Lashes without an Action

Rava inquires (Daf Yomi: Nazir 17a): What is the law if a nazir is in a cemetery? Is there a certain amount of time that he needs to be there in order to receive lashes (one who became tamei in the Beis Hamikdosh and lingered there for the amount of time it would take for a person to prostrate himself is liable; is there a defined time for the nazir as well)?

The Gemora analyzes the case: If he is speaking about a case where he declared the vow while he was in the cemetery, and people warned him before his vow, “Do not utter this vow,” why would loitering be necessary? A nazir who enters a cemetery is punished without lingering because he was warned against entering (and he refused to listen); so too, here, he was warned (and he intentionally went against it)!

Tosfos asks: Shouldn’t this be regarded as a violation without performing an action? Why would he receive lashes for declaring himself to be a nazir?

Tosfos in Shavuos writes that the Gemora is in accordance with the opinions that maintain that one can receive lashes even without committing an action.

Tosfos here answers: Although he cannot receive lashes for the acceptance of the nezirus while inside the cemetery (for that does not entail an action), he will receive the lashes for continuing to remain in the cemetery after the acceptance of nezirus. That does constitute an action.

The Steipler Gaon asks: Where is the action? Why is the fact that he refused to leave regarded as an action?

He explains: Anytime an action is performed through a person, and he has the ability to eliminate it, but willingly refrains from doing so, this is considered as if he has committed an action, even though it happened by itself. The fact that the nazir is standing in the cemetery refusing to leave, that constitutes an action.

The Mishna Lamelech explains Tosfos differently: Tosfos maintains that although the transgression was committed without an action, he may receive lashes for the entering into the cemetery. Although no violation occurred at that time (since he was not yet a nazir), he receives lashes, since that was the action that led to the transgression.

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A Short Term of Nezirus

The Mishna states (Nazir 7a) : If one says, “I am hereby a nazir for one large period,” or “I am hereby a nazir for one small period,” or “from here until the end of the world,” he is a nazir for thirty days.

The Meiri explains that when he said “one small period,” he meant to accept a nezirus less than thirty days; and when he said “one large period,” he meant to accept a nezirus longer than thirty days.

Tosfos explains differently: When he said “one small period,” he meant that the observance of the laws of nezirus is easy for him; it is not a bother for him at all. When he said, “one large period,” he meant that an abstinence of thirty days seems to him as a very long time and is a burden upon him.

The Mishna Lemelech asks: Why did Tosfos not explain like the Meiri?

The Be’er Moshe answers: Tosfos wanted the two cases to be similar. Just like by the case of “the large period,” he meant that it is difficult for him, so too, in the case of “the small period,” he meant that it would be easy for him.

The Birchas Rosh writes that there is a practical halachic difference between the two explanations. If one would say, “I am hereby a nazir for one large period and for one small period.” According to Tosfos, he will be required to observe two periods of nezirus. However, according to the Meiri that “a small period” means a nezirus less than thirty days, it will be regarded as if he said, “I am a nazir and one day,” where the halacha is that he will be a nazir for thirty-one days.

Reb Moshe Mordechai Halevi Shulzinger writes that there can be another difference according to that which the Minchas Chinuch (368:4) states: If one accepts to become a nazir for one day, although he is obligated to observe a nezirus for thirty days, nevertheless, the prohibition against violating his word is only applicable for one day. According to the Meiri, when one said, “I am hereby a nazir for a small period,” he is only accepting for one day. Although the halacha is that he is a nazir for thirty days, the prohibition against violating his vow will only be applicable for one day. However, according to Tosfos, he is accepting an ordinary nezirus; he is just saying that it is easy for him. Accordingly, the prohibition against violating his word will apply for the entire nezirus.

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The Violation of a Kohen's Wife

The Mishna (Nedarim 90b) stated: At first they said that the following three women must be divorced and they also receive their kesuvah: One (a wife of a Kohen) who declares, “I am defiled to you (I have been violated forcibly by another man),” or “Heaven is between me and you (my husband is impotent),” or “May I be kept away from the Jews (a vow to have no cohabitation with any of them; such a vow is assumed to be the result of the pain that cohabitation may cause her, and therefore justified).” This ruling was afterwards retracted in order that a wife might not cast eyes upon another man and act immorally towards her husband. Instead, it was ordained that one (a wife of a Kohen) who declares, “I am defiled to you (I have been violated forcibly by another man)” must bring evidence in support of her statement; in respect of a woman who tells her husband, “Heaven is between me and you (my husband is impotent),” peace is made between them by way of a request addressed to the husband that he should treat his wife properly; and if a woman vowed, “May I be kept away from the Jews,” the husband revokes his part of the vow and she may cohabit with him, though she remains removed from all other Jews.

The Meiri writes that it became common for women to cast their eyes upon other men, and they would gain their release from their husband with these claims. Even in the case where she made a neder prohibiting cohabitation with all Jews, they were still concerned that she might later petition a sage to have the neder annulled.

The Ra”n asks: If with these claims, she is believed, and therefore, halachically forbidden to her husband, how did the Chachamim permit her to her husband? Where has the prohibition gone?

The Ra”n answers that the Chachamim have the authority to retroactively take away their marriage, and it would emerge that at the time that she was violated, she was unmarried, and therefore, she is legally permitted to her husband. The Chachamim have this right, for any marriage is contingent upon the consent of the Chachamim, and if they see a reason to nullify the kiddushin, they may do so.

The Ra”n suggests an alternative answer: In truth, the woman should not be believed with respect to these claims, because she cannot release herself from her obligations to her husband. The initial ruling believed her to be speaking the truth, for otherwise, she would not have disgraced herself with these claims. Afterwards, when their level of morality deteriorated, and they realized that the women were casting their eyes upon other men and falsely claiming that there were grounds for divorce, the Chachamim rejected her claim.

The Rishonim ask: Why don’t we apply the principle of “shavya a’nafshei chaticha d’issura,” one who states that something is forbidden, even if he is not believed in respect to everyone else, renders the object forbidden to him? If so, she should be forbidden to him, even if we do not believe her!

Tosfos quotes from Rabbeinu Eliezer that a Kohen’s wife who is violated is forbidden as a zonah, is only a prohibition on the Kohen, but not on her, so since she is not believed, she is permitted to remain with him.

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FOOD FOR THOUGHT - Kesuvos 29 - Daf Yomi

*** Why are the halachos of violation and seducing in Meseches Kesuvos?

*** The Mishna states: These are the na’aros (girls who have reached maturity; generally at twelve years old until they become a bogeres at twelve and a half) who are entitled to a fine.

Rashi explains: If a man violates an unmarried woman, he must pay a penalty of fifty shekalim to her father.

Why did Rashi choose to explain the Mishna to be referring to a case of violation; the same halacha would be true if a man seduces a woman?

*** Rabbi Meir said: Concerning a minor girl from one day old until she produces two pubic hairs; her father is entitled to sell her as a maidservant, but she is entitled to a fine.

Why does she have to be one day old; couldn’t the father sell her as a maidservant while she is still in her mother’s womb?

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