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April 20, 2014 / 20 Nisan, 5774
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Posts Tagged ‘Hilchos Ishus’

How Did Yaakov Marry Sisters?

Thursday, November 29th, 2012

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

At the beginning of this week’s parshah Yaakov sent a message to Eisav. In the message were the words, “im Lavan garti – I lived with Lavan.” Rashi explains that Yaakov was informing Eisav that he had kept the entire Torah, as the word “garti” is the same numerical value as the amount of mitzvos in the Torah: 613. The following strong question concerning this statement has been discussed by the Rishonim and Acharonim: How could Yaakov say that he kept the entire Torah when he married two sisters, Rachel and Leah, which is biblically prohibited? Additionally, the Gemara in Yuma 28 says that Avraham Avinu kept the Torah; presumably the other avos did as well. How then did Yaakov marry two sisters?

The Ramban, in parshas Toldos (26:5), says that the avos only kept the Torah in Eretz Yisrael. He explains that it was for this reason that Rachel died before Yaakov entered Eretz Yisrael, so that when he entered Eretz Yisrael he was only married to one sister.

Although this answers the second question of how Yaakov married two sisters, it does not answer the first question. For how then could Yaakov say that he kept the entire Torah when in fact he did not keep any of it, as he was not obligated in it while he was chutz la’aretz?

Similarly, the Rama (Teshuvos 10) and the Maharal (Tiferes Yisrael 20) say that only Avraham kept the Torah. Yitzchak and Yaakov did not. This too does not explain the statement made by Yaakov informing Eisav that he kept the Torah in its entirety.

The Radvaz (Teshuvos 696), the Marshah (Yuma 28) and the Perashas Derachim write that Rachel and Leah had to undergo conversion before Yaakov married them. The halacha is that a convert is not considered related to their biological family members. Therefore, a convert may marry a biological relative. Two biological sisters who converted can marry the same man, since they are not considered sisters.

The Nefesh Hachaim suggests that the avos kept the Torah based on what they perceived as necessary for making tikkunim in the world. Once the Torah was given, one is not allowed to make such calculations. However, prior to mattan Torah the avos would violate certain commandments if they believed it was necessary for their avodah. Yaakov married two sisters because he felt that it was necessary in order for him to accomplish his spiritual goals.

The Brisker Rav and Reb Moshe Feinstein (Even Haezer 4:9) offer a different approach in answering both questions. They say that although the avos kept the entire Torah there were several discrepancies. Certain concepts did not yet exist prior to mattan Torah, and regarding those things the avos did not keep the Torah. The Torah only prohibited marrying two sisters via kiddushin. Before mattan Torah the concept of kiddushin did not exist. The Rambam writes in the beginning of Hilchos Ishus that when one wished to marry a woman before the Torah was given, they simply lived together without having any kiddushin. Under those circumstances, one may “marry” two sisters.

The Gemara, in Pesachim 119b, says that Hashem will make a meal for all the tzaddikim. They will ask Avraham Avinu to bentch and he will refuse, saying that since Yishmael came from him he should not bentch. Yitzchak Avinu will refuse because Eisav came from him. Yaakov Avinu will refuse to bentch, for he will say that he married two sisters that the Torah would eventually prohibit. But according to the previous two answers (of the Brisker Rav, Reb Moshe, the Radvaz, the Marshah, and the Perashas Derachim) the Gemara is not understandable. Based on their answers Yaakov had done nothing wrong. Why would he feel that he should not bentch based on his marriage to two sisters who converted, or for simply living together with them without kiddushin? What he had done would have been permitted – even after the Torah was given.

According to the Ramban, that the avos did not keep the Torah outside Eretz Yisrael, and according to the opinions that hold that Yaakov did not keep the Torah at all, we can understand why Yaakov said that he was unfit to lead in bentching, since what he did would become forbidden after the Torah would be given. Similarly, the answer of the Nefesh Hachaim fits well with the Gemara since what Yaakov did would not have been permitted after the Torah was given.

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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