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.
From the perspective of Jewish law and Jewish thought one of the main points of marriage is for the husband and wife to carry on a sexual relationship that will lead to the birth of children, fulfilling God’s command to Adam and Eve of peru u’revu – to go forth and multiply. Will a marriage that cannot lead to a sexual relationship, referred to by the Gemara as kiddushin she-lo nimseru le-bi’ah, have any validity? The Talmudic sages Rava and Abayye disagree on this point. Abayye believes that such kiddushin will lead to marriage; according to Rava such kiddushin will have no significance. Rava’s source is a teaching that he received from bar Ahina who pointed out that the Biblical passage describing marriage states clearly that a man takes a woman and sleeps with her (see Devarim 24:1), indicating that without the potential for a sexual relationship the marriage has no meaning.
In defining kiddushin she-lo nimseru le-bi’ah, Rashi seems to indicate that this is any situation where a sexual relationship cannot develop in this marriage. In truth, we have no sources that would preclude marriage in a situation where some physical obstacle will keep the husband and wife from engaging in sexual relations. Moreover, as many rishonim point out, if the obstacle keeping the couple from engaging in sexual relations derives from halakhic sources (e.g. when the marriage is forbidden by the Torah, like a kohen marrying a divorcee), then the kiddushin does take effect, the couple is just not allowed to live together as man and wife and must get divorced.
Because of these questions, most of the commentaries explain that kiddushin she-lo nimseru le-bi’ah means a case where the act of kiddushin itself creates a forbidden relationship that will not allow the husband and wife to live together. It is only that case where Rava would rule that the kiddushin cannot possibly be recognized as creating a marriage, if that marriage can never be consummated. Examples of such cases are discussed in the Gemara, e.g. when a man offers kesef kiddushin (money to effect a marriage) to two sisters simultaneously. Since a man cannot be married to two sisters, the kiddushin will have no meaning.
Our Gemara quotes a Mishnah whose source is in Masechet Yevamot (23b) where we find a most unusual case. What happens if a man marries one of two sisters, but does not know which one he married? The Mishnah teaches that in such a case the man must divorce each of them, since he cannot marry two sisters. Even after he divorces one he cannot marry the other, since she may be the sister of his divorced wife, which is also forbidden by the Torah.
The suggestion raised in our Gemara is that the confusion in our story stemmed from the fact that the marriage somehow was done without clarity from the very beginning – perhaps a situation where both sisters appointed a single individual to act as their agent to accept marriage proposals on their behalf. Someone approached the agent and offered him kesef kiddushin, money (or a ring), to effect the marriage – and said “with this money I am marrying one of the sisters” without clarifying which one he intended.
The Ritva suggests that if we assume yesh bereira – that we can ascertain someone’s intent retroactively, once they make a decision later on – then such a marriage may work. Still, he argues, the case might be where a person leaves the decision to someone else (e.g. “I will marry whichever woman my father decides”) and then that person disappears and cannot make the decision.
Our Gemara brings this case in order to support Abayye‘s position that we learned on yesterday’s daf (page) – that kiddushin she-lo nimseru le-biah – a marriage that could never be consummated – is still considered marriage – after all we require divorces to undo them.
This proof is rejected because the case could be a situation where a marriage took place with one of the women, and afterwards there was a dispute about what happened, to the extent that no one was sure who was truly married. In this case, it is clear that a marriage took place between two people; we just cannot determine which two people they were.
According to the Mishnah (52b) a portion from an animal that was brought as a sacrifice in the Temple cannot be used as kesef kiddushin (money used to marry a woman). This is true for both kodshei kodashim – sacrifices like a sin-offering where the meat is given to the kohanim (priests) – as well as for kodashim kalim – sacrifices like a korban shelamim, where the meat is divided between the kohanim and the owner of the sacrifice.
