Monthly Archives: July 2018

Must Children Presume Parental Penitence? (Week Two Summary of SBM 2018)

by Zachary Ottenstein, SBM Fellow

A beraita on Talmud Kiddushin 22b declares that if a man and woman agree to marry “on condition that he is righteous”, they are married, since he may have “thought of repentance” (שמא הרהר בתשובה).  Lechem Mishnah (Ishut 8:5) and many subsequent scholars see this text as contradicting the consensus ruling of later authorities that a marriage contracted in front of invalid-as-sinners witnesses is null and void: why don’t we presume that the witnesses repented and became valid?

SBM explored this question via a thorough examination of the first half of an extensive responsum written by Rav Ovadiah Yosef z”l in 1957 (Yabia Omer Volume III, Even Ha’ezer 8).

In Rav Ovadiah’s case, two witnesses come to a beit din and testify that a young woman had accepted a token of kiddushin from Mr. X. Both attest that they saw the kiddushin take place in a prearranged place at a prearranged time of day.  They say that the marriage was intended to help the young woman evade the match that her parents had agreed to with her cousin. The young woman admits to none of this and maintains that she never accepted kiddushin from Mr. X.

The witnesses’ recollections conflict regarding  the date and time of day of the wedding: One claims that it was the week before Pesach, while the other claims that it was a week after Pesach. In addition, the father of the woman brought witnesses  stating that the witnesses to thekiddushin were both violators of the Shabbat due to them smoking cigarettes during Shabbat. One of the witnesses admits to not being halakhically observant man and specifically to smoking on Shabbat. So it not clear whether a kiddushin transaction took place, and furthermore, if whatever took place happened in the sight of valid witnesses.

The question is whether we can be sure that kiddushin was never accepted, and/or that no valid witnesses were present if it was accepted, so that we can free the young woman to remarry. The obvious way out of this predicament is for Mr. X to give her a get, but unfortunately he has “turned his shoulder and prevented her release via a get.”   The father of the bride strongly desires a ruling that no get is necessary, but one rabbi argues for stringency, citing our opening beraita as requiring us to be concerned lest the witnesses had repented and were therefore valid. Rav Ovadiah seizes the opportunity to explore the broad issue of presumed penitence.

Rav Ovadiah begins by quoting an Amoraic dispute found on Talmud Sanhedrin 26b.   R’ Nachman states that a person suspected of sexual improprieties is still a valid witness.  R’ Sheshet counters this by asking rhetorically: “He is owed 40 lashes on his shoulders (as punishment for his improprieties), but he is still valid?!” Rava then offers a reconciliation or compromise between these two positions: “R’ Nachman in reality agrees that this person cannot testify on issues related to women, whether to “take her out” (gittin) or to “bring her in” (kiddushin).”

This passage led Rambam to conclude that a kiddushin performed in front of witnesses who are invalid per a deoraita law (for which the minimal punishment is lashes) is null and void.  But why shouldn’t we at least be concerned for the possibility that the witnesses had “thought of repentance”? Why would thinking of teshuvah be sufficient to turn the groom from an absolute rasha to a tzaddik, but leave the witnesses as disqualified reshaim?

Rav Ovadiah quotes a sound explanation from Responsa Maharam Padua 37.

טעמא רבה איכא,

שמאחר שהוא אומר כן ורוצה בקידושין –

מסתמא רוצה לקיים תנאו

There is a great reason for this

Since he states this (condition) and he wants the kiddushin –

The presumption is that he wants to fulfill the condition

Since his condition can only be fulfilled through his repentance, therefore a lot more weight can be given to the idea that maybe he has thought about doing teshuvah. However, the witnesses have no such obligation to fulfill and therefore their potential thoughts of doing teshuvah do not carry as much weight.

This answer of the Maharam Padua seems logical, but it is not based on halakhah as much as it is based on psychology.  Shu”t Radbaz 1:140 gives an entirely different reason for declaring the eidim to be invalid. He writes

דכיון דאיכא סהדי דעבר עבירה שנפסל בה לעדות –

אינו חוזר להכשרו עד שיבאו עדים ויעדו שחזר בתשובה

Since there are witnesses that he transgressed a transgression that makes him invalid to testify

He does not return to being valid until witnesses testify that he has repented

Witnesses become invalid due to their witnessed violation of a commandment, and therefore they cannot become valid again until they have witnesses who can testify that they have in fact repented.

