Shiur #5: Masekhet Ketubot 3b: "Ve-lidrosh Lehu De-oness Shari"

  • Rav Yair Kahn

 

            The opening mishna of the masekhet establishes that a betula is married on Wednesday.  The Gemara, however, cites a berayta that "mi-sakana va-eilakh," ever since the period of "danger" set in, the custom developed to marry on Tuesday night, without any objection on the rabbis' part.  The Gemara concludes that the berayta refers to the decree issued against the Jewish community that every betula that marries on Wednesday must first sleep with the Roman governor before the wedding.  The Gemara then questions this reading in light of the berayta's description of the situation as "sakana" - danger, rather than "oness" - rape.  The answer given by the Gemara is that this situation did, indeed, give rise to a life-threatening risk, as particularly modest women preferred to sacrifice their lives rather than be defiled at the hands of the governor.  Then the Gemara asks: "ve-lidrosh lehu de-oness shari" - why don't the rabbis publicize the fact that a married (or betrothed) woman who was raped is not forbidden to her husband?  Knowing this halakha, brides will not endanger their lives for no reason.  This question of the Gemara seems very difficult.  As every young student knows, one is obligated to give his life rather than transgress the three violations of murder, idolatry and adultery.  In our sugya, of course, we deal with adultery.  Therefore, regardless of the fact that they will remain permissible to their husbands, these modest women were indeed correct in refusing to sleep with the governor, even at the threat of death.  What, then, does the Gemara mean when it suggests instructing these women that "oness shari" - forced relations does not forbid them to their husbands?

 

            A similar question arises from the discussion in Masekhet Sanhedrin regarding the halakha requiring martyrdom in these three situations.  The Gemara there notes that under certain circumstances, one must give his life to avoid even other transgressions: "When Rav Dimi came, he said in the name of Rabbi Yochanan: This applies only when there is no governmental decree [i.e. religious persecution]; during times of governmental decrees, however, even for a less stringent mitzva one must be killed rather than transgress.  When Ravin came, he said in the name of Rabbi Yochanan: Even when there is no governmental decree, this applies only in private; in public, however, even for a less stringent mitzva one must give his life rather than transgress."  The Gemara questions this final statement from the story of Ester: "Was not Ester in public?"  Meaning, given that Ester's marriage to Achashverosh was clearly public knowledge, what permitted her to go through with the marriage rather than give her life?  This Gemara prompted the Rishonim to ask, why does the Gemara point specifically to the public nature of Ester's marriage to Achashverosh?  Even if she had been taken by Achashverosh privately, did this not constitute a violation of adultery, according to the Midrash's comment that she was married to Mordekhai, thus requiring her to give her life rather than transgress?  The Rishonim offered several different approaches to resolve this question, most of which answer the question regarding our sugya, as well.  We will note the various answers and discuss the concepts emerging from them relevant to understanding our sugya. 

 

            Before we begin the main part of our discussion, we should note that the Ramban (Milchamot Hashem, 18a in the Rif) explains that the Gemara which raises the question from Ester does not accept the Midrash's claim that Ester was married to Mordekhai.  We see clearly from here that according to the Ramban, relations between an unmarried woman and a gentile do not fall under the formal category of "arayot" (illicit sexual relations) that requires martyrdom.  There is much room for discussion in this regard, particularly concerning the Ramban's claim that relations between a Jewish man and a gentile woman would qualify as arayot.  However, given that this approach does not help explain our sugya, and taking into account the vast amount of work before us in learning our topic, we will not elaborate any further on this comment of the Ramban.

 

            The various Rishonim raised three other approaches that resolve both sugyot.  Tosefot cite Rabbenu Tam as maintaining that relations with a gentile do not fall under the category of arayot - even for a married woman.  They then bring the position of the Rivam, who rejected Rabbenu Tam's view.  He suggested a different answer: although relations with a non-Jew do qualify as arayot, a woman need not surrender her life to avoid them, since a woman remains entirely passive during coerced intercourse and need not perform any positive action.  The Ba'al ha-Ma'or in Sanhedrin (17b in the Rif) answers that a woman is not required to give her life because the rapist forces her into having relations not in order to make her transgress the Torah, but rather to satisfy his desires. 

 

Rabbenu Tam's position marks a far-reaching chiddush regarding the definition of the prohibition of "eishet ish" (a married woman's relations with another man), while the Rivam and Ba'al ha-Ma'or introduce novel ideas with respect to the issue of "yei'hareig ve-al ya'avor."  We will therefore focus on the latter two opinions as part of a discussion concerning the foundation of the requirement for a Jew in certain situations to give his life rather than commit a transgression.

