The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
This month’s Steinsaltz Daf Yomi is sponsored by Dr. and Mrs. Alan Harris, The Lewy Family Foundation, and Marilyn and Edward Kaplan
In the context of discussing how halacha deals with actions that will lead to a person being responsible on two different levels – e.g. he will deserve both a death penalty and to pay as a consequence of what he did, our Gemara quotes a Mishnah from Masechet Chullin (14a) which teaches that a person who performs shechita (ritual slaughter) of an animal on Shabbat or on Yom Kippur will receive the death penalty; nonetheless his shechita will be considered good – the animal will be deemed kosher and can be eaten.
Although this ruling is presented as a straightforward halacha, the rishonim are disturbed by the fact that we ordinarily deem a Shabbat transgressor as a meshumad – an apostate – whose shechita should be considered invalid!
Tosafot in Hullin argue that not every violation of Shabbat will give a person the status of a meshumad. In fact, only someone who willfully violates the Sabbath in a public manner would be put into that category. Apparently in our case the shechita was done privately. Another suggestion raised by Tosafot is that chillul Shabbat would cause us to consider the transgressor a meshumad only after the act was done. Thus, the forbidden shechita on Shabbat would be considered valid, even as it would create a situation where any subsequent shehitah done by this individual would not be accepted.
In his commentary to the Mishnah in Hullin, the Rambam takes a different approach, arguing that the person in this case performing the shechita on Shabbat must have done so be-shogeg – by accident, i.e. he was unaware that it was Shabbat, or was not knowledgeable in the rules of Shabbat to know that shechita was forbidden. It is clear that someone who accidentally transgresses the rules of Shabbat is not considered an apostate. Were he to have purposefully done shechita on Shabbat, however, the meat would not be considered kosher.
Our Gemara quotes a baraita that was taught in the study hall of Chizkiya:
In the case of an animal that was damaged, the one who caused the damage is always held responsible to make restitution. That is to say, we do not distinguish between:
- Shogeg and meizid – whether it was done accidentally or on purpose
- Mitkaven and en mitkaven – whether or not it was done with intent
- Derekh yeridah and derekh aliyah – whether the person was heading down or climbing up.
In all of these cases, the damage must be paid for.
Tosafot point out that these three specific cases refer to three separate topics in the laws of nezikim – damages. The discussion of shogeg and mayzid refers to the question of whether the person was aware of what he was doing. From a legal perspective this means: had he been warned about the consequences of his actions before he carried them out? Mitkaven and en mitkaven focus on whether there was full intent to carry out this action on this person, or perhaps, he meant to kill or injure one person and did it to another. The question of derech yeridah or derech aliyah is an issue specifically for galut – exile. According to the Torah, a person who kills accidentally will be free from capital punishment for murder, but will be obligated to move to one of the arey miklat – cities of refuge – where he will be protected from the go’el ha-dam – a relative of the dead man who can avenge the blood of his kin. The Torah teaches that the rule of exile applies only to cases whether the accidental death took place derech yeridah – e.g. when dropping something on the victim or falling on him. If it happened derech aliyah, however, he need not go to galut to the ir miklat.
One example of a woman who, according to the baraita, will not receive a payment if she is seduced or raped, is an aylonit – a woman whose physical makeup will not allow her to have children (the term stems from the word ayil – a male ram – alluding to her lack of femininity).
From the detailed discussions in the Gemara – mainly in Masechet Yevamot – it appears that an aylonit suffers from a genetic defect that does not allow her to have children, as distinct from an akarah – a barren woman – whose physical and sexual development is ordinarily normal, but cannot have children because of some other deficiency or impediment. From those descriptions it appears that an aylonit can be recognized by certain unique physical traits, including a lack of secondary sex characteristics, like pubic hairs. Furthermore, it appears from the Gemara that there are different types of aylonit, ranging from women who have an overabundance of male hormones to those who suffer from Turner syndrome, where only one X chromosome is present and fully functioning. Approximately 98% of all fetuses with Turner syndrome spontaneously abort; the incidence of Turner syndrome in live female births is believed to be about 1 in 2500.
Within Jewish law there are many discussions about the status of an aylonit, mainly because of the lack of secondary female sex characteristics and because they develop at a relatively advanced age. Thus we find questions about when an aylonit is considered to have reached the age of adulthood, which halakhah ordinarily defines as physical maturity.
With regard to the question of the monetary payment in a case of seduction or rape, our Gemara explains that the reason the baraita suggests that an aylonit does not receive payment is because she is perceived to be a ketana – a minor – according to Rabbi Meir. The chachamim, who disagree with him and rule that a ketana receives these payments, would rule that an aylonit does, as well.
Generally speaking, we require a woman to wait three months before getting married when it is necessary to clarify whether she is already carrying another man’s child. According to a baraita quoted on our daf, Rabbi Yehuda also applies this rule to a woman who converts, a woman who is freed from captivity, and a woman who is released from slavery. In all of these cases, Rabbi Yehuda rules that we must be concerned that in their former situations these women engaged in sexual relations – perhaps against their will – and therefore they may be pregnant. We must obligate them to wait three months before they can marry. Rabbi Yossi, on the other hand, permits them to marry immediately.
Rabbah explains Rabbi Yossi’s position by saying that since these are all cases where the woman does not want to become pregnant, she will likely use a mokh – an absorbent barrier in her vaginal canal that will keep her from conceiving. Abayye objects that this will not work in all of the cases. The woman who was held captive, for example, could not possibly prepare herself in such a way before she was raped. Abayye suggests that Rabbi Yossi relies on the fact that the women turned themselves over in order to keep the semen from fully entering, so we need not be concerned that they became pregnant. Rabbi Yehuda is concerned that they do not turn themselves over well enough, and they may become pregnant anyway, their best efforts notwithstanding.
