Kiddushin Bekiyut #9: 77a - 77b
Ein issur chal al issur
1. There is a general principle that "ein issur chal al issur." The gemara utilizes this principle in a number of situations. Our case involves the prohibitions of gerusha, chalala, and zona to a kohen. The gemara (77b) subsequently mentions the prohibition of eating on Yom Kippur and that of neveila. In Yevamot (32a) the gemara applies the principle to two brothers who marry two sisters - each woman is both achot isha (a wife's sister) and eishet ach (a brother's wife). There are several other cases mentioned in different masechtot.
The standard case of ein issur chal al issur is where the two prohibitions are of equal rank, without any severity or expansion of one over the other. There are three cases where one can say that issur chal al issur.
a. Issur mosif. If the second issur has a greater degree of applicability than the first. This can be either because it applies to more people (gerusha vs. almana - a divorcee is prohibited to all kohanim, whereas an almana is prohibited only to kohen gadol), or because it includes additional issurim (chalala vs. gerusha - if she is the daughter of a kohen, a chalala loses the permissibility to eat teruma).
b. Issur kollel. The cause of the second issur also creates a prohibition on other objects not included in the first issur. For instance, Yom Kippur creates a prohibition to eat any food. There is no "mosif" to the neveila when Yom Kippur begins, but there is a difference to other foods. Some opinions hold that since Yom Kippur prohibits other foods, it prohibits the neveila as well.
c. Bat achat. Both prohibitions are simultaneous. It appears from the gemara that this exception is unchallenged; all opinions agree that in such a case issur chal al issur.
2. The logic of issur mosif seems to be as follows. "Ein issur chal al issur" means that if the second issur is redundant, it doesn't count. Issur mosif is a case where the second issur is not redundant, it "adds" (mosif) something. Hence, issur chal al issur. Issur kollel, on the other hand, does not add anything to the OBJECT that is prohibited. The issur has wider scope - it applies to other objects. This explains why issur mosif is considered to be a stronger sevara than issur kollel. The basic principle is the same though. Since the second issur is not redundant, it is chal. One who accepts issur mosif but not issur kollel argues that in issur kollel, the second issur can apply to the other objects, but not be chal on the object previously prohibited. In issur mosif, on the other hand, he agrees that this particular object cannot become prohibited in respect to the additional aspect without being prohibited in respect to the aspects included in the original prohibition.
Our gemara states that zona is an issur mosif vis-a-vis chalala because "shem znut posel b'yisrael." In this case, there is no actual additional issur. This particular woman is not married and hence does not become prohibited to any additional man. Why is this issur mosif?
This point makes clear that issur mosif is based on the "shem issur." Is the new category which we wish to apply different in scope from the original one, or is it merely a change in name. To say that something is prohibited, and also forbidden, is not to say two different things. Ein issur chal al issur means that to say that someone is forbidden because she is a gerusha, and also because she is an almana, is not to say two different things either. Only if the second category - the shem issur - constitutes an addition to the first, can it apply. This will be true if there is an actual additional prohibition, but it is also true if in principle the second category is wider. That is the case with zona. The category of zona, since it applies to Yisrael, is a wider one than chalala, which only applies to kohen.
[The gemara is assuming that the issur zona to a kohen, and the issur zona to a husband - a woman who commits adultery is prohibited - both belong to the same category. This is far from obvious, despite the same word used in both cases. We shall not go into this point here.]
The Rambam (Hilkhot Shegagot 4,3) states that issur mosif only applies if the additional people prohibited actually exist. For instance, eishit ach is mosif on eishet isha only if there is a third brother. (Reuven marries Sheindel, the sister of Shimon's wife. If there is a third brother, Levi, then Sheindel is now prohibited to him as eishet achiv, hence she is also eishet achiv in regard to Shimon.) If there is no actual case to which the additional prohibition applies, it is not considered an issur mosif. This would seem to contradict the answer of our gemara concerning "shem zona," since here there is no actual additional prohibition.
[Take five minutes to think. What is the difference between zona -->chalala and eishet ach -->achot isha?]
The answer is that it depends on the category definition. Zona, because it applies even to Yisrael, is a wider category than chalala by definition. Hence, it is a non-redundant addition to her status. But both eishet ach and achot isha are defined by individuals and not by categories. Eishet ach is a prohibition that applies to specific family members, not to a class of people. In such a case, non-redundancy is defined by a specific individual who is included by the second prohibition, but not the first.
3. "Bat achat" is essentially different from mosif and kollel. Here the issurim are equivalent and one cannot be chal over the other. The reason that they are both chal is apparently because neither has priority. The Tosafot Rid (Kiddushin 50b) points out that simultaneity is not a guarantee of success. The gemara has a principle "kol she-eino bezeh achar zeh, afilu bevat achat eino" (whatever cannot be effected in sequence cannot be effected simultaneously). Here, he says, issur bevat achat is chal because the alternative is to say that neither is chal. That is unthinkable, he claims; hence, they both must be chal. The Shaagat Arye and others, basing themselves on the Rid, claim that if there is any asymmetry between the issurim, so that one could chal and not the other, we don't say that both are chal.
