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Posts Tagged ‘Chaya Sarah Elka’

Yaakov Avinu’s Delayed Marriage

Thursday, November 22nd, 2012

Note to readers: This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.

The Rambam writes in the 10th perek of Hilchos Ishus (halacha 13-14) that if a man marries a woman, he is obligated to have sheva berachos for seven days. If one marries several women at once, he must have separate sheva berachos for each one for seven days – consecutively. The reason for this is because we cannot mix one simcha with another simcha. For this reason one may not get married on Chol HaMoed, for we are obligated to have simcha on Chol HaMoed and we cannot mix that simcha with the simcha that one is obligated to have for seven days after one marries. The Rambam says that we derive this halacha from the pasuk in this week’s parshah:Ma’le shevua zos… (Fill this week…).” Lavan told Yaakov Avinu that he should wait a week after marrying Leah before marrying Rachel.

The source for this Rambam is from the Yerushalmi. The Talmud Bavli, in Moed Kattan 8b, derives this halacha from a pasuk in Nevi’im.

There is a question on the Rambam that several Acharonim discuss (see Makneh Even Ha’ezer Kuntris Acharon 62:2). Why did Yaakov wait a week before marrying Rachel? The Rambam only said that one must observe the sheva berachos one week after another, but did not say that one may not marry another woman during his sheva berachos with the first woman. This question cannot be asked on the Yerushalmi, for we could answer that the Yerushalmi indeed prohibits marrying another woman during the sheva berachos of the first woman. The reason why the Yerushalmi derived the halacha from Yaakov Avinu and not from Nevi’im, like the Bavli, was in order to rule that one may not even marry another woman during the week of his sheva berachos with the first wife. But the Rambam rules that one can marry many women at once and we require each woman to have a separate week of sheva berachos. Why then could Yaakov not have married Rachel the very next day, and simply delay her sheva berachos?

The Keren Orah (Moed Kattan 8b) answers that the Rambam only permits one to marry other women if he marries them at the same time. If one marries one woman separately and only the following day wishes to marry another woman, he is not permitted to do so since the period of sheva berachos for the first woman has already begun. The Rambam was referring to a scenario whereby a man married several women at the same time; therefore the period of sheva berachos had not yet taken affect, which would have prohibited marrying other women. In Yaakov’s case, however, he did not realize that he had married Leah until the following morning. At that time, the period of sheva berachos for Leah had already begun and he was therefore unable to marry Rachel until after the sheva berachos of Leah were complete.

Other Acharonim suggest that even though one may marry another woman during the sheva berachos period of his first wife, the second sheva berachos will have different halachos attached to it if he waits to marry the second woman until after the sheva berachos period of the first wife is over. For example, during the regular sheva berachos period celebrated after one marries a virgin, the chassan is forbidden to go to work. Even if his wife allows him to go, he may not go to work because the prohibition is on him and she has no jurisdiction over it. Some Acharonim rule that when one marries more than one woman at a time, it is only the chassan’s prohibition against going to work for the first seven days. After the first seven days the prohibition of going to work stems from the wife, and therefore she could permit him to go to work. Even though Yaakov could have married Rachel the day after he married Leah, he feared that Lavan would force Rachel to permit Yaakov to go to work during her sheva berachos. Therefore Yaakov wished to marry Rachel after Leah’s sheva berachos period was complete in order to ensure that he would be able to be together with Rachel during the sheva berachos that was being celebrated for her.

How Did Eisav Sell The Bechorah?

Wednesday, November 14th, 2012

Note to readers: This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.

We learn in this week’s parshah of Eisav’s sale of his birthright to Yaakov Avinu. There are several questions surrounding the legitimacy of this sale. The Rivash (Teshuvos 328) questions why the sale was valid, since Eisav sold something that did not exist at that time. The halacha is that one may not sell anything that is not in the world at the time of the sale. Since the bechor did not yet exist or take effect at that time, how could the sale have been valid?

The Rivash says that he heard that the Rosh and his son, the Tur, answered that although one may not sell an item that does not yet exist at that time, he may sell an item to someone in this circumstance if he swears that he will sell it. Since the pasuk says that Yaakov made Eisav swear that he would keep his word, the sale was valid. The Rivash argues vehemently with this answer, and concludes that neither the Rush nor the Tur could have said this answer. He says that the reason one cannot acquire or sell an item that does not exist is due to a problem with the actual acquisition of the item – and that swearing cannot overcome that issue.

The Rivash answers that prior to mattan Torah one could sell items that did not yet exist. Therefore the sale of the bechorah was valid.

Some Acharonim explain the opinion of the Rosh, namely that swearing helps one to sell an item that does not exist by properly defining the reason one cannot sell an item that does not exist in the world. They explain that the underlying factor that is lacking is that one needs a certain amount of intent (da’as kinyan) in order to make a sale. When the item does not exist, one cannot reach the level of intent that is required to make the sale. However, a sworn declaration to keep his word adds to his level of intent – and the sale is valid.

On the explanation of the opinion that holds that the reason why one cannot sell an item that does not exist is because one cannot reach the required level of intention, the Ohr HaChaim points out that it only says that the purchaser cannot reach that level of intent to acquire. However, the seller can reach the required level to sell. Therefore, he asks, how can the seller’s sworn declaration help? It should only help the seller’s intent and should not aid the buyer’s intent. Thus, in the sale between Yaakov and Eisav the oath that Eisav, the seller, took should not have facilitated a sale on something that did not exist.

While this may indeed be the opinion of several Rishonim, the Shita Mekubetzes (Bava Metzia 66b) quotes from Rabbeinu Tam and the Tosafos HaRosh that explicitly say that the problem with selling an item that does not exist rests on the level of intent that the seller can reach. According to those Rishonim, swearing should aid in selling an item that does not exist since the oath will add to the seller’s level of intent.

I do not understand the Ohr HaChaim’s question. I believe that when the seller swears that he will sell the item it should increase the level of intent – even the buyer’s intent. Thus, even if the problem with the sale of an item that does not exist is with the level of intent that the buyer can reach, an oath should resolve that issue.

Reb Moshe Shmuel Shapiro, zt”l, suggests an alternate explanation of the Rosh and the Tur’s opinion. He says that we must first understand how a regular acquisition works. In every sale the buyer and the seller reach an agreement, with the buyer then required to perform a ma’aseh kinyan (action of acquisition) on the item. For example, if one is buying a small movable item he will perform hagbah (lifting it up). However, the ma’aseh kinyan is not what actually transfers ownership of the item to the buyer; rather it is the agreement that actually transfers the item to the buyer. A ma’aseh kinyan solidifies one’s words into a binding agreement, and that binding agreement is what actually transfers property ownership. That is the reason why whenever the Gemara is discussing whether a kinyan has occurred, the Gemara uses the words “eino yachol lachzor” (he cannot retract). Why? Because his kinyan produces an agreement from which he may not retract. And that is what transfers ownership.

Printed from: http://www.jewishpress.com/judaism/parsha/how-did-eisav-sell-the-bechorah/2012/11/14/

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