כללי הוראה ח. חומרות תנאים ולא תתגודדו

The Gemara poses a question: But do we adopt the respective stringencies of two authorities who disagree on a series of issues? Wasn’t it taught in a baraita: The halakha is always in accordance with the opinion of Beit Hillel, but one who wishes to act in accordance with the opinion of Beit Shammai may do so, and one who wishes to act in accordance with the opinion of Beit Hillel may do so. If he wishes to adopt both the leniencies of Beit Shammai and also the leniencies of Beit Hillel, he is a wicked person. And if he wishes to adopt both the stringencies of Beit Shammai and also the stringencies of Beit Hillel, with regard to him the verse states: “The fool walks in darkness” (Ecclesiastes 2:14). Rather, he should act either in accordance with Beit Shammai, following both their leniencies and their stringencies, or in accordance with Beit Hillel, following both their leniencies and their stringencies.

Rav Sheizvi said: The principle of dictating when we do not act in accordance with the stringencies of two authorities applies only in a case where the two stringencies contradict one another. In these types of cases, following both stringencies would result in an internal contradiction.

Rav Sheizvi continues: However, in a case where the two stringencies do not contradict one another, we may indeed act in accordance with the stringencies of two authorities. Therefore, the stringencies adopted in the case of the alleyway in Neharde’a were legitimate, for the two stringencies related to two separate issues: Rav’s stringency was that an L-shaped alleyway is regarded like an open alleyway, and Shmuel’s stringency was that an open alleyway requires a door. The Gemara challenges Rav Sheizvi’s assertion: Is it true that we do not act in accordance with the stringencies of two authorities in a case where the two stringencies contradict one another? Rav Mesharshiya raised an objection from a baraita: There was an incident involving Rabbi Akiva, who gathered the fruit of a citron tree on the first of the month of Shevat and applied the laws of two tithes to it. After teruma and the first tithe have been separated, an additional tithe is separated from what is left. During the first, second, fourth, and fifth years of the Sabbatical cycle, second tithe is set aside to be taken to Jerusalem and eaten there by its owner, while during the third and sixth years, poor man’s tithe is set aside to be distributed to the needy. When tithing the fruit picked on the first of Shevat, Rabbi Akiva set aside both additional tithes, second tithe and poor man’s tithe: He set aside one in accordance with the statement of Beit Shammai, who say that the new year for trees begins on the first of Shevat, and as that day belongs to the new year, a tithe must be set aside in accordance with the law of that year; and he set aside one in accordance with the statement of Beit Hillel, that the new year for trees is the fifteenth of Shevat, and any fruit picked prior to that date must be tithed in accordance with the law of the previous year. Apparently, Rabbi Akiva adopted for himself two contradictory stringencies.

