ERCHIN 15 (28 Sivan) - dedicated to the memory of Hagaon Rav Yisroel Zev (ben Rav Avrohom Tzvi) Gustman, ZT'L, Rosh Yeshiva of Yeshivas Netzach Yisrael-Ramailes (in Vilna, Brooklyn, and then Yerushalayim), author of Kuntresei Shi'urim, and renowned Dayan in pre-war and post-war Vilna, in honor of his Yahrzeit (28 Sivan). Dedicated by Talmidim who merited to study under him in Yerushalayim: Harav Eliezer Stern of Brooklyn NY, Rav Avraham Feldman, Rav Mordecai Kornfeld, Yechiel Wachtel, Michoel Starr and Dr. Yehoshua Daniel of Yerushalayim
1) PROOF FOR VARYING AMOUNTS OF "BOSHES" AND "PEGAM" IN CASES OF "ONES"
QUESTION: The Mishnah (14b) teaches that the monetary fines of Ones and Mefateh apply equally to one whose victim is the most dignified daughter of Kohanim (when the act causes much greater shame) and to one whose victim is the lowliest daughter of Yisrael. In contrast, the amount of money that the offender must pay as compensation for the Boshes (embarrassment) and Pegam (physical blemish) that he caused to the woman is based on her stature.
Rav Ze'ira suggests that this is logical. It does not make sense that when two men rape a woman, the first one "she'Lo k'Darkah" and the second one "k'Darkah," that both should pay the exact same penalty. Obviously, their punishments must be vary in accordance with the degree of Boshes and Pegam that each one caused to the woman.
RASHI (DH Ilu) explains that the Rav Ze'ira's logical proof is based on a comparison of the compensation paid to two separate women. The first woman was raped by one man she'Lo k'Darkah and then by another man k'Darkah. The second woman was raped k'Darkah (and was a Besulah before the rape). Rav Ze'ira is pointing out that it is not logical that the second assailant of the first woman should be obligated to pay the same as the first assailant of the second woman.
Why does Rashi not explain Rav Ze'ira's proof in its straightforward sense? Rav Ze'ira seems to be discussing a case of only one woman who was raped twice, the first time she'Lo k'Darkah and the second time k'Darkah. Rav Ze'ira is saying that it is not logical that the second assailant -- who raped a woman who was already defiled (by the first assailant) -- should be obligated to pay the same as the first one, who did more damage by defiling the woman.
(a) The SHITAH MEKUBETZES (#1) quotes the ROSH who explains the words of Rashi. Rashi writes that Rav Ze'ira is referring to two separate women, because if he is referring to only one woman, then it indeed is logical to penalize the two men equally. The first assailant is guilty of being the first one to defile the woman. The second assailant, even though he raped an already defiled woman, is guilty of being the one to make the woman lose her Besulim. Therefore, Rashi explains that Rav Ze'ira is referring to a case which involves two different women. In that case, the first assailant of the second woman did more damage (by both defiling her and causing her to lose her Besulim) than the second assailant of the first woman (who merely caused the loss of her Besulim).
(b) TOSFOS (DH Ilu) explains that Rashi understands that Rav Ze'ira's proof involves two separate women because Rashi maintains that there is no penalty for one who rapes she'Lo k'Darkah, since it does not cause the loss of the Besulim. The penalty applies only to one who makes a woman a Be'ulah. (Tosfos disagrees with Rashi, based on the Gemara in Kidushin (9b), and he maintains that there is a penalty for one who rapes a woman she'Lo k'Darkah.)
2) THE SPLITTING OF "YAM SUF"
QUESTION: The Gemara quotes Rabah bar Mari who relates that the Jewish people demonstrated little faith after they crossed the dry land in the middle of the Yam Suf. They assumed that just as they were saved from drowning in the Yam Suf, the Egyptians also survived.
Why did the Jewish people not realize that, after such a miraculous event occurred to them, the wicked Egyptians could not merit such a similar miracle?