How does all this pertain to the SBM topic of Kibbud Av va’Em?  To answer that question we turn to some primary sources that Rav Ovadiah will use in the second half of his responsum.

Rambam (Hilkhot Mamrim 6:11) states that a mamzer is obligated to honor his father, but he is not liable to punishment if he strikes or curses his father before his father repents (of the adulterous or incestuous act that led to his conception). He goes on to say that even if a parent is wicked and sins frequently, the son is still obligated to fear and honor him.

This contrasts with the opinion of the Tur (Yoreh Deah, Hilkhot Kibbud Av va’Em 240).  Tur holds that as long as the father remains sinful, there is no obligation to honor him, but if and when he does repent, the obligation is reinstated.  But – to bring us full circle – can the Tur’s position ever be relied on in practice, or must children always be concerned lest their parents have “thought of teshuvah” and therefore all obligations toward them have been reinstated?  (More radically: Is it possible that since repentance can retroactively transform the status of past deliberate transgressions into accidental transgression and even virtues, is it possible for parental sinners to retroactively become deserving of honor, and therefore for children to become retroactively guilty for having failed to act toward their previously wicked parents in accordance with the obligations of kavod or yir’ah?)

In the coming weeks, we will continue to discuss hirhurei teshuvah and how it pertains to questions of Kibbud Av va’Em. Our background in the concepts of hirhurei teshuvah and honoring wicked parents, both in the primary and secondary sources, will provide us with an excellent springboard for discussing other relevant questions such as: What makes a parent wicked enough to void the chiyuv of the child towards them? Is there ever a case in which the halakhah itself obligates or recommends that a child not honor his or her parent? Please stay tuned!

Shabbat Shalom!

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Counting and Remaining Uncounted

This week’s Dvar Torah is by Aliza Libman Baronofsky

Our sages called Sefer Bemdibar “Chumash HaP’kudim” because of the censuses that bookend the book, right at the start of Sefer Bemidbar and then again in Parshat Pinchas, after the sin at Ba’al Peor. If you’re old enough to remember real bookends, you know that if you put a whole pile of books outside the bookend – analogous to the placement of this week’s parsha outside the ‘closing bookend’ in Parshat Pinchas – your last few books will fall off the shelf.

It is not my objective to look at every section in these two parshiyot, either to attempt to artificially ‘cram’ them in or to explain why they remain out. However, thematically there is much in Matot that we can see as a natural progression from Pinchas, as well as a natural conclusion to Parshat – and indeed, Sefer – Bemidbar.

Let us begin with the well-known fact that we have a prohibition (dislike?) against counting Jews, which stems from the opening lines of Shmot 30:11-12:

וַיְדַבֵּ֥ר ה’ אֶל־מֹשֶׁ֥ה לֵּאמֹֽר׃

כִּ֣י תִשָּׂ֞א אֶת־רֹ֥אשׁ בְּנֵֽי־יִשְׂרָאֵ֘ל לִפְקֻדֵיהֶם֒ וְנָ֨תְנ֜וּ אִ֣ישׁ כֹּ֧פֶר נַפְשׁ֛וֹ לַה’ בִּפְקֹ֣ד אֹתָ֑ם וְלֹא־יִהְיֶ֥ה בָהֶ֛ם נֶ֖גֶף בִּפְקֹ֥ד אֹתָֽם׃

The LORD spoke to Moses, saying:

“When you take a census of the Israelite people according to their enrollment, each shall pay the LORD a ransom for himself on being enrolled, that no plague may come upon them through their being enrolled.” (Translations from Sefaria unless otherwise indicated.)

It is acknowledged that sometimes we need to count the people, such as when determining how many warriors we have going out to battle (in early Bemidbar) or to determine how many are left after a plague (such as in Parshat Pinchas, after the plague of Ba’al Peor.) It is also clear that last week’s parsha’s census is tied to apportioning of the land.

