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September 15, 2014 / 20 Elul, 5774
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Posts Tagged ‘Hilchos Ishus’

The Berachah On Kiddushin

Thursday, November 8th, 2012

In this week’s parshah we learn of the episode whereby Avraham sent his servant Eliezer to find a wife for his son Yitzchak. Eliezer met Rivka and decided that she was right for Yitzchak. After discussing matters with her parents and her brother, Lavan, Eliezer was ready to return with Rivka to Avraham and Yitzchak. Prior to their departure Rivka’s family blessed her, saying that she should become “thousands of myriad…” and may her offspring inherit the gate of its foes.

Tosafos, in Kesubos 7b, quotes Maseches Kallah that derives from this pasuk that says the following: they blessed her and recited the berachah on kiddushin. Tosafos concludes that this is not a complete drasha since the actual wording of the pasuk is that their blessing was that she should have a lot of offspring. The Gemara in Kesubos 7b says that the berachah that we recite on kiddushin is “…asher kiddeshanu b’mitzvosav v’tzivanu al ha’arayos v’asar lanu es ha’arusos v’hitir lanu es hanesuos al yedei chuppah v’kiddushin – who commanded us regarding the forbidden relationships, and forbade us the betrothed, and permitted us to be with women who have had kiddushin and chuppah.”

There is a machlokes Rishonim as to whether the berachah that we recite on kiddushin is a birchas hamitzvos or a birchas hashevach. The Rambam, in Hilchos Ishus 3:23, says that one must recite a berachah on kiddushin just as one recites a berachah on all other mitzvos. It is implicit that the Rambam is of the opinion that the berachah is in fact a birchas hamitzvos.

The Rush, in Kesubos 1:12, asks several questions on those who opine that it is a birchas hamitzvos. One point that is perplexing to him is that the wording of the berachah of a birchas hamitzvos is generally short and to the point, i.e. “…asher kiddeshanu b’mitzvosav v’tzivanu al mitzvas…” However, the wording of the berachah that we recite on kiddushin is much lengthier, implying that it is not a birchas hamitzvos but rather a birchas hashevach. Additionally, he asks why we mention in the berachah what has become forbidden to us. After all, we do not mention the fact that we may not eat from an animal before it is shechted in the berachah that we recite on the mitzvah of shechitah. So why do we mention it by the mitzvah of kiddushin?

Note: As mentioned earlier, these questions must be addressed in accordance with the Rambam’s view that it is indeed a birchas hamitzvos.

Another question that one can ask on the Rambam is based on what the Rambam writes at the conclusion of that halacha. The Rambam writes that one must recite the berachah prior to performing the kiddushin. If one does the kiddushin without reciting a berachah, he may not recite the berachah thereafter. The Rambam wrote all of the halachos of berachos in Hilchos Berachos. There, he wrote the halachos as to when one performs a mitzvah without reciting a berachah. Generally the Rambam does not repeat halachos regarding the halachos of berachos, as they relate to each mitzvah. Why then does the Rambam repeat here the halachos of when one does not recite a berachah on the mitzvah of kiddushin?

I think that the answer to both of these questions lies in the Rambam’s wording of the mitzvah of kiddushin in his Sefer Hamitzvos. The Rambam writes in mitzvah 213 that we are commanded to “livol b’kiddushin – to only have relations after kiddushin,” and give the woman either an item of monetary value or shtar. It is evident from the Rambam that the mitzvah is not simply to perform kiddushin; rather the mitzvah is to live with a level of kedushah and to only have marital relations after performing kiddushin. Perhaps we can even say that if one dies immediately after giving a woman kiddushin and did not yet live with her, he has not fulfilled the mitzvah.

The Rambam, at the beginning of Hilchos Ishus, writes that prior to mattan Torah a person would meet a woman and if they both agreed to marry, they were married. After the Torah was given we were commanded not to act in that manner, but rather to first give the woman kiddushin. Hence this mitzvah is different in that its essence is not to conduct oneself without kedushah. Therefore it is not at all superfluous to mention the fact that we are forbidden to arayos, and that we are only permitted to have marital relations with a woman that has had kiddushin – for that is the mitzvah.