 

            We saw that according to the Ba'al ha-Ma'or, if the threat results from an attempt by the threatening party to satisfy his desires (rather than for the sake of religious persecution), then one commits the given transgression rather than surrender his life.  This position is drawn from Rava's view in Sanhedrin that Ester was not required to give her life, despite the public nature of the violation, because Achashverosh acted for his own personal gratification, rather than out of religious interests.  The Ramban raises many questions against this view of the Ba'al ha-Ma'or, among them the difficulty posed by the Ra'avad: "Based on that which they say, 'One may not be cured with an asheira tree [a tree used for idolatrous worship], we say that there [the intent] is not to make [the patient] transgress; and whenever [the intent] is not to make [the individual] transgress, it resembles [a case of] personal gratification.  Nevertheless, one must be killed rather than transgress.  The same applies to sexual violations."  Meaning, according to the Gemara in Pesachim (25a), a patient suffering from a life-threatening illness may not violate the three severe transgressions in order to save his life.  Yet, in such a situation, no one threatens him with the specific purpose of forcing him to violate the Torah.  This case therefore resembles one where the aggressor threatens the Jew purely for his own personal benefit, and yet halakha requires one to give his life.  Seemingly, this sugya disproves the Ba'al ha-Ma'or's theory.

 

            However, the Ramban's primary argument against the Ba'al ha-Ma'or involves a different point.  Indeed, we find cases where the motive behind the coercion may give rise to an exemption from surrendering one's life, such as in the aforementioned comment of Rava in Sanhedrin.  However, we cannot derive from there an exemption applicable to the three severe transgressions: "These three severe transgressions were not forbidden [in a situation of a risk to one's life] because of kiddush Hashem [the sanctity of God's Name]; therefore, even though he does not intend to make him transgress, it is forbidden.  The other transgressions, however, which were forbidden [under certain circumstances even under the threat of death] from [the verse,] 've-nikdashti' ['I shall be sanctified… '], were permitted [in situations where the aggressor acts purely] for his personal benefit, as this does not involve kiddush Hashem."  According to the Ramban, the halakha of "yei'hareig ve-al ya'avor" for standard transgressions (besides the three cardinal sins) in public (or in times of religious oppression) evolves from the mitzva to sanctify God's Name (kiddush Hashem).  Therefore, if the motive behind the coercion involves personal benefit, then this is not a situation of kiddush Hashem, and hence the obligation of "yei'hareig ve-al ya'avor" does not apply.  Regarding the three severe transgressions, however, it is their inherent severity, rather than the interest of kiddush Hashem, that generates the obligation of "yei'hareig ve-al ya'avor."  Simply put, these sins are too severe to be overridden by "piku'ach nefesh" (the interest of human life).  Therefore, the Ramban claims, when it comes to these sins we cannot take the underlying motive into account; it makes no difference whether the coercion is propelled by religious or personal interests.  As stated, this indeed appears to emerge clearly from the sugya in Pesachim, which forbids saving a patient's life by violating the three cardinal sins.

 

            We find this same notion in the Chiddushei ha-Ran (in Sanhedrin 61b), citing Rabbenu David, a student of the Ramban.  The discussion relates to the question of punishing a person who violates a given prohibition in a life-threatening situation where halakha requires him to surrender his life: "Rabbi David z"l distinguishes between these three sins and other mitzvot.  Regarding other mitzvot, it [the obligation to give one's life] is due to the positive commandment of 've-nikdashti.'  Therefore, we do not administer the death penalty for [a violation of this kind committed] in public or at a time of oppression.  However, regarding these three transgressions, which evolve from their inherent severity, I would argue that even [if one commits them] under coercion, the court puts him to death if he had been warned."

 

            Parenthetically, we should note that this perspective on the inherent severity of the three cardinal sins, which precludes their dismissal in the interest of piku'ach nefesh, may be formulated in one of two ways.  One could argue that the general exemption of piku'ach nefesh does not apply when dealing with these three transgressions.  This is the implication of Rashi in his comments in Sanhedrin (74a, s.v. "ma rotzei'ach"): "When the Torah said that one must violate the mitzvot in the interest of 'va-chai ba-hem' [that one live, rather than die, as a result of mitzva performance] - this is because a Jewish soul is precious to Him.  Here, regarding a murderer, since in any event we have a loss of life, why should it be permitted to transgress?  Who knows if his soul is dearer to his Creator than his friend's soul?"  In this light we should also understand the view of Rabbenu David, that the court punishes one who transgresses one of these three sins rather than surrender his life.  (See Reb Chayim Brisker - Hilkhot Yesodei ha-Torah, chapter 5).  Alternatively, one could view the severity of these sins and the piku'ach nefesh consideration as equal to one another: just as the sin cannot be overridden by piku'ach nefesh, so can we not allow the sin to override piku'ach nefesh.  This would explain the position of the Rivam, that even regarding these three transgressions one need not surrender his life if the violation demands no positive action on his part.  The Rivam maintains that the two considerations (the severity of the sin and piku'ach nefesh) oppose each other with equal force.  The halakha therefore requires "shev ve-al ta'aseh" - that the individual do nothing.  If he is forced to transgress one of the three cardinal sins with a positive action, he must remain still and refuse to actively commit the violation, and he will naturally be killed.  If, however, he is called upon to transgress passively, then he should remain still and not resist, and thus naturally he will transgress rather than surrender his life.  However, if the piku'ach nefesh exemption never applies at all in the context of these three sins, then even in a situation of passive violation the individual must resist, even if he will lose his life as a result.