This week, we tie up loose ends by exacting vengeance on Midian for their role in the sin of Ba’al Pe’or, as described in Bemidbar (Numbers) 31:25-54. The Jews are told to select 1,000 soldiers from each tribe to battle Midian, a total of 12,000. After a decisive victory, we get an extensive list of the spoils and booty the Jews were allowed to keep, presuming they divided it 50-50 between the warriors and those who stayed behind.

Here, an extraordinary number of verses are devoted to enumerating:

  • how many total of each type of spoils the Jews acquired;
  • what number corresponds to the 50% of each type that went to the warriors;
    and
  • the number that was given to God via Elazar HaKohen, called “מֶּ֥כֶס” – a tax levy or duty. (Elazar is generally understood to be taking this share for the Kohanim overall as a result of their service. The overall amount was 1/500 of the warriors’ share or 0.1% of the original total.)

Finally, the exact same numbers are listed again to enumerate the 50% given to the remaining Israelites, of which 1/50 is given to the Leviim. (Interestingly, we are not given the exact numbers for the Levi’im but are told their share as a fraction.)

After the spoils are divided up, the officers of the warriors come forward and give as tribute all of the gold jewelry they had taken as their personal booty (which was apparently allowed). They state:

(מט) וַיֹּֽאמְרוּ֙ אֶל־מֹשֶׁ֔ה עֲבָדֶ֣יךָ נָֽשְׂא֗וּ אֶת־רֹ֛אשׁ אַנְשֵׁ֥י הַמִּלְחָמָ֖ה אֲשֶׁ֣ר בְּיָדֵ֑נוּ וְלֹא־נִפְקַ֥ד מִמֶּ֖נּוּ אִֽישׁ

(49) They said to Moses, “Your servants have made a check of the warriors in our charge, and not one of us is missing (נִפְקַ֥ד).

The word נִפְקַ֥ד has to be translated a little oddly here, as missing, which Rashi takes the lead on stating and virtually everyone seems to agree. The use of the root פ.ק.ד, which sometimes means ‘to count’ reminds us of the censuses. After all, they must be counted (the more common נ.ש.א. here) in order to determine if any are missing.

Of course, we must ask: Why might anyone be missing? What is the implication here?

Before we proceed with this specific question, we must first address the more obvious omnisignificance in the room: Why do we need all these verses at all? At least in the eyes of the more traditional, midrashic commentaries, every verse needs to be justified. This text section gets 20+ psukim with numbers of sheep and types of gold jewelry.

In a traditional take on the Gemara in Shabbat 64, Chizkuni writes that the warrior officers were concerned about having been counted: They therefore stated:

(א) ונקרב את קרבן ה’, לכפר על נפשתינו שנדרנו מלפני החשבון שנמנינו כדי שלא ישלוט בנו נגף ולכך הביאונוהו אל אהל מועד. וכן מצינו ולקחת את כסף הכפורים ונתת אותו על עבודת אהל מועד.  

“We had made this commitment already before having been counted in order to protect us against the potential harm that might befall us on account of the count.  This is why we have now brought it to the Tabernacle.”

To forestall a potential epidemic, they vowed before they left to give from the spoils to Hashem. Chizkuni continues by citing the source for this as Shmot 30:16, our original source about not counting Jews, where “כסף הכפורים” or atonement money is given as a result of the census.

According to tradition, the count is not apparently sinful in and of itself; instead, counting the Jews exposes their sins.

Chizkuni writes regarding v. 49:

ורבותינו אמרו לא נפקד ממנו לדבר עבירה.

Our sages therefore do not understand the word נפקד here in the conventional sense, but they translate it to mean that none of the 12000 soldiers in this campaign had become guilty of a personal sin, which might have resulted in Satan having an excuse to kill him.”

Chizkuni says that being counted could have lead to a plague, but the phrase “ולא נפקד ממנו איש” means that no individual of the 12,000 men (or perhaps their officers) had a personal sin that would increase the likelihood he would die in battle.

Chizkuni here refers back to Rashi and the same Gemara in Shabbat when he says that these officers, who did not sin, are nonetheless atoning from having been tempted to sin. The classical interpretation of these verses, then, is that the donation of these officers is a rare example of leadership gone right in Sefer Bemidbar – leaders confronted with a bad choice who made a good one, which becomes a significant positive part of a story (Ba’al Pe’or) whose ending could have been much worse.