ANSWER: TOSFOS (DH k'Shem) explains that the Jewish people did not cross the Yam Suf and emerge on the other side (entering the Yam Suf from the Egyptian side and exiting on the side of the Sinai Peninsula). Rather, when they arrived at the sea -- at the northern tip of the Gulf of Suez (see Graphics) -- they were surrounded on three sides by the Egyptians and on the fourth side by the sea. Hash-m opened the sea, creating a path for them to bypass the Egyptians and emerge on the same bank of the Yam Suf, but more to the south and east of where they entered the sea. The Jews were concerned that the Egyptians who did not enter the sea would follow them on land along the bank of the Yam Suf and eventually reach them.
3) THE SECOND SIN OF THE "SLAV"
QUESTION: The Beraisa relates that the Jewish people complained twice with regard to the Slav (quails). The first time was when the Jewish people reminisced about all of the meat that they had eaten in Mitzrayim and complained that they no longer had any meat to eat in the Midbar (Shemos 16:3). Hash-m responded and sent them Slav. They complained a second time that they wanted Slav (Bamidbar 11:4), and Hash-m granted them Slav for thirty days.
Why did they complain that they wanted Slav a second time, when they already had Slav from Hash-m's response to their first complaint?
(a) RASHI (DH b'Slav Rishon) explains that even though Slav was already provided, the Jewish people wanted even more.
(b) TOSFOS (DH His'avu) explains that the original Slav had ceased coming, and therefore the people demanded Slav again.
(c) In his first answer, the RAMBAN (Shemos 16:12) suggests that perhaps the Slav was not provided for everyone the first time, but only for the Tzadikim (in the words of the Ramban, for "Gedolim and Chasidim").
(d) In his second answer, the Ramban suggests that perhaps the Slav (from Hash-m's response to the first complaint) came only occasionally and not on a regular basis.
4) THE SEVERITY OF LASHON HA'RA
QUESTION: The Gemara quotes Tana d'Vei Rebbi Yishmael who teaches that one who speaks Lashon ha'Ra is considered to have sinned so severely that he has transgressed the three cardinal sins of Avodah Zarah, Giluy Arayos, and Shefichus Damim.
How is it possible that any sin can be considered more severe than these three sins, for which one is obligated to give his life rather than transgress? (RABEINU YONAH in SHA'AREI TESHUVAH 3:201-209)
ANSWERS: RABEINU YONAH gives five different answers to this question.
(a) Speaking Lashon ha'Ra once is indeed not considered such a terrible sin. However, there is a tendency to speak Lashon ha'Ra regularly, which makes this sin worse than the others.
(b) When one speaks Lashon ha'Ra with regularity, it becomes habitual and part of his nature. One speaks Lashon ha'Ra without even realizing that he is transgressing a severe prohibition, and this makes it extremely difficult to repent.
(c) One does not realize how much harm he causes by speaking Lashon ha'Ra, and, as a result, he fails to have remorse for what he has done and fails to repent.
(d) An essential part of Teshuvah is the requirement to ask for forgiveness from the person or persons whom he has hurt. Fulfilling this requirement when doing Teshuvah for speaking Lashon ha'Ra is virtually impossible, for a number of reasons:
1. A person cannot possibly remember all of the people about whom he has spoken Lashon ha'Ra.
2. One who speaks Lashon ha'Ra often harms people without even knowing what he has done, and some of his victims may be too refined or embarrassed to inform him of what he has done.
3. When one speaks Lashon ha'Ra, his words sometimes stigmatize entire families, including generations yet unborn, for which one cannot possibly do Teshuvah.
4. One who speaks of Lashon ha'Ra tends to speak indiscriminately about all, and sometimes even about great Talmidei Chachamim. Speaking inappropriately about Torah leaders is considered heresy, for which a person loses his share in the World to Come (Sanhedrin 99b).
