KIDUSHIN 36 (15 Cheshvan) - sponsored by Rabbi and Mrs. Mordecai Kornfeld in celebration of tonight's marriage of their daughter, Malkie, to Rav Shmuel Moshe Peters. May they be Boneh a Bayis Ne'eman b'Yisrael and raise children and grandchildren in the way of Torah and Yir'as Shamayim!
1) A PARTIAL APPLICATION OF A "GEZEIRAH SHAVAH"
QUESTION: Isi (35b) rules that women are exempt from the prohibition of "Lo Yikrechu" (making a bald spot on one's head out of anguish over someone's death). According to Abaye, Isi's source is the Gezeirah Shavah of "Karchah Karchah" which compares a Yisrael's prohibition of Karchah to a Kohen's prohibition of Karchah (which does not apply to women, as derived from Vayikra 21:1). According to Rava, Isi's source is the Gezeirah Shavah of "Bein Eineichem" which compares the prohibition of Karchah to the Mitzvah of Tefilin (from which women are exempt, as the Gemara derives on 34a).
The Gemara asks why Abaye does not accept Rava's Gezeirah Shavah which compares Karchah to Tefilin. The Gemara answers that Abaye does not accept Rava's Gezeirah Shavah because it is already used to derive a Halachah of Tefilin from the prohibition of Karchah (specifically, that Tefilin must be placed on the upper forehead and not between the eyes, just as the prohibition of Karchah applies to the upper forehead and not between the eyes).
The Gemara implies that Abaye accepts the Gezeirah Shavah of Rava ("Bein Eineichem"), but since he uses it to derive a different Halachah from the Gezeirah Shavah he is unable to use it to derive that women are exempt from the Isur of Karchah just as they are exempt from Tefilin.
Abaye's reasoning is problematic. The Gemara (Zevachim 48a and elsewhere) teaches that "Ein Gezeirah Shavah l'Mechetzah" -- there is no "partial" Gezeirah Shavah. A Gezeirah Shavah must compare the two respective categories of Halachah to each other for all laws and not merely for some. A Gezeirah Shavah must be applied bi-directionally; it cannot be used to teach that laws of one category apply to a second category without teaching that laws of the second category apply to the first. Accordingly, even if Abaye learns the laws of Tefilin from Karchah through the Gezeirah Shavah of "Bein Eineichem," he still should learn the laws of Karchah from Tefilin through the same Gezeirah Shavah. (TOSFOS DH Tefilin)
(a) TOSFOS and the TOSFOS HA'ROSH answer that Abaye maintains that this Gezeirah Shavah was transmitted only with regard to the place on the head where the Tefilin must be worn.
Tosfos' answer is based on the rule that one must have a tradition (Kabalah) from his teachers in order to expound a Gezeirah Shavah. One may not formulate a Gezeirah Shavah on his own (Pesachim 66a). A corollary of this rule is that the Kabalah itself (or an inference from a verse) may limit the Gezeirah Shavah to certain types of laws (see, for example, Bava Kama 54b, "l'Hanachah Hikashtiv..."; see also Bechoros 53b and Zevachim 22a).
(b) The RAMBAN and RITVA explain that the principle of "Ein Gezeirah Shavah l'Mechetzah" does not apply in all cases. When a Gezeirah Shavah contradicts a law derived through a Hekesh, the Hekesh reveals that the Gezeirah Shavah is limited and is to be used only as a partial Gezeirah Shavah (unless there is no other law derived through the Gezeirah Shavah except the law which contradicts the Hekesh, in which case the Gezeirah Shavah overrides the Hekdesh). TOSFOS gives a similar explanation in Yoma (60a, DH Chad) and in Zevachim (48a, DH d'Chulei Alma).
(c) The SHITAH LO NODA L'MI suggests that according to Abaye, "Ein Gezeirah Shavah l'Mechetzah" applies only to laws written explicitly in the verses which contain the words of the Gezeirah Shavah. The Halachah that women are exempt from Tefilin is not written explicitly in the verse but is derived through the Hekesh of Tefilin with Talmud Torah.
(d) The RA'AVAD (cited by the Shitah Lo Noda l'Mi) answers that the source for the Halachah that the prohibition of Karchah applies only when done on the upper part of the head (from which the Halachah that Tefilin are worn on the upper part of the head is derived) is a verse written with regard to Kohanim. Therefore, it is more logical for Abaye to assume that a woman's exemption from the prohibition of Karchah is also derived from a verse written with regard to Kohanim ("Karchah Karchah") rather than from a verse written with regard to Tefilin ("Bein Eineichem").
How does the Ra'avad understand the words the Gemara uses to explain why Abaye rejects Rava's Gezeirah Shavah? The Gemara says that Abaye rejects Rava's Gezeirah Shavah because "[the laws of] Tefilin themselves are derived from the verses of Korchah [via a Gezeirah Shavah]." What does this have to do with preferring a Gezeirah Shavah that involves Kohanim?