Rashi does something very characteristic on these verses: he lists the words that describe the gold items donated and explains which types of jewelry were included in the list. He notes that the final one is an item in the shape of a uterus to atone for the same sin – the unfulfilled desire the warriors felt for the women of Midian.

אצעדה. אֵלּוּ צְמִידִים שֶׁל רֶגֶל: (ב) וצמיד. שֶׁל יָד: (ג) עגיל. נִזְמֵי אֹזֶן: (ד) וכומז. דְּפוּס שֶׁל בֵּית הָרֶחֶם, לְכַפֵּר הִרְהוּר הַלֵּב שֶׁל בְּנוֹת מִדְיָן (שבת ס”ד):

We expect something like this from Rashi because he likes to take apart lists and give every item on the list additional meaning or detail (see, for example, his commentary on the first few verses of Sefer Devarim.). However, though this type of commentary is characteristic of Rashi, it does make a careful reader aware that he is focusing on the detail in these few verses without saying much about the detail in the lists of spoils.

A more ‘plain text’ approach to the phrase “וְלֹא־נִפְקַ֥ד מִמֶּ֖נּוּ אִֽישׁ” is given by Nachmanides, who writes

הנה השם עשה תשועה גדולה על ידינו שלא מת במלחמה אחד מכל אנשי הצבא אשר בידינו

Behold, Hashem made through us a great salvation that no one from all of our army died in the war. (Translation mine)

When Nachmanides says no one died, he’s continuing a theme he has built in many places. What do we think about the possibility that there were no casualties? While this seems unlikely, it is nonetheless a possible outcome if the Midianites were truly outmatched, says Rabbi Michael Hattin. (See Part 2 of this shiur from TanachStudy.com.) Similarly, Rashbam writes that the real miracle was that no one died of a plague (presumably of the type that were common among encamped soldiers lacking a modern understanding of germ theory.)

Nachmanides’ take on the ‘too much detail question’ is along the same lines as his later commentary (on 31:49):

הוצרך הכתוב לפרט הזה להזכיר כמה המחצה וכמה המכס להודיע כי מיום שלקחו המלקוח עד שמנו אותו וחצו אותו והפרישו ממנו המכס ונתנו לאלעזר הכהן לא מת מכל המקנה הגדול הזה אחד וכן במחצת העדה ללויים וזה נס:  

The Torah needed to include this much detail, noting how much was each half, to let us know that from the day they took the spoils, through the time they counted it and divided it in half, separated the ‘duty’ share and gave it to Elazar the Cohen, not one animal of this great amount died. Also, when the nation divided it up and gave their share to the Leviim [none died either] – which was a miracle. (31:36, translation mine)

This position of Nachmanides here in 31:36 foreshadows the officers later: just as not one of the officers died, so too, none of the animals died. This commentary is similar to Nachmanides’ commentary in 2:4, where he says that the two censuses (In Shmot 30 and Bemidbar 2) have the same count because no one died. We can tell he’s reading ahead to our text at that time because he uses the phrase “לא נפקד מהם איש”, reminiscent of verse 49’s “וְלֹא־נִפְקַ֥ד מִמֶּ֖נּוּ אִֽישׁ׃”. (Indeed, our text is the only place in Tanach where the phrase “וְלֹא־נִפְקַ֥ד … אִֽישׁ׃” is used, but all kinds of commentaries pick it up later (Rashi, Radak, Metzudat David and others) and use it to mean ‘not one is missing.’)

So now we have a war where no soldier sinned and an aftermath where no sheep died. These might be pretty extraordinary miracles. I said earlier that we are perhaps commending the leaders for finishing the terrible story of Ba’al Pe’or off well, with retribution to those who scorned the will of God and a taking of responsibility by the new tribal leaders. The idea that not one died – neither soldier nor animal – can also be showing God’s total forgiveness – no remnant of the sin remains.

However, we might also be hesitant to see these as out-of-the-ordinary miracles (after all, Sihon and Og were more mighty and we defeated them, too.) Other commentaries explore alternate avenues.