The Gemara explains that this rule is derived from a passage in Bamidbar (18:9) that compares the meat of the sacrifice that is given to the kohanim to fire; just as fire is only for eating, similarly the meat of the sacrifice is only for eating. This enigmatic statement is explained by Rashi to mean that the portion given to the kohen is paralleled to the portion placed on the altar to be burned. Just as the portion belonging to the altar must be “eaten” – i.e. burned – so the portion given to the kohanim must be eaten, and it cannot be used for any other purpose.
Rashi appears to expand the rule of the Mishnah not only to kohanim, but also to the owners of the sacrifice. That is to say, the owner of the korban would not be able to marry a woman with his portion of the korban that is given to him to eat. Others disagree with Rashi, arguing that the Mishnah only restricts use of the sacrifice to kohanim, but that the owner of a sacrifice would be able to make use of his portion. The Talmud Yerushalmi raises the question of whether the restrictions apply only to someone who wants to use the meat itself for kiddushin, or would it also apply to someone who attempts to use the value of the meat to effect the kiddushin, giving the meat to a woman who can then sell it to a kohen and receive money in exchange. Tosafot, who assume that even the value of the meat cannot be used, explain that since the meat from a sacrifice is seen as being a divine present (mi-shulchan gavo’ah ka-zachu), even its value cannot be used for mundane purposes.
When kohanim perform the avodah in the Temple, they are required to wear bigdei kehunah. In the context of the discussion in the Mishnah (52b) about a person who attempts to marry a woman by giving her something that belonged to the Temple, our Gemara inquires as to the status of these bigdei kehunah. Are they considered holy or not? According to our Gemara, a person is allowed to derive personal benefit from kutnot kehunah – the uniform worn by a priest – since lo nitnah Torah le-malachei ha-sharet (the Torah was not given to angels, but to human beings). This expression is understood to mean that since a kohen cannot possibly refrain from deriving personal benefit from clothing that he wears, such benefit must be permitted. The Me’iri explains that even though the benefit was permitted only to kohanim, nevertheless it is difficult to say that something is not considered holy for just one group of people. Thus, there is no me’ilah (deriving forbidden benefit from the Temple treasury) in making use of such clothing.
The Me’iri notes that the discussion of whether or not there is a prohibition involved with making use of bigdei kehunah would not apply to the avnet – the belt worn by kohanim, since it is made out of kilayim – a forbidden mixture of fabrics – and could only be worn during the Temple service itself. Some point out that our Gemara seems to support this position, since it does not use the term bigdei kehunah, rather kutnot kehunah which does not refer to all of the priestly garments, but only to the kutonet, the outer garment.
Based on this understanding, the Me’iri asks why a person could not use kutnot kehunah to marry a woman – after all, we have established that they are not intrinsically holy!? He answers that there is no blanket permission to use these kutnot kehunah for any purpose; they can be used only for normal purposes, which would not include marriage.
In the Gemara‘s continuing discussion of the Mishnah (52b) about a person who attempts to marry a woman by giving her something that belonged to the Temple, a Mishnah from Masechet Me’ilah (19b) is quoted. According to that Mishnah, once someone has been mo’el be-hekdesh (has made inappropriate use of an object that belonged to the Temple), subsequent use of that object by someone else does not carry with it any negative ramifications. The exception to this rule is an animal (that is to be brought as a sacrifice) and klei sharet (utensils used in the Temple service). Thus, if a person rode an animal that was set aside for sacrifice and then a second and third person did the same, all of them would be liable for having been mo’el be-hekdesh. Similarly, if someone drinks from a kli sharet and then a second and a third person do the same, they are all liable. The simple explanation for this is that the sacrifice and the utensil have intrinsic holiness that does not disappear simply because it was used. This stands in contrast to kodshei bedek ha-bayit – objects that were consecrated to be used by the treasurer of the Temple in the Temple – which in any case can be redeemed, and used for mundane purposes. With regard to those objects, if they were used outside of the Temple, the object is removed from its former status of hekdesh and is rendered chol – ordinary.