The Ra'avad means that the Gezeirah Shavah of "Bein Eineichem" cannot be used to teach that Tefilin are worn on the upper forehead unless the Gezeirah Shavah of "Karchah Karchah" is first used to teach that the prohibition of Karchah applies to the upper forehead. Since it is inevitable that the Gezeirah Shavah of "Karchah Karchah" from Kohanim must be used, Abaye is faced with a choice between two Gezeiros Shavah ("Bein Eineichem" or "Karchah Karchah") to teach that women are exempt from the prohibition of Karchah. He prefers the Gezeirah Shavah from Kohanim ("Karchah Karchah") which is the source for other Halachos which apply both to Karchah and to Tefilin (for example, that they are on the upper forehead).
2) AGADAH: WHEN ARE THE JEWISH PEOPLE CALLED "BANIM" OF HASH-M?
QUESTION: Rebbi Yehudah and Rebbi Meir disagree about whether the Jewish people are called "Banim" (children) of Hash-m even when they sin. Rebbi Yehudah learns from the verse, "You are children to Hash-m, your G-d" (Devarim 14:1), that only when the Jewish people follow the will of Hash-m are they called His "Banim." Rebbi Meir maintains that the Jewish people are always called Hash-m's "Banim," even when they sin, and he cites a number of verses to prove this.
The RASHBA (Teshuvos 1:194 and 242) concurs with the view of Rebbi Meir since the verses support his view. Why does Rebbi Yehudah disagree with Rebbi Meir when so many explicit verses support Rebbi Meir's view? (According to one Girsa in the Sifri (Parshas Ha'azinu #308), Rebbi Yehudah himself may have changed his mind and agreed with Rebbi Meir. See MALBIM to Devarim 14:1.)
ANSWER: The verses which call the Jewish people "foolish children" (Yirmeyahu 4:22) or "children who act destructively" (Yeshayah 1:4) do not contradict the view of Rebbi Yehudah, because the verses themselves qualify the title "Banim" with a derogatory adjective which implies that the word "Banim" alone refers to the Jewish people when they follow the will of Hash-m. Indeed, Rashi in Yeshayah (1:4) explains that the verse means that the Jewish people who used to be beloved like children have now become destructive.
The only verse which poses a difficulty to the view of Rebbi Yehudah is the verse which calls the Jewish people, "Bnei Kel Chai" -- "children of the living G-d" (Hoshea 2:1). Rashi, however, explains that this verse does not refer to the Jewish people when they do not follow Hash-m's will, but rather when they have repented with sincere Teshuvah; only then are they called "Bnei Kel Chai." Rashi apparently understands that Rebbi Yehudah and Rebbi Meir disagree about whether the Jewish people return to the status of "Banim" once they have repented after having severely disobeyed Hash-m's word. (See MAHARIT and SEFER HA'MIKNAH.)
Perhaps the underlying dispute between Rebbi Yehudah and Rebbi Meir is who is greater -- Ba'alei Teshuvah who sinned and repented, or Tzadikim Gemurim who never sinned (similar to the dispute in Berachos 34b). Rebbi Meir maintains that Teshuvah entirely erases the sin such that the sinners retroactively are called "Banim" even during the time they sinned. After they repent, they have the added merit of the Mitzvah of Teshuvah which Tzadikim Gemurim do not have, and therefore they are considered greater than Tzadikim who never sinned. Rebbi Yehudah maintains that the sin leaves an impression and that the penitent cannot be called a "child" of Hash-m at the time he sinned. Although he repents, he is not at the same level of "Banim" he was at prior to his sin.
Perhaps Rebbi Yehudah and Rebbi Meir actually do not disagree at all but refer to two different types of Ba'alei Teshuvah. The Gemara in Yoma (86b) teaches that when a sinner repents out of fear of Hash-m (Teshuvah me'Yir'ah), his intentional sins ("Zedonos") are considered unintentional sins ("Shegagos"). When a person repents out of love for Hash-m (Teshuvah me'Ahavah), his intentional sins become merits ("Zechuyos") for him.
Rebbi Yehudah refers to people who repent out of fear. Since such people have not reached the level of Teshuvah me'Ahavah, they have a tendency to return to their sins. Therefore, they are not called "Banim" even after they repent and, moreover, their past sins still leave an impression (albeit they have been transformed into "Shegagos"). Rebbi Meir refers to people who repent out of love for Hash-m. Since they reach a level of closeness with Hash-m through their love for Him, there is no fear that they will return to their sins. Their sins become "Zechuyos" and they are considered as great as Tzadikim Gemurim. (M. KORNFELD)