that it was accepted there.
The Mechaber adds that the cheirem was only applicable through the end of the fifth millennia (until the Jewish year 5,000). The Rama nevertheless holds that in all of the countries, the minhag and the takanah are applicable and one may not be married to more than one woman at a time.
According to the opinion quoted by Tosafos that says that there must be an explicit heter put forth for a prohibition or cheirem – even one with a specific time period – to expire, the cheirem of Rabbeinu Gershon would still be in effect since no one explicitly permitted it. This is so even though the cheirem was initially made for a specific time period.
I found afterwards that I was mechaven to the Yam Shel Shlomo in Yevamos that says that even if the cheirem of Rabbeinu Gershon was only in effect until the end of the fifth millennia, the prohibition would still apply since no one explicitly permitted it. He cites the Gemara in Beitzah as a source that even when a prohibition was made for a specific time period, it nonetheless requires an explicit heter to remove the prohibition.Rabbi Raphael Fuchs
About the Author: For questions or comments, e-mail RabbiRFuchs@gmail.com.
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