The Ohr Hachaim accepts Ramban’s question, writing, “למה האריך כל כך בפרטי החשבון בדבר שיכול כל הבא למנות לידע ”, hilariously translated by Rav Eliyahu Munk as “Who amongst us cannot figure out what half of a total of 675,000 sheep amounts to?” Ohr Hachaim does not consider it to be miraculous that no animal died, in a time span he calls “מועט” – brief – but when he says “ומה גם שיצטרך הכתוב לכתוב כל הדברים בשבילו” – that this so-called ‘miracle’ would not be significant enough to make it worth recording in great detail in the Torah, he sets a high bar for his own answer!

Instead, he says

לא שהיה מונה חמש מאות ונותן אחד לה’ מפאת המכס אלא מונה תצ”ט ונותן אחד

(2) I believe that the reason that the Torah tells us what half the total of these flocks amounted to was to teach us that the calculation of the tax was based on the 500th animal being the tax rather than the 501st. This is the reason the Torah had to repeat this calculation in each instance. In other words, the tax amounted to one in 499 and not as we might have thought one in 500.

Ohr Hachaim says the Torah wants to make sure we don’t think it is a ratio of 1:500, where the 1 given to the duty is not from among the 500. By listing that 675 sheep went to Elazar for the duty, etc., we see that it is the fraction 1/500 (or 1:499). We math types would call this part-to-part as opposed to part-to-whole.

However, Ohr HaChaim’s comment might not even pass his own significance test – this is not a frequently repeated case or one with any practical ramification. 1/501 calculated as a decimal, 0.00199600798403 (repeating), can hardly be said to be much different than 0.002 as to make it worth so many extra verses from the vantage point of someone who, like Ohr Hachaim, does not like extra verses.

Ohr Hachaim, of course, has not resolved all of his problems yet. He still needs to account for the first, very long list. His second point, more meaningfully, is that the Torah’s way of writing makes it clear that the מכס – duty – was taken only out of the warriors’ share, after it was divided in half (where you might have thought it was taken off the top) and the Levites were given their share out of the half that the nation was awarded. This answer accounts for the listing of all the halves twice, to show that both sides started out with half of the original amount of spoils. It can even be argued that after the other sets of numbers are listed, we don’t need to know the exact numbers for the Levites, since we know what fraction of what whole we are calculating. Whatever we think of this answer, we can’t argue that the numbers are not significant enough to matter. This answer deals with much larger numbers. 1/500 off the top of 675,000 versus 1/500 out of 337,500 is 1350 sheep for God versus 675.

(For what it’s worth, Ohr Hachaim is completely on board with the ideas from Shabbat 64a that the soldiers donated the gold to atone for fantasizing about sin, even though none of them sinned and all came back alive.)

Our other reliable omnisignificance booster is the Malbim, who is less explicit but nonetheless does not disappoint. He connects the two sets of numbers, noting that the number of soldiers as a fraction of the nation as a whole corresponds to the fraction of the spoils given to the Levites, who are described in 31:47 as “שומרי משמרת משכן ה’”. Malbim attributes the nation’s success to the prayers of the Levites on behalf of the soldiers.

12,000/600,000=1/50

Since the Levites had an instrumental role through prayer, they are entitled to 1/50 of the spoils for protecting the 1/50 of the nation who went to fight in the war. While Malbim does not explicitly address the omnisignificance question, he clearly believes the specific numbers are significant.

As a longtime ‘math person’, I’ve always resisted any anti-counting bias I felt from the Torah’s census squeamishness. The idea that by counting you risk loss, and superstition in general, is a bit much for my Litvish way of being. Details matter!

Fortunately, I am not the first, or only, one to ever notice that counting can be an expression of love. In his first comment on the book of Bemidbar, Rashi writes, “מִתּוֹךְ חִבָּתָן לְפָנָיו מוֹנֶה אוֹתָם כָּל שָׁעָה” – “Because they were dear to him, He counts them every now and then.” This is indeed a beautiful bookend to our Sefer. For a God committed to His people’s welfare, no detail is too small to escape His care and notice – not even the number of sheep. Especially in the aftermath of Ba’al Pe’or, Hashem takes time and care to show that the relationship is mended. He enables the people to act themselves to accomplish something significant. He then lists the exact number who did so, and the exact numbers of items they earned. In this coda to the Pinchas census, we can imagine that the relationship that’s been on the rocks since Parshat BeHa’alotcha is finally on its way to being mended.