 

            Let us now return to the position of the Ba'al ha-Ma'or, that the exemption of "hana'at atzman" (when personal, rather than religious, interests motivate the coercion) applies even to the three severe transgressions.  As stated, the sugya in Pesachim, which forbids one to violate one of the three cardinal sins even to cure himself from a life-threatening illness, appears to contradict this view.  Logically, too, this position seems very difficult, since the halakha of "yei'hareig ve-al ya'avor" regarding these three sins relates to their severity; the motive behind the coercion should thus have no effect on the application of this requirement.  In light of these two problems, perhaps we can suggest that the Ba'al ha-Ma'or distinguished between the sugya in Pesachim and that in Sanhedrin.  The sugya in Pesachim deals with the prohibition against violating the three severe transgression for medical purposes - a prohibition which, even according to the Ba'al ha-Ma'or, emanates from the severity of these sins.  Therefore, even the Ba'al ha-Ma'or agrees that we cannot distinguish between coercion due to religious persecution and hana'at atzman.  But all this applies only to an individual who decides himself to transgress one of these sins in order to overcome a deadly illness.

 

            The sugya in Sanhedrin, by contrast, deals with a person who forces a Jew at the threat of death to violate one of the mitzvot.  In a previous shiur (#4), we suggested that when an external factor compels an individual to commit an act, we cannot attribute the act to that individual.  Although mechanically his body did, indeed, commit the act, the person as the bearer of free choice did not perform the given action with his own will.  Therefore, we do not cast upon an individual responsibility for a sin committed by the coercive force of an external party.  On this basis, we explained that according to the Rambam, if someone decides on his own to violate one of the three cardinal sins to save himself from a deadly illness, he is punished despite the threat to life that prompted his violation; as he acted independently, by force of his own willed decision, we attribute to him the forbidden act.  If, however, he committed the same transgression against his will, as a result of an external, coercive force, he is not liable for punishment, since halakhically, he has not performed an aveira act.  Hence, we cannot say in such a situation that it is the severity of the transgression that generates the obligation of "yei'hareig ve-al ya'avor", since halakha does not consider the individual as having committed an aveira act at all. 

 

We may therefore explain that according to the Ba'al ha-Ma'or, in the case discussed in Sanhedrin it is the obligation of kiddush Hashem that generates the requirement to surrender one's life.  Kiddush Hashem applies when a Jew is called upon to make the supreme sacrifice in order to demonstrate his loyalty to the Almighty and his commitment to His Torah.  Accordingly, we can readily understand why the requirement of "yei'hareig ve-al ya'avor" applies equally to all mitzvot in public or times of religious persecution.  These situations create a need to demonstrate one's loyalty to Torah and mitzvot.  The same is true when a Jew is threatened to transgress one of the three severe transgressions.  Although we cannot attribute such an action to the individual under coercion, the sheer severity of these violations, which requires the utmost sacrifice to avoid them, turns his reaction to the threat into a barometer measuring his commitment to God's Torah.  If he yields to the threat, then his human life is more precious to him then his religious commitment.  When, however, we deal with other transgressions which halakha permits in situations of deadly illness, no chillul Hashem results from the patient's violation due to the risk to life.  In fact, the Torah obligates him to transgress rather than give his life; hence, his willingness to violate the given prohibition constitutes not a capitulation to a threatening party, but rather the fulfillment of a halakha.

 

            Accordingly, even when an external force compels the individual to violate one of the three cardinal sins, he must give his life in order to sanctify God's Name.  But this applies only when the motive behind the coercion is religious by nature - specific intent to force the Jew to violate the Torah.  If the aggressor acts for personal gratification, kiddush Hashem does not apply, and the individual may therefore violate the transgression rather than surrender his life.  We have thus resolved the Ramban's objections to the Ba'al ha-Ma'or's position.