The Rambam offers a different approach. According to the Rambam the difference between an animal and klei sharet on the one hand and other objects owned by the Temple on the other hand is not based on the question of whether or not there is intrinsic holiness attached to it, rather it is a question of whether the object will be damaged or diminished by its use. An animal (according to the Rambam’s approach this is true whether or not it will be used as a sacrifice) and a kli sharet can be used over and over without loss of value, so they retain their holiness, and therefore several people can do me’ilah. Other objects, which suffer wear and tear after a single use, will immediately become chol and only the first person would be liable for me’ilah.
As we have learned in the very first Mishnah in Masechet Kiddushin, one method of creating a marriage is for a man to transfer an object of value to a woman, saying to her harei at mekudeshet li be-kesef zo ke-dat Moshe ve-Yisra’el – “behold you are betrothed to me with this money according to the laws of Moses and the Jewish people.” For the marriage to take effect, the object that is transferred must have some minimal value – a prutah (the smallest denomination coin in the time of the Mishnah). Our Mishnah discusses whether objects that appear to have value, but whose use is forbidden by Jewish law, can be used for kiddushin.
The Mishnah lists several examples of issurei hana’ah – objects from which someone cannot derive any benefit – which are considered valueless, and therefore cannot be used for kiddushin. Among them are –
- Orlah – fruit that grows during the first three years after a tree is planted.
- Kil’ei ha-kerem – when grain is grown in a vineyard in a forbidden manner
- Shor ha-niskal – an ox that is waiting to be killed by the order of the bet din (e.g. an ox that killed a person)
- Basar be-halav – meat and milk that were cooked together.
The Mishnah concludes that if, in violation of Jewish law, someone were to sell any of these objects, the proceeds could be used for kiddushin, since the prohibition does not transfer to the money that was received in exchange for it.
Rabbeinu Yehonatan writes that the rule presented in this Mishnah is obvious, since it makes no sense that kiddushin can be completed with the exchange of an object that has no halakhic value. He suggests that the Mishnah needed to teach this rule mainly for the last line, which permits the use of money that was received in exchange for one of these objects, and allows the marriage to take place.
As we learned on yesterday’s daf (page), objects that appear to have value, but whose use is forbidden by Jewish law, cannot be used for kiddushin, which can only take effect if the object that is transferred from the husband to his wife has some minimal value. The Gemara on our daf examines each of the examples cited in the Mishnah as being assur be-hana’ah – objects from which someone cannot derive any benefit – and searches for a source for them.
When examining basar b’chalav – the forbidden combination of meat and milk, the Gemara quotes a baraita taught in Rabbi Yishmael‘s yeshiva that the Torah states the prohibition against cooking meat and milk together three times (lo tevashel gedi ba’chalev imo – see Shemot 23:19; 34:26 and Devarim 14:21). One teaches that they cannot be eaten together, one teaches that they cannot be cooked together and one teaches that we cannot derive benefit from their combination.
The Ritva points out that even though there are three separate prohibitions derived from these three passages, nevertheless they are all expressed the same way in the text – lo tevashel – do not cook them together. He suggests that it must be taught this way in the Torah because on a Torah level meat and milk are only forbidden together if they are cooked. Our tradition of separating meat and milk even when cold and raw is a relatively new tradition.
The Gemara mentions that there is a dissenting opinion on this matter. Rabbi Shimon ben Yehuda believes that meat and milk that are cooked together cannot be eaten, but you can derive benefit from them. His source for this is the use of parallel language in the case of meat and milk which is introduced with the words – ki am kadosh ata la-Shem Elokecha, lo tevashel gedi ba’chalev imo – “For you are a holy nation to God, do not cook a kid in its mother’s milk,” which is similar to the passage about not eating an animal that was killed by violence (terefah) – v’anshei kodesh tihiyun li, u’basar ba-sadeh terefah lo tokhelu, la-kelev tashlikhun oto – “Holy people you will be to me, and meat that is found in the field as terefah you should not eat, rather you should throw it to the dog.
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.