Aliza Libman Baronofsky (SBM ‘06) teaches at the Charles E. Smith Jewish Day School in Rockville, MD.

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Conditional Kiddushin and the Presumption of Parental Penitence

by Rabbi Aryeh Klapper

SBM 2018 is off to a terrific start.  I’m sitting in the beit midrash several hours after maariv listening to a group of fellows study a responsum of Rav Moshe Feinstein about what to do when a universal minhag plainly contradicts an authoritative halakhic text, while several other engage in private bekiut or Torah writing projects.  Here I’ll try to share with you some of the learning from the daily shiur.

Our theme is “Honoring Parents: The Hard Cases”, but we started from a seemingly unrelated passage on Kiddushin 49b.  We’ll explain its relevance at the very end of this essay.

{האומר לאשה: התקדשי לי}

על מנת שאני צדיק –

אפילו רשע גמור – מקודשת,

שמא הרהר תשובה בדעתו.

על מנת שאני רשע –

אפילו צדיק גמור – מקודשת,

שמא הרהר דבר עבודת כוכבים בדעתו.

{If a man says to a woman: “Marry me}

On condition that I am a tzaddik” –

even if he is an absolute rasha – she is married,

{because} perhaps he cogitated repentance in his mind.

“On condition that I am a rasha” –

even if he is an absolute tzaddik – she is married,

{perhaps} he cogitated a matter of idolatry in his mind.

Now kiddushin is a form of halakhic contract, and therefore we can always ask whether a rule about marriage applies equally well in commercial contexts.  So in this case:  If A sells B a horse on condition that he is a tzaddik, when in fact he is a complete rasha, would the sale go through because of the possibility that the seller had repented?

ROSH comments that the woman in our case is only doubtfully married, not certainly married, even thought the language of the passage is simply “married”.  Rabbeinu Yerucham comments that this is obvious.  Why is it obvious?  The simplest explanation is that it is utterly implausible to claim that the man in our case certainly did teshuvah.

Beit Yosef, however, explains that Rabbeinu Yerucham was making a literary rather than a substantive claim.  It’s obvious that she is only “doubtfully married” because the text saysperhaps”.  Seemingly, Beit Yosef thinks that it would not be unreasonable to claim that she is certainly married, although it is obvious that the Talmud does not take that position.

But is it reasonable to claim that she is even doubtfully married?  The legal category “doubtful”, or safek, generally reflects something with a 50% chance of occurring.  Do we really think that 50% of absolutely wicked men can be presumed to have repented?  Lechem Mishnah among others points out that such a claim would have absurd consequences.  We rule that a marriage that takes place before witnesses who are invalid-as-reshaim- as-the result-of-their-sins is a nullity, not a “doubtful marriage”.  How can this be?  Shouldn’t there be a 50% chance that the witnesses repented?

Responsa Doveiv Meisharim 1:22 notes that one can concretize this problem by framing it as a single case.  Three men each commit a sin which invalidates them as witnesses because it makes them into “reshaim”.  One of them then marries a woman “on condition that I am a tzadik” in the presence of the other two.  Would we say that his condition is fulfilled because he presumably repented, but that the marriage is nonetheless a nullity because there is no chance that the witnesses repented?!

The simplest approach to resolving this paradox is to claim that by “doubtful” Rosh did not mean that there was a genuine likelihood of repentance.  Rather, he meant that the Rabbis chose to consider her as doubtfully married when the groom made this condition even though they knew that the chances of his actually having repented were infinitesimal.   Therefore, with regard to all other laws, such as the validity of witnesses, the possibility of repentance can safely be ignored.

Doveiv Meisharim himself offers a much fancier resolution.  To cease being a rasha and become a tzaddik, he contends, one must both have repented and atoned.  Repentance by itself is therefore insufficient to fulfill a condition “that I am a tzaddik” – except for a groom, because marriage by itself, like Yom Kippur, is a comprehensive atonement for all prior sins.  This explanation allows him to maintain that repentance is 50% likely in all cases.