§ And Rav Zevid said: There are no children without signs of puberty. In other words, if a girl gives birth, she definitely possesses the signs of puberty. The Gemara asks: But if so, let us examine to see whether these physical signs are present, so that there is no need to depend on a presumption. The Gemara answers: We are concerned lest the hairs that constitute the sign have fallen off. The Gemara comments: This works out well according to the one who said that in general we are concerned lest signs fall off, i.e., that there are cases in which she is in fact mature but the hairs have come off. However, according to the one who said that if there are in fact hairs they will certainly be found, and we are not concerned that they may have fallen out, what is there to say? The Gemara answers: Even according to the one who said that in ordinary circumstances we are not concerned that the hairs may have fallen out, in this case, due to the pain of childbirth we are concerned that they might have fallen out, and therefore it is impossible to examine the matter conclusively. § The Gemara returns to the mishna: How do they exempt their rival wives and the rival wives of their rival wives? The Gemara asks: From where are these matters, that not only is a rival wife exempt but the rival wife of a rival wife is exempt as well, derived? Rav Yehuda said that this is as the verse states: “And you shall not take a woman to her sister, to be a rival [litzror] to her” (Leviticus 18:18). The term litzror is written, with the letter reish appearing twice, rather than latzor, with a single reish, which means that the Torah amplified and included many rival wives. In other words, this verse includes not only the rival wife of a forbidden relative, but also the rival wife of a rival wife. Rav Ashi said: It is a logical inference, which does not require a source from the Torah. What is the reason that a rival wife of a forbidden relative is prohibited? The reason is that she stands in place of a forbidden relative. Since the forbidden relative caused her exemption from levirate marriage, she too is considered a forbidden relative who remains categorized as a brother’s wife. Therefore, the rival wife of a rival wife also stands in place of a forbidden relative, as she is like the rival wife of a forbidden relative and is therefore forbidden herself. § The mishna taught: How so? If the forbidden relative died, performed refusal, or was divorced, from that moment onward their rival wives are no longer considered the rival wives of a forbidden relative and are permitted. The Gemara remarks: This legal ruling with regard to a divorce is presented as a general principle and is therefore correct even if at the time that the deceased brother married the rival wife he was married to the forbidden relative, and ultimately divorced the relative, which means that for a period of time the women were rival wives. Even under these circumstances the prohibition of a rival wife of a forbidden relative does not apply, and she is permitted to enter into levirate marriage. And the Gemara raises a contradiction from a different mishna (30a), which discusses three brothers, two of whom are married to two sisters and one is married to an unrelated woman. One of the husbands of the sisters subsequently divorced his wife, and the one who was married to the unrelated woman died, and the one who divorced his wife married the yevama by levirate marriage and afterward died as well, which means that this yevama once again came for levirate marriage before the remaining brother, who was married to one of the sisters. It is with regard to this case that they said that if they died or were divorced their rival wives are permitted. This concludes the mishna. The Gemara infers from this mishna: The reason she is permitted is that the yavam first divorced the sister and only afterward married the unrelated woman. In this case, the unrelated woman was never actually the rival wife of a sister, despite the fact that they were, at different times, married to the same man. However, if the yavam first married the unrelated woman and afterward divorced the sister, she would not be permitted to enter into levirate marriage because for a period of time she had been the rival wife of a forbidden relative. These two mishnayot apparently contradict each other. Rabbi Yirmeya said: This mishna is disjointed, i.e., the mishnayot are truly incompatible, and the tanna who taught this halakha did not teach that halakha. The reason for the difference in opinions is that this tanna, of the mishna here, maintains that death causes her to come before him for levirate marriage. In other words, the decisive moment that determines the obligation in or exemption from levirate marriage is the moment of the childless brother’s death. Since in the case of the mishna here she was not the rival wife of a forbidden relative at the time of his death, the prohibition does not apply to her. And that tanna of the mishna dealing with three brothers maintains that the first marriage causes her to come before him for levirate marriage. In other words, the levirate bond is established at the time of the marriage, and since the second wife was the rival wife of a forbidden relative for at least a brief period, her exemption from levirate marriage was determined then. Rava said: Actually, both mishnayot represent the opinion of a single tanna, but he teaches the mishna employing the style: This and it is unnecessary to say that. In other words, the mishna here is referring to a case where he first married and later divorced, while the mishna that deals with three brothers is speaking of a simpler, more obvious case, in which he first divorced and later married the second wife. In that case she is certainly permitted. Accordingly, there is no real contradiction here between the mishnayot, as they utilize different styles of teaching. § The mishna taught: And if any of these forbidden relatives was a minor who could refuse her husband, then even if she did not refuse him, her rival wife performs ḥalitza and does not enter into levirate marriage. The Gemara asks: And let the minor perform refusal now, thereby annulling the marriage retroactively after the death of her husband, and let her rival wife enter into levirate marriage. Since this option is not accepted, let us say that it supports the opinion of Rabbi Oshaya. As Rabbi Oshaya said: A yevama who is a minor can refuse the levirate betrothal of the yavam. In other words, if he betrothed her she is free to say that she does not desire to marry him, a declaration that severs any connection between them. But she cannot refuse his bond. Provided that he has not performed a levirate betrothal, this minor yevama cannot annul the ties between them by a refusal, as theirs is not a bond of marriage, and the institution of refusal was established only with regard to marriage. According to this opinion, it is evident that a minor yevama who is a forbidden relative cannot perform refusal so as to enable her rival wife to enter levirate marriage. The Gemara rejects this suggestion: No; it is possible that a minor yevama can indeed refuse a levirate bond, but the rival wife of a forbidden relative is different, as she is not permitted in levirate marriage even if the forbidden relative herself can perform refusal. Why? As Rami bar Yeḥezkel taught in a baraita: If she refused the husband, thereby annulling the marriage, she is permitted to his father, as the marriage bond was entirely nullified retroactively and she is not considered his daughter-in-law at all. If, however, she refused only the yavam, she is forbidden to his father. Apparently, the reason is that at the moment of her coming before him for levirate marriage she had the appearance of his daughter-in-law. Since people will think she is his daughter-in-law, she is forbidden to the father. Here, too, at the moment of her coming before him for levirate marriage she had the appearance of his daughter’s rival wife. Consequently, the Sages did not permit her to enter into levirate marriage even if the other wife refuses the husband. MISHNA: Six women with whom relations are forbidden who were not enumerated in the first mishna are forbidden by prohibitions that are more severe than those listed in that mishna because they may be married only to others and may never be married to any of the brothers, due to the closeness of their relationship. However, this stringency entails a corresponding leniency: Since the halakha of levirate marriage is entirely inapplicable in these cases, their rival wives are permitted. The rival wife of a forbidden relative is forbidden herself only if the mitzva of levirate marriage is applicable, but where it is not in effect she is permitted. The six women with whom relations are forbidden are as follows: His mother, and his father’s wife, and his father’s sister, and his paternal half sister, and the wife of his father’s brother, and the wife of his paternal half brother. Each of these women with whom relations are forbidden is forbidden equally to all of the brothers, and the mitzva of levirate marriage is inapplicable. Therefore, her rival wife is permitted. § Up to this point, the discussions were based on the assumption that not only may a forbidden relative not enter into levirate marriage, but her rival wife is also exempt. However, this issue is subject to a long-standing dispute. Beit Shammai permit the rival wives to the brothers, as they did not accept the interpretation of the verses that indicates that rival wives are prohibited. And Beit Hillel forbid them. The previous mishnayot are in accordance with the opinion of Beit Hillel.

