1) CAN A MAN WHO IS A "TEREIFAH" LIVE FOR MORE THAN TWELVE MONTHS?
QUESTION: The Gemara discusses the source for the law that a Nochri is not allowed to bring a Korban that is missing a limb (Mechusar Ever). The Gemara cites the verse, "umi'Kol ha'Chai" -- "And from all living things" (Bereishis 6:19), in which Hash-m commands Noach that the animals that he will offer in the future as Korbanos to Hash-m must be fully alive -- that is, all of the limbs must be intact. The Gemara then asks that perhaps this verse excludes a Tereifah and not a Mechusar Ever. The Gemara concludes that the word, "Itach" -- "with you," in the same verse teaches that the animals that Noach was to take with him into the Teivah, and that he would eventually offer as Korbanos, had to be like Noach, meaning that they could not be a Tereifah. The Gemara then asks for the source that Noach himself was not a Tereifah.
TOSFOS (DH Dilma) finds the Gemara's question difficult to understand. How can the Gemara even entertain the possibility that Noach was a Tereifah? The Torah explicitly relates that he lived an additional 300 years after the Mabul. A Tereifah, by definition, has a mortal defect which will cause the bearer's death within twelve months!
(a) TOSFOS answers that the Gemara is suggesting that it is possible that Noach indeed was very ill for all of those years after the Mabul. Tosfos explains that the question of the Gemara, therefore, follows the opinion cited in the Gemara that a Tereifah can live for more than twelve months.
(b) Tosfos quotes RABEINU TAM who says that there is a difference between a man who is a Tereifah and an animal that is a Tereifah. A person's fate is, to some degree, subject to his unique Mazal. Rabeinu Tam apparently means that a person's Mazal may keep him alive for longer than twelve months even if he is a Tereifah.
Many Rishonim disagree with Rabeinu Tam's assertion. The RAMBAM (Hilchos Gerushin 13:16) discusses a case in which a man fell into the sea, and a net was thrown in after him. The net came up with only a limb of the man, and it was a limb without which one cannot live. The Rambam rules that even though the rest of the body was not retrieved, and no one clearly saw the man die, his wife may remarry because it may be assumed that the man died. The MAGID MISHNEH quotes the RAMBAN and RASHBA who rule that the man's wife may remarry only after twelve months pass after the limb was retrieved. The loss of the limb rendered the man a Tereifah, and a Tereifah cannot live more than twelve months. His wife, therefore, must wait twelve months in order to be certain that her husband has died, and only then may she remarry.
The KESEF MISHNEH asks that the Magid Mishneh's ruling is not correct, because a person who is a Tereifah can live more than twelve months. The Kesef Mishneh's source is apparently the opinion of Rabeinu Tam (which is also mentioned by Tosfos in Chulin 42b, DH v'Ha). (This answers the question of the MAGIHAH D'AMSTERDAM, who questions the source of the Kesef Mishneh's rejection of the Magid Mishneh.)
The BIRKAS HA'ZEVACH here says that Rabeinu Tam does not mean that a person who is a Tereifah always will live longer than twelve months because of his Mazal. Tosfos in Chulin quotes Rabeinu Tam, who says that a person lives longer because of his Mazal only in a limited context. Rabeinu Tam is discussing one particular case of a Tereifah in the area of the skull, and he says that an animal with this condition is a Tereifah while a person with the same condition is not considered a Tereifah, because of his Mazal. The Birkas ha'Zevach says that this is the explanation of Rabeinu Tam in the Gemara here as well. When the Gemara suggests that Noach was a Tereifah even though he lived for another 300 years, the Gemara means that perhaps he had the type of condition that renders an animal a Tereifah but not a person. Accordingly, the Gemara asks, we cannot learn from the verse of "Itach" that a Nochri is not allowed to offer as a Korban an animal that is a Tereifah. Since Noach could have had the type of condition that would have been fatal for an animal (but not for a person, due to his Mazal), there is no proof that Noach was commanded not to bring an animal that is a Tereifah.
The Birkas ha'Zevach continues (in his second comment on Tosfos) and says that based on this understanding of the words Rabeinu Tam, the Kesef Mishneh's question on the Magid Mishneh is resolved. The Rashba and Ramban are discussing a type of Tereifah that is a Tereifah both in an animal and in a person. Rabeinu Tam differentiates only between certain types of Tereifos, as specified by Tosfos in Chulin. Even according to Rabeinu Tam, people die from most types of Tereifos, even though they have Mazal. (The Birkas ha'Zevach even suggests that it was a mistaken student who wrote this comment, as the Kesef Mishneh would never have suggested that a person who is a full-fledged Tereifah would live twelve months due to his Mazal.)