Rabbeinu Yerucham had also cited a dispute as to whether the Talmud’s law is true no matter what sins the groom had committed.  One position held that it is not true for interpersonal mitzvot, which require appeasing the friend as well as repentance in order for G-d to forgive them.  This is especially true of theft, where there is a formal obligation to return the object.  In all such cases, one cannot become a tzaddik through repentance alone.  But a second position believes that one become a tzaddik if one has repented and resolved to return the object (even if that resolve turns out to be fleeting.)

This second position generates another apparent conflict between our passage and the laws of witnesses.  No one contends that the mere resolution to return a stolen object revalidates a thief as a witness, especially if the resolution is not carried through.  Such a thief remains a rasha and therefore an invalid witness.  So how can he be considered not merely an ex-rasha, but even a tzaddik, for the purpose of marriage?

The simplest solution is that our passage is not using the terms “rasha” and “tzaddik” in their formal legal sense.  For that matter, it may not be using them in the sense they have in ordinary conversation.  Our passage is interested exclusively in what the terms mean when they are used by a man in the context of a conditional offer of marriage, and how they are understood by a woman who accepts that offer.

This raises the question: Why would a man make an offer on such a condition?  If he knows himself to be wicked, why make a condition of righteousness?  If he knows himself to be righteous, why make a condition of wickedness?  I suggested that he might do so precisely because his interest is not in being married to the woman, but rather in convincing the woman that she is married to him.  His motives might range from avarice – her rich father might be more likely to do business with him – to the hope of convincing his “fiancée” to permit him physical liberties.  On this theory, there might be no actual possibility of repentance.  Rather, Chazal reacted to his chicanery by decreeing that he is in fact matrimonially entangled with this woman, to the point that he needs to give her a get.

But, I contend, on this theory we would likely waive the marriage and get requirement if it victimized the woman rather than the man. Just such a case is discussed by Responsa Radbaz 4:91. He points out that some Geonim ruled that an apostate is simply not Jewish for the purpose of levirate marriage, so that a woman whose husband died childless can remarry freely even if her late husband has living apostate brothers who refuse to do chalitzah.  These geonim also ruled that if the same apostate brother married a different woman, the marriage would be valid – meaning that he is Jewish!  Radbaz suggests that the marriage would only be valid “doubtfully”, and that this “doubt” is a “mere stringency”, not a genuine likelihood.  Therefore, it can be ignored when the consequence would be trapping a woman as an agunah.

However, Responsa Shaagat Aryeh 1 (the “other” Shaagat Aryeh, a grandson of the Bach) discusses a case in which it is to the woman’s advantage for us to consider the possibility of repentance a genuine likelihood.  A man swore not to give a get, and then used judges-invalid-as-sinners to undo his oath so as to give the get; is the oath undone?  Shaagat Aryeh contend that it is, because we do not allow the possibility that the judges did not repent to prevent the get.  His argument assumes that there is in fact a 50% chance of repentance.

How does all this relate to our SBM theme?  We will learn next week that parents forfeit some or all rights to being honored when they behave badly.  Is a mere resolution of repentance enough to restore those rights, and obligate their children to honor them as if nothing has happened?  Does it matter which sins they have committed?  Must children consider that their parents have or might have repented, even if there is no evidence for that possibility, and the last horrific sin was only minutes ago?  Probably not, if our passage discussed “a mere stringency”.  On the other hand, perhaps we follow Shaagat Aryeh in regarding this as a genuine 50% chance.  Moreover, there may be excellent policy reasons for preventing children from writing their parents off the first time they sin and until they conclusively demonstrate that they have repented.

Stay tuned!  Recordings and sourcesheets will be posted soon, and questions are welcome.

Shabbat shalom!

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Pinchas: Fundamentalist Zealot or Centrist Yeshiva Bochur?

This week’s alumni Dvar Torah is by Rabbi Elliot Kaplowitz

Pinchas is such a fascinating character for the observant Jew. There is something seductively appealing about a zealot’s ability to do the right thing in reaction to shocking acts that paralyze the ordinary arbiters of halakhah.  Even though we are never halachically allowed to instruct anyone in a specific situation that the halacha is “zealots strike him”, still this is the halacha and Pinchas got it right. 