(e) It is not uncommon for one who speaks Lashon ha'Ra to deride Hash-m Himself with his evil remarks, because his evil habit has become such an inherent part of him.
Rabeinu Yonah says that the combination of all of these reasons render Lashon ha'Ra the worst of all sins.
5) LASHON HA'RA SPOKEN IN FRONT OF THREE PEOPLE
QUESTION: Rabah bar Rav Huna rules that anything spoken in the presence of three people does not constitute Lashon ha'Ra.
Why should the size of one's audience determine whether the derogatory words that he says about another person constitute Lashon ha'Ra? Why should one be permitted to speak Lashon ha'Ra just because three people are present?
(a) TOSFOS (DH Kol) explains that Rabah bar Rav Huna is referring to a person's statement that can be construed in two ways. For example, when one says, "There is always fire in the oven in Reuven's home," this could be understood to mean that Reuven is very hospitable and always has hot food available for guests. On the other hand, it could be understood to mean that Reuven is a glutton, always cooking food for himself. When such a statement is said in front of three people, we assume that it will be publicized (by virtue of having been said in front of three people) and eventually will be heard by the subject. Since the person who made the statement is aware that the subject of his words will hear about what he said, we assume that he did not intend to harm or insult the person about whom the statement was made. An unequivocally degrading statement, on the other hand, always constitutes Lashon ha'Ra and may not be spoken even in front of three people.
(b) RABEINU YONAH (Bava Basra 39a), RASHI (DH d'Mis'amri), and RABEINU GERSHOM (DH Kol) explain that Rabah bar Rav Huna is not referring to a negative statement at all. Rather, he means that one is forbidden to divulge to others any information that one person disseminated if there is reason to assume that the one who made the remark wants it to remain secret. If, however, the remark was originally made in the presence of three people, and the speaker did not stipulate that the information should not be publicized, we may assume that the one who made the remark does not care about whether or not the information is made public, and it may be related to others. The Gemara is not referring to damaging or negative statements.
(c) The RASHBAM (Bava Basra 39a, DH d'Mis'amra) and the RAMBAM (Hilchos De'os 7:5) explain that if a person spoke forbidden words of Lashon ha'Ra in the presence of three people, one of those three people may repeat the statement to others (even though it was forbidden for the first person to tell it initially). The reason why it is permitted for one of the three people to relate the words that were spoken is that since the statement was made in the presence of three people, it can be assumed that it is already public knowledge. Repeating what was said will not give the statement added publicity, and therefore it does not constitute Lashon ha'Ra.
The Rashbam adds that since it may be assumed that the statement is public knowledge, one of the three people who heard the Lashon Ha'Ra may even tell the victim that he was the subject of Lashon ha'Ra.
The CHAFETZ CHAIM lists five conditions that must be fulfilled in order to implement, in practice, the lenient ruling of the Rambam:
1. One may not relate the Lashon ha'Ra to the victim, even when the Lashon ha'Ra was spoken in front of three people. The Rambam disagrees with the Rashbam and rules that it is forbidden to quote the Lashon ha'Ra to the victim of the Lashon ha'Ra.
2. When the original bearer of the Lashon ha'Ra told the listeners not to repeat the story, or if any one of the three is known to be a G-d-fearing person who would not gossip, or if any one of them is a friend of the victim of the Lashon ha'Ra, then we cannot assume that it is public knowledge, and one may not repeat the story.
3. Only one of the original three who heard the story may repeat it.
4. It may be repeated only in the same city where it was originally told.
5. When one repeats the Lashon ha'Ra, he must relate the story with perfect accuracy. One may not change even the slightest detail from the original story.
The Chafetz Chaim concludes that, in practice, it does not seem feasible to rely on the lenient ruling of the Rambam, because it is virtually impossible to fulfill all of the conditions. Moreover, according to the way the other Rishonim learn the Gemara, there is no source to permit Lashon ha'Ra even under these circumstances.