 

            However, the Ramban poses an additional question against the Ba'al ha-Ma'or, based on a Gemara in Masekhet Kiddushin (40a).  The Gemara there tells that a woman attempted to lure Rav Kahana to sin.  To avoid her advances, Rav Kahana jumped off a roof.  The Ramban tries proving from here that "yei'hareig ve-al ya'avor" applies to all cases of sexual prohibitions, even when the motive involves personal gratification rather than religious coercion.  The Ramban adds: "One cannot claim that [that Rav Kahana acted] beyond the letter of the law, for clearly he would not have allowed himself to be killed if halakha did not demand it… We never find a measure of piety to avoid desecrating Shabbat for a dangerously-ill patient; rather, whoever is quick [to violate the Shabbat to help him] is deserving of praise, whereas one who withholds himself is guilty to pay with his life."

 

            We can very easily resolve this question by claiming that Rav Kahana indeed acted beyond that which the letter of the law required.  Therefore, although the woman intended for personal gratification, and thus Rav Kahana bore no responsibility to give his life, nevertheless, he jumped from the roof to avoid the transgression as a measure of piety.  However, the Ramban is undoubtedly correct that a dangerously-ill patient may not refrain from desecrating Shabbat to save his life, and this involves no measure of piety whatsoever.  Nevertheless, we can claim that sacrificing one's life even when halakha does not require it constitutes a fulfillment of the mitzva of kiddush Hashem.  Therefore, when someone threatens a Jew to force him to commit a sin, even if the specific circumstance does not obligate the Jew to give his life, nevertheless, the firm resistance to the threat, and the preparedness to pay with one's life, constitutes a kiddush Shem Shamayim.  Hence, if a person motivated by personal gratification forces a Jew to violate one of the three severe transgressions, martyrdom is not demanded, however that path, if chosen, involves a kiyum (fulfillment) of kiddush Hashem. But this holds true only when there is a person forcing the Jew to violate the Torah.  However, in the case of a patient, who has no one forcing him to commit a transgression, who refrains from violating the Shabbat in order to save his life, there is no kiddush Hashem at all; to the contrary, such a refusal to commit the sin, itself constitutes a transgression.  For this reason, no distinction exists between public and private domains when it comes to saving an ill patient through a violation.  Hence, no measure of piety is involved in refraining from committing a violation to save a critically ill patient on Shabbat, as this would not result in any kiddush Hashem at all.

 

            Accordingly, the sugya in Sanhedrin differs from the sugya in Pesachim in both directions.  We saw that according to the Ba'al ha-Ma'or, the obligation to surrender one's life in Pesachim emanates from the severity of these sins, whereas in Sanhedrin, where an external force pressures the Jew, no aveira act would be committed at all.  Hence, there the obligation evolves from the mitzva of kiddush Hashem.  Conversely, the concept of kiddush Hashem applies only in Sanhedrin; in Pesachim, where we deal with a case of an ill patient, kiddush Hashem plays no role whatsoever.

 

Sources for next week's shiur:

 

1.     Ketubot 3b: "ve-i-ba'it eima ma-chamat oness… shiv'at yemei aveilut" [end of 4b].

2.     Mo'ed Katan 14b: "Avel eino noheig… ve-dachi aseih de-rabbim," Tosefot s.v. "aseih de-yachid"; Berakhot 16b: "Rachatz layla… Rabbanan," Rif, 9b, "Mai ta'ama aninut…" [at least until "ela mi-divrei sofrim]; Rambam, Sefer ha-Mitzvot - mitzvat aseih 37; Rambam, Hilkhot Avel 1:1-2, 5:1.

3.     Ramban - Ketubot, s.v. "makhnisin"; Rosh, 5.

4.     Tosefot - Ketubot 4a, s.v. "bo'el"; Rashba - 4b, s.v. "mai kiluta"; Ritva - 3b, s.v. "makhnisin"; Rambam, Hilkhot Avel 11:7-8; Ramban - Torat ha-Adam, pp.212-213, "u-le-inyan she'ilta… be-khulam," p. 73, "ve-ha-Rav … Rabbenu ha-gadol z"l."

 

Questions:

 

1.     Does aveilut constitute a Torah obligation?  If so, from where is it derived?

2.     How can the days of wedding celebration override aveilut if the latter is a Torah obligation?

3.     When do the prohibitions of aveilut set in?  Which prohibitions take effect already during the period of aninut?

4.     Did it mark a leniency on Chazal's part when they permitted initial relations between bride and groom before the burial?

 

 Translated by David Silverberg