We usually imagine Pinchas rising to action in the moment. But the Gemara on Sanhedrin 82a offers a very different description of the episode.  In the Gemara’s telling of the story, Zimri grabs Cozbi by the hair, drags her in front of Moshe, and asks:

בן עמרם, זו אסורה או מותרת?

ואם תאמר: אסורה, בת יתרו מי התירה לך?

“Son of Amram, is this woman forbidden or permitted?

And if you say that she is forbidden, as for the daughter of Yitro, who permitted her to you?”

Moshe is literally at a loss for words, as the Gemara tells us:

נתעלמה ממנו הלכה –

געו כולם בבכיה

the Halacha eluded him,

 causing the entire nation to cry

It is at this point that Pinchas acts.  But before striking Zimri and Cozbi, the Torah records (Bamidbar 25:7):

וירא פינחס בן־אלעזר בן־אהרן הכהן

ויקם מתוך העדה ויקח רמח בידו

When Pinchas, son of Eleazar son of Aaron the priest, saw this,

he left the assembly and, taking a spear in his hand…

On a peshat level, it is clear that Pinchas saw Zimri and Cozbi coupling. But the Gemara’s retelling adds a step in the sequence of Pinchas’ actions:

מה ראה?

אמר רב: ראה מעשה ונזכר הלכה.

אמר לו: אחי אבי אבא, לא כך לימדתני ברדתך מהר סיני: הבועל את כותית קנאין פוגעין בו?

אמר לו: קריינא דאיגרתא איהו ליהוי פרוונקא

What did Pinchas see (that led him to act)?

Rav says: He saw the incident and he remembered the halakha.

He said [to Moses]: “Did you not teach me when you descended from Mt. Sinai that “One who has intercourse with a Gentile – zealots strike him”?

[Moses] said to him: “Let the one who reads the letter be the agent [to fulfill its contents].”

In this version, Pinchas no longer rises to action following his gut instinct. He acts only after receiving confirmation from Moshe that the Halacha does indeed condone killing the perpetrators of such an act.  It is the modern-day equivalent of consulting with a Rabbi or checking in the Shulchan Arukh before acting.  The irony is that this version directly contradicts Rav Chisda’s ruling of הבא לימלך אין מורין לו – if [the zealot] takes counsel, we do not instruct him so. 

Rav’s retelling of the Pinchas story highlights one of the major questions posed by a commitment to Halacha:  To what extent, if any, can we trust our instincts when facing ethical dilemmas, or must we always consult with Halakhic sources and/or authorities?

In this regard, Rav Aharon Lichtenstein z”l relates a powerful story from his early years living in Israel.  While walking with his family in a charedi neighborhood, they came across a presumably non-observant merchant whose car had broken down and was in need of assistance.  A number of the neighborhood kids got into an argument whether they should help him, based on the Gemara Pesachim 113b’s discussion of the status of wanton sinners as relates to the mitzvah of perika u-te’inah (helping one load or unload a burden).  Rav Lichtenstein recalls that he wrote his father-in-law, Rabbi Soloveitchik, a letter in which he concluded: “Children of that age from our camp would not have known the gemara, but they would have helped him.” Rav Lichtenstein continues: “My feeling then was: ‘Why, Ribbono shel Olam, must this be our choice? Can’t we find children who would have helped him and still know the gemara? Do we have to choose? I hope not; I believe not. If forced to choose, however, I would have no doubts where my loyalties lie: I prefer that they know less gemara, but help him.’” (Rabbi Aharon Lichtenstein z”l. “Developing a Torah Personality—Centrist Orthodoxy: A Spiritual Accounting”) 

The dilemma outlined by Rav Lichtenstein has always defined our community, and will continue to do so.  To trust our instincts and internal morality – which HAS been shaped by our Torah education – or  to consult our sefarim and posekim before doing anything.  This dilemma is seen in the two versions of Pinchas presented above.  The question and challenge for us is which model of Pinchas do we choose to follow.

 

Rabbi Elliot Kaplowitz (SBM 2001) is rabbi of Congregation Netivot Shalom in Baltimore, MD.

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