Pru U’revu

Thursday, October 11th, 2012

In this week’s parshah the Torah commands us in the first mitzvah: pru u’revu – be fruitful and multiply. We rule in accordance with Beis Hillel that one fulfills this mitzvah when he has fathered one boy and one girl.

The Rambam (Hilchos Ishus 15:2) writes that women are exempt from this mitzvah while a man first becomes obligated in this mitzvah when he is 17 years old. Once he turns 20 and has not yet fulfilled the mitzvah, he has transgressed and is mevatel an assei. The Rambam adds, however, that if he is busy toiling in Torah and fears that if he marries the yoke of responsibilities will disturb his learning, he may prolong getting married. The reason he may prolong getting married is because the general rule is osek b’mitzvah patur min hamitzvah – when one is performing one mitzvah he is exempt from performing another. The Rambam concludes that we can certainly apply this rule in this case since the mitzvah that we are discussing is learning Torah – the greatest mitzvah of all.

The Acharonim were bothered by the Rambam’s explanation of this halacha. The Gemara in Moed Kattan 9a says that for a mitzvah that cannot be performed by anyone else, one must stop learning and we may not apply the concept of osek b’mitzvah patur min hamitzvah to the mitzvah of learning Torah. How then can the Rambam say that one may prolong getting married and be mevatel the mitzvah of pru u’revu because of osek b’mitzvah patur min hamitzvah, when that does not apply to the mitzvah of learning Torah? To make the question even stronger the Rambam added that we could certainly apply this concept here since we are dealing with the greatest mitzvah, learning Torah. And yet the exact opposite is true: specifically by the mitzvah of learning Torah we cannot apply this concept.

The sefer, Ma’aseh Rokeach, says that when the Rambam said that one could prolong getting married, he meant that this is so until he is 20 years old. That way one is not mevatel the mitzvah. So in essence there is no bitul mitzvah occurring, and therefore one may apply osek b’mitzvah patur min hamitzvah since one will not be mevatel the mitzvah in this case.

Rabbi Elchanan Wasserman, Hy”d, in Kovetz Ha’arus Hosafos 1, suggests that since the Rambam is referring to delaying the time until one gets married and not that one will never marry, we may liken this to a scenario whereby there is a mitzvah that can be done by others (since he can perform the mitzvah later) and we may thus apply the rule of osek b’mitzvah patur min hamitzvah even to the mitzvah of learning Torah. Reb Elchanan continues by explaining that the Rambam said that we could certainly apply this concept here since we are dealing with the mitzvah of learning Torah.

The reason why, in this scenario, this concept is more applicable to the mitzvah of learning Torah, even though we generally do not apply it to the mitzvah of learning Torah at all, is as follows: the reason why one must stop learning in order to perform a mitzvah that cannot be performed by anyone else is not because the mitzvah of learning Torah is inferior to all the other mitzvos, for it is indeed the greatest mitzvah of all. Rather, it is because when one must take care of his necessities (e.g., work for a living) there is no mitzvah of learning Torah. One is only obligated to learn Torah when he is free of his other obligations. When one is obligated to perform a mitzvah that cannot be performed by anyone else, the situation is no different and the obligation to learn is voided. However, if it is a mitzvah that can be performed by another person, or if he can perform this mitzvah at a later time, the obligation to learn Torah remains. Since he is obligated to learn we apply the concept of osek b’mitzvah patur min hamitzvah, and since the mitzvah of learning Torah is the greatest mitzvah of all we certainly apply the concept in this scenario.

In the following halacha the Rambam writes that one who never marries due to his sole desire to learn Torah, and always toils in it (like Ben Azai), has not transgressed. Reb Elchanan explains that even though in this scenario one is entirely mevatel the mitzvah, he has not transgressed because this is considered an oneis.

Printed from: http://www.jewishpress.com/judaism/parsha/pru-urevu/2012/10/11/

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