4. Ein issur chal al issur. Does that mean that the second prohibition is non-existent, or only that the transgressor doesn't receive two punishments?
a. R. Yochanan (Yevamot 32b) claims that R. Shimon and R. Yossi argue whether in a case of ein issur chal al issur it is "as though he has committed two (transgressions)" or not. The ramification, since in any event they both agree that he receives only one punishment, is where to bury him (since there is a principle that a tzaddik should not be buried next to a rasha). This seems to imply that according to R. Yossi, there are in fact two transgressions. (The Beit HaLevi denied this conclusion. There is only one transgression, he claimed, but morally he is still a greater rasha.)
b. Rav Yosef Engel (Beit Otzar 70) raised the following question. Our gemara mentions the case of a kohen gadol who has relations with his widowed sister as a case of ein issur chal al issur. The issur almana (widow) is not chal on achoto (sister). Rav Yosef Engel asked: Does the woman become a chalala (as should result from a kohen-prohibited relationý)? In other words, is there no ISSUR almana, or is she not considered - relative to the kohen gadol - to be an almana at all? Is the category of issur excluded, or the category of almana? He assumes that according to R. Yochanan's understanding of R. Yossi (above), that there is an issur almana as well, of course there is a chalala result. The question is according to R. Shimon. His point is that even if there is no transgression at all, the FACT that she is an almana still holds. The problem includes a secondary question about chalalut - does it derive from the fact of a kohen-psul relation, or from an actual commission of a kohen-transgression? (Remember the similar question concerning mamzerut...?)
c. The gemara (Yevamot 32a) states that if the first issur is removed, the second comes into effect automatically. For instance, suppose Reuven marries Leah, the sister of Rachel who is already married to Shimon, Reuven's brother. Since Rachel was already eishet ach vis-a-vis Reuven, the additional issur of achot isha does not come into effect. Now Shimon dies without children. The issur of eishet ach is removed. Should Reuven marry Rachel (and perform yibbum)? The answer is no - she now becomes achot isha, since she is no longer eishet ach.
This would seem to imply that some sort of status as achot isha is in effect all along, as the gemara says, "issur achot isha mitla tali ve-kai" (the prohibition of achot isha is existing in a suspended state). But this is not necessarily true. The cause of the prohibition of achot isha is itself continuously in existence. The prohibition is not the result of the marriage, but of the familial relationship, which exists today as much as on the day of the marriage. Hence, there is a new cause of prohibition at the time of Shimon's death. Before he died, it is possible that she was not considered achot isha at all. She only becomes achot isha at the time of death.
5. The Raavad. Our gemara discusses the case of neveila and Yom Kippur, without stating which came first. If the animal died before Yom Kippur, then Yom Kippur "eino chal" on neveila, hence no karet. But suppose the animal died on Yom Kippur. Why then is there no karet? Rashi asked this question and introduced the prohibition of "ever min hachai" to ensure that there always be a prior issur to Yom Kippur. The Raavad as quoted by the Ritva, advanced a radical theory. Neveila is a priori to Yom Kippur because before Yom Kippur there were other neveilot in the world. We don't examine the piece of meat, but the individual person - he is commanded not to eat neveila before he is commanded not to eat on Yom Kippur.
It is obvious that what the Raavad is saying is that we should examine the chalot of the issur relative to the "gavra," to the person obligate by the mitzva, and not to the "cheftza," to the object. This is based on a case in Yevamot (33a). If a minor came of age on Shabbat, the gemara says that both the issur of Shabbat and another issur is simultaneous. The Ritva, however, rejects the opinion of the Raavad. His basic argument is that the Raavad's opinion allows for the suspension of an existing issur in favor of another one. For instance, from the beginning of Yom Kippur, all food is prohibited; yet, if it becomes neveila during Yom Kippur, it will be neveila and no longer prohibited as Yom Kippur. This, the Ritva argues, is much more than the non-chalot of an issur. Logically, the Ritva argues, "ein issur chal al issur" is a law applying to the cheftza - an object cannot be prohibited twice. Hence, the priority of issur should depend on the particular object. The case of the minor on Shabbat does not contradict this understanding. The discussion there is the prohibition of doing melakha on Shabbat and the concurrent one of a non-kohen performing an avoda in the Beit HaMikdash. Until he is thirteen, neither action (in this case, the action is the cheftza) is prohibited. Hence, the two objects are prohibited simultaneously. But the fact that ANOTHER piece of neveila is prohibited is irrelevant to the chalot of Yom Kippur prohibitions ON THIS piece of meat.
The Raavad apparently views the principle of ein issur chal al issur as defining the relationship of mitzvot to the person. One cannot be prohibited twice from doing the same thing. If the principle applies only to the punishment, but not to the prohibition per se, we can redefine this by saying that one is not punished twice for one activity. The Ritva is arguing that it is a principle defining the actual chalot of the status of issur on an object (or an action). You cannot paint a green object green; you cannot prohibit a prohibited object.
The Ritva asks the following question on the Raavad. If Yom Kippur falls on Shabbat, the gemara says one is chayav twice, since the two prohibitions are simultaneous. According to the Raavad, why not say that Shabbat in general precedes Yom Kippur, so he should be chayav only for Shabbat? The Ritva is comparing many pieces of neveila to many instances of Shabbat. How would the Raavad answer this question?
Next week: Psulei kehuna
1. 77a: "Tanu Rabbanan: Eizo he challala... min psulei kehuna."
2. 77b: "Amar lei Rav Pappa li Abaye..." until 78a "... derekh lekuchin asra Torah."
There are two sugyot here. One is the definition of challala (77a and 77b); the second is which acts are prohibited (78a).
The gemara refers a number of times to kohen gadol - almana. It is necessary to pay attention to whether this is an example for ALL issurei kehuna or is a special halakha of kohen gadol.
1. Rambam, Hilkhot Issurei Bia 17, 1-5; 15,2; 19, 1-2.
2. Ritva 78a s.v. "Rava," s.v. "ve-yesh."