However, the PANIM ME'IROS explains that the Kesef Mishneh was asking a different question on the Magid Mishneh. Once Rabeinu Tam expresses the view that it is possible that one type of Tereifah can be fatal for an animal but not for a person (because the person has Mazal), a doubt arises about other states of Tereifah; perhaps there are other states of Tereifah that also are not fatal for a person. Therefore, the Kesef Mishneh asks that it is not reasonable to make a general rule that the loss of a limb causes a person to die within twelve months, according to the opinion of Rabeinu Tam. (Y. MONTROSE)
2) HALACHAH: MAKING A COVER FOR A SEFER TORAH OUT OF RECYCLED CLOTHES
OPINIONS: The Gemara quotes Rebbi Elazar ban Shamua who says that just as the Mizbe'ach may not be made from anything that was used by an ordinary person, the wood used on the Mizbe'ach as fuel may not have been used by an ordinary person.
The Gemara implies that items used for holy purposes may not come from items that were used for ordinary purposes. Accordingly, it seems that Tashmishei Kedushah, such as the cover of a Sefer Torah, may not be made from items that were used for ordinary purposes. Is this the Halachah?
(a) The REMA (OC 147:1) quotes the opinion of the AGUDAH and others who rule that the cover of a Sefer Torah may not be made from old material which was used by an ordinary person. The Agudah (Menachos, ch. 3) quotes the Gemara here as the source for this Halachah. (See YAD BINYAMIN who is perplexed by the fact that none of the commentators mentions that Rashi (DH d'Maska) and others understand that the Gemara means only that one may not make the holy Mizbe'ach out of an actual Mizbe'ach that was used for an ordinary person, and not that one may not turn an ordinary utensil into a Mizbe'ach.) The MAGEN AVRAHAM quotes an additional source for this Halachah. The Tosefta in Megilah (2:10) says that "vessels made originally for the use of an ordinary person should not be used for a holy purpose. Stones and beams which were hewn and cut for a person should not be placed in the Har ha'Bayis."
(b) However, the Magen Avraham notes that people are lenient and do make Tashmishei Kedushah out of old things. Why is this permitted? The Magen Avraham answers first that it is possible that these Halachos apply only to the Beis ha'Mikdash and things used for it, but not for regular Tashmishei Kedushah. In his second answer, the Magen Avraham writes that these sources prohibit using these things only without changing their shape and identity. There is no source in the Gemara or Tosefta that prohibits using old things for Tashmishei Kedushah when one changes them and makes them into a different entity.
The Magen Avraham proves that altering an old item permits its use for Tashmishei Kedushah. Moshe Rabeinu made the Kiyor from the mirrors which the women of Bnei Yisrael used to help beautify themselves (see Shemos 38:8). It is evident from there that changing the mirrors into a new entity permitted their use for a holy vessel.
This logic is also proposed by the CHAVOS YA'IR (#161). However, he argues that this is not the logic that permitted the mirrors to be used for the Kiyor. Rather, this logic was the reason why Moshe Rabeinu accepted the jewelry captured from the women of Midyan (see Bamidbar 31:50), including even the Kumaz (see RASHI there, DH Kumaz), and made them into Klei Shares. Since they were changed into new entities, it did not matter that they had been previously used for jewelry. However, the mirrors that were made into the Kiyor were not changed significantly from their previous form. This is why Moshe Rabeinu did not want to accept them until Hash-m told him explicitly that they were permitted (see Rashi to Shemos 31:50).
However, the CHASAM SOFER (OC 147:1) points out that both of these explanations conflict with the understanding of the RAMBAN (Shemos 31:50). The Ramban explicitly states that the reason why the Kumaz of the women of Midyan was accepted was that it was Batel b'Rov, since it was mixed with all of the other metals from which the Klei Shares were made. Moshe Rabeinu did not want to accept the mirrors for the Kiyor, since they were to be the sole item from which the Kiyor would be formed. Moreover, Rashi and the Ramban state explicitly that the reason why Moshe Rabeinu did not want to accept the mirrors was that they had been used for an activity that involved the Yetzer ha'Ra.
This explanation seems to contradict the Magen Avraham's understanding of why Moshe Rabeinu accepted the mirrors. However, the fact that the Rishonim do not explain that Moshe Rabeinu did not want to use these items because they had been used for an ordinary person indicates that they agree that, in general, these things may be used for Tashmishei Kedushah.
HALACHAH: The MISHNEH BERURAH (OC 147:13) quotes the ruling of the Magen Avraham and Chavos Ya'ir, that people change ordinary items into items that are used for Tashmishei Kedushah. He says that even though there are opinions that are stringent, the custom is to be lenient. (See also Mishnah Berurah OC 147:14.) (Y. MONTROSE)