From a medical point of view, “turning over,” as described by Abayye, would have no effect whatsoever on the chances of pregnancy. It is likely that Abayye’s intention is not simply for the women to turn over, but to take all preparations possible in order to avoid pregnancy, including herbs, drugs and so on. Rabbi Yehuda’s concern is that there are few methods that can be used after sexual relations are over that can guarantee that no pregnancy will result.
In the course of discussing whether a person who commits an act that will theoretically obligate him to receive two separate punishments will only receive the more severe one, the Gemara quotes the teaching of Tanna dvei Rabbi Chizkiyah that a person who kills another as a consequence of poking out his eye will not be responsible for the eye and the murder. The source brought for this is the famous passage ayin tachat ayin (Shmot 21:24) – “an eye for an eye” – which is interpreted to limit the punishment. “An eye for an eye,” but not “a life and an eye for an eye.”
The Torah‘s statement that we punish “an eye for an eye” is understood by the Sages to refer to a monetary obligation rather than a physical punishment. In a lengthy discussion that appears in Masechet Baba Kamma (pages 83-84), a number of Sages take turns responding to the Gemara’s suggestion that perhaps the pasuk should be understood according to its simple meaning. All are in agreement that it is to be interpreted as payment, not losing an eye.
In his Mishnah Torah (Hilchot Chovel U’Mazik 1:3-6) the Rambam explains that the Torah chose to use this language, rather than simply state that personal injury will result in monetary compensation, in order to emphasize that someone who injures another really deserves to suffer the same injury that he inflicted on his fellow. This notwithstanding, the laws of the Torah only require restitution, and not corporeal punishment. In a clear attempt to dispel any doubts about this interpretation, the Rambam further states that this ruling was an oral tradition received by Moses on Mount Sinai, and that this was the practical ruling of the courts in the Land of Israel beginning with the time of Yehoshua and Shmuel ha-Ramati and continuing until contemporary times.
One of the basic sources in the Talmud that deals with issues of birth control appears on our daf:
Rav Beivai taught a baraita before Rav Nachman. Three categories of women may use a mokh (an absorbent cloth) while engaged in marital relations – a minor, a pregnant woman and a nursing woman. The minor, because she might become pregnant and as a result might die; a pregnant woman, because she might cause her fetus to degenerate into a sandal (a formless creature); and a nursing woman, because she might have to wean her child prematurely, which may result in its death. What is the age of such a minor? From the age of eleven years and one day until the age of twelve years and one day. One who is under or over this age must carry on her marital intercourse in the usual manner. This is the opinion of Rabbi Meir. The chachamim say that all women should carry on marital intercourse in the usual manner, and heaven will have mercy on them (i.e. no harm will come to them), based on the passage that states (Tehillim 116:6) Hashem preserves the simple.
The rishonim differ as to how to understand this baraita, and what its implications are for the halacha. According to Rashi, the discussion is whether a woman can insert a physical barrier into her vaginal canal as a means of birth control. Rabbi Meir’s position is that a woman who has reason to fear that pregnancy will result in danger to her or to her unborn child is permitted to do so, although it would be forbidden to other women. Tosafot and others reject Rashi’s explanation, arguing that inserting such a mokh during relations would be forbidden according to all opinions. They suggest that the mokh is an absorbent cloth that is inserted following sexual relations in an attempt to remove the semen. According to Rabbi Meir, a minor as well as a pregnant or nursing woman would be obligated to use this mokh in an attempt to keep a potentially dangerous pregnancy from developing (a method that today is recognized as being of limited use, if any), while other women would be permitted to do so.
We have learned that according to the Torah, when a young woman is raped or seduced, the perpetrator is required to pay a kenas – a penalty – to the girl’s father (see Shmot 22:15-16; Devarim 22:28-29). The Mishnah on our daf teaches that aside from that kenas, the woman also receives other payments due to her because of boshet and pegam – embarrassment and loss of personal value, similar to other cases of assault when these payments are made. The Mishnah explains that although the kenas is a standard 50 shekalim for all women, the boshet and pegam can be any sum, which is decided by the courts based on the status of the perpetrator and the victim.
In answer to the Gemara‘s query that we need to find a source to support the requirement to pay boshet and pegam – after all, the Torah makes no apparent mention of any payment aside from the 50 shekel kenas – Rabbi Zeira suggests that we do not need a biblical passage, as it is simply a logical argument that the daughter of a king should not receive the same 50 shekalim as a girl from a simple family.
Both Abayye and Rava argue that there are pesukim from which this can be derived. Abayye, for example, points to Devarim 22:29, from which it is clear that the kenas is only payment for the inuy – the suffering that was imposed – implying that other payments are to be made, as well.
Abayye rejects Rabbi Zeira’s suggestion by pointing out that there are other cases in the Torah where the kenas is identical in two situations even though the value of the individual appears to be different. For example, when a non-Jewish slave is killed by a goring ox, the owner of the ox is obligated to pay 30 shekel to the owner of the slave (see Shmot 21:32). This is true whether the slave was trained to cut pearls or if he only knew how to mend simple garments.
Pearls usually have a small hole drilled into them, which allows them to be strung. In order to ensure that the pearl is not ruined in the course of the drilling, great care must be taken by a well-trained artisan, who knows how to drill the hole with only minimal damage to the beauty of the stone. It is clear that the expert who knows how perform such tasks will be well-paid for his efforts, and a slave with these abilities would be a valuable asset to his master.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.