§ Apropos the mishna’s comments concerning the details of the relationship between Beit Shammai and Beit Hillel, the Gemara discusses the issue of disputes in general. We learned in a mishna there, in tractate Megilla (2a): The Megilla, the Scroll of Esther, is read on the eleventh of Adar, on the twelfth, on the thirteenth, on the fourteenth, or on the fifteenth, in cities surrounded by a wall, no earlier and no later than this. The obligation to read the Megilla on the fourteenth or fifteenth of Adar is stated in the Megilla itself, while the additional days were instituted by the Sages to allow residents of villages, who would come to the cities on Mondays and Thursdays and supply water and rations to the residents of the cities, to hear the reading of the Megilla at that opportunity. Reish Lakish said to Rabbi Yoḥanan: I should read here the verse: “You shall not cut yourselves [titgodedu]” (Deuteronomy 14:1), which is interpreted as meaning: Do not become numerous factions [agudot]. In other words, the Jewish people should be united, rather than divided into disparate groups that act in different ways. Before analyzing this issue, the Gemara asks: This verse: “You shall not cut yourselves,” is required for the matter itself, as the Merciful One is saying: Do not cut yourselves over the dead. How is the halakha concerning factions derived from this apparently straightforward verse?

Reish Lakish said to him: In that case there, the different factions are not noticeable, as one who sees another idle says: It is because he has no labor to perform. Therefore, refraining from work does not have the appearance of breaking off into factions. Rabbi Yoḥanan raises a difficulty: But Beit Shammai permit rival wives to the brothers, and Beit Hillel prohibit this practice. This is an example of a clear prohibition, and yet two different traditions were followed. Reish Lakish said to him: Do you hold that Beit Shammai actually acted in accordance with their own statement? Beit Shammai did not in fact act in accordance with their own statement, as the dispute was merely theoretical. And Rabbi Yoḥanan said: Beit Shammai certainly did act in accordance with their opinion. The Gemara comments: And this is also reflected in the dispute between Rav and Shmuel, as Rav says: Beit Shammai did not act in accordance with their own statement, and Shmuel said: They certainly did act in that manner.

This commandment also includes [a prohibition] against there being two courts which follow different customs in a single city, since this can cause great strife. [Because of the similarity in the Hebrew roots,] the prohibition against gashing ourselves [can be interpreted] to mean: "Do not separate into various different groupings."

(1) Within this prohibition: At the end of the first chapter of Yevamot (13b), if you will ask how can Rambam decide like Abaye against Rava, perhaps you can answer that we only say (as a rule) that halacha is like Rava where they argue according to their own logic, but not where they argue about what someone else said or his logic. See there. And Rav David Cohen in a responsum has difficulty with the words of Our Rabbi (Rambam), because when there is in one city a difference of customs, where some have a certain custom and others have a different custom, this creates a situation of two courts. But they are not truly two courts in every matter and instance. And it is possible that for this reason he was exacting in his language. He did not say that two courts in one city should not each practice its own custom, rather he wrote that there should not be two courts in one city, because once they each practice different customs, they are akin to two courts. It is also possible that there is an error in the text, and it should read 'it should not be _like_ there are two courts', and copyists left out the 'like'.

That He prohibited us from making a laceration for the dead in our flesh, like the idol worshippers do. And this is His, may He be exalted, saying, "you shall not gash yourselves (titgodedu)" (Deuteronomy 14:1). And the prohibition about this was already repeated with His saying, "You shall not make any lacerations in your flesh for the dead" (Leviticus 19:28). And it has already been explained in the Gemara, Yevamot (Yevamot 13b), that the essence of the verse, "you shall not gash yourselves," is, you shall not make a wound. And there it also says, "'You shall not gash yourselves,' is required for itself, as [the Torah] is saying, 'Do not make a wound for a corpse." And in the Gemara, Makkot (Makkot 21a), they said, "A laceration and a gash are the same." And there it is explained [that] one who makes a gash for a corpse is liable whether it was [done] with the hand or with a tool; but for idolatry, one is liable with a tool, but by hand, one is exempt - as appears explicitly in prophecy, "and they gashed themselves according to their practice with knives" (I Kings 18:28). And they have already said (Yevamot 13b) that included in this is the prohibition of disunity in the religious practices of a city and division [into] groups. And they said, "'You shall not titgodedu' - you shall not make agudot, agudot (many groups)." But the essence of the verse is as we explained - do not make a wound for a corpse - whereas this is like a homily (drash). And likewise that which they said in Sanhedrin (Sanhedrin 110a) - "One who maintains a disagreement transgresses a negative commandment, as it is stated, 'and not be like Korach and his congregation' (Number 17:5)" - is also from a homiletic angle. However the essence of [that] verse is [simply] to deter [from this]. And according to what the Sages explained, it is surely a negation, not a prohibition. For they explained that the content of this statement is that God, may He be exalted, is saying that one who will disagree and challenge the priesthood at some future time will not be punished with that which Korach was punished. Indeed he will be [punished], "Like the Lord spoke through Moshe to him" - meaning, tzaraat - as that which He said to Moshe, "Place your hand in your bosom," (Exodus 4:6) and as is made clear with King Uzziah (II Chronicles 26). And I will [now] return to the [primary] intention of the commandment and say that the regulations of this commandment have already been explained at the end of Makkot and that one who transgresses this negative commandment is lashed. (See Parashat Re'eh; Mishneh Torah, Foreign Worship and Customs of the Nations 12.)

Some have the custom to cut their hair on Rosh Chodesh Iyyar, but this is a mistake. Rema: However, in many places, the custom is to cut their hair until Rosh Chodesh Iyyar, and they do not cut their hair from Lag BaOmer forward, even though it is permitted to cut one's hair on Lag BaOmer itself. But those places who have the custom to cut their hair from Lag BaOmer onwards, do not cut at all after Pesach until Lag BaOmer. And within one city, it should not be that some follow one custom, and some follow another, because of "lo titgodedu" ("do not cut yourselves" - Deut. 14:1, interpreted in Yevamot 13b as "lo te'asu agudot agudot," "Do not become seperate groups"); all the more so, one may not follow both leniencies.