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Kesuvos, 6

KESUVOS 6-9 - have been anonymously dedicated by a unique Ohev Torah and Marbitz Torah living in Ramat Beit Shemesh, Israel.


QUESTION: The Beraisa teaches that a person may perform Be'ilah with a Besulah during the first four nights after the wedding, even though one of those nights is Shabbos.

The Gemara explains that this Beraisa is not proof that it is permitted to perform the first Be'ilah on Shabbos (i.e., that the blood is not absorbed within the flesh and extracting it is not considered to be a Melachah of Chaburah), because in the case of the Beraisa, he already performed Be'ilah before Shabbos, and thus when he does Be'ilah again on Shabbos he is not making a Chaburah. The Gemara asks that if the case of the Beraisa is where he already performed the first Be'ilah before Shabbos, then what is the Beraisa teaching us? The Gemara answers that the Beraisa is teaching us the Halachah of Shmuel, that a person is permitted to enter a narrow opening on Shabbos even though he rubs off stones from the sides of the opening.

If the Be'ilah on Shabbos still causes Dam Besulim to come out during the first four nights, like walking through a narrow opening and causing stones to become detached from the sides, then why is it permitted on Shabbos? It should be prohibited just like the Be'ilah Rishonah is prohibited on Shabbos -- because of the blood coming out! Even if he does not intend to extract the blood, it is still a Pesik Reshei and should be prohibited!


(a) The RIVASH (#394) addresses the comments sent to him by a questioner. The questioner suggests that the reason it is permitted to walk into a narrow opening even though one thereby rubs off stones from the sides is because had the stones been firmly cemented into the wall, they would not have been rubbed off. Because of this, even if the stones are not cemented in firmly it is not considered a Pesik Reshei if he rubs them off. Similarly, since there is no Isur of Be'ilah on Shabbos with other women who have been married for a while and who will not bleed, Be'ilah with this newly married woman is not considered a Pesik Reshei (even though she will bleed). It remains no more than a "Davar she'Eino Miskaven" and is permitted.

The RIVASH rejects this approach emphatically. He says that there is no logic to justify such a suggestion. If rubbing against this wall will cause stones to be detached, and if Be'ilah with this woman will cause blood to flow, then it is a Pesik Reshei and is certainly prohibited!

We do find, however, a concept similar to that which the questioner suggests, in RASHI in Zevachim (91b, DH Ha Rebbi Shimon). Rashi explains that pouring wine (for the Nesachim) on the fire of the Mizbe'ach is permitted because one does not intend to extinguish the fire of the Mizbe'ach, but rather one intends to bring the wine offering. Rashi there adds that extinguishing the fire is not a Pesik Reshei, because it is possible to pour the wine with very small drops that will not extinguish the flame, and therefore even if one pours thick drops that extinguish the flame on the Mizbe'ach, it is a "Davar she'Eino Miskaven" and not a Pesik Reshei (because he could have poured small drops).

There is, however, a clear difference between the Halachah presented by Rashi in Zevachim and that of the questioner in the Rivash. In Rashi's case, the person pouring the wine has an alternate way to achieve *his* goal, by pouring the wine in a way in which an Isur will not be done. In the cases of our Gemara, though, there is no way for *this person* to achieve his goal without doing an Isur; stones will definitely be rubbed off when walking through the narrow opening, and blood will definitely be caused to flow when doing Be'ilah on Shabbos.

(b) The RIVASH himself explains that when Shmuel says "even though one causes stones to be detached," he does not mean that stones will certainly fall when the person walks there, but that there is a *possibility* that stones will be detached; it is not a Pesik Reshei. Similarly, there is a *possibility*, but not a certainty, that the woman will bleed, and therefore it is not a Pesik Reshei. This also seems to be the intention of Rashi (DH she'Meshir Tzeroros) who writes that "*perhaps* he will cause bleeding."

However, this still does not answer the Gemara fully. The Halachah that Be'ilah is permitted during the first four nights after the wedding is quoted in the name of Beis Hillel. Thus, Beis Hillel is ruling that a "Davar she'Eino Miskaven" is permitted. If so, how will Rebbi Yehudah -- who says that "Davar she'Eino Miskaven" is prohibited -- understand this Halachah of Beis Hillel? He certainly cannot be arguing with Beis Hillel!

Perhaps the Gemara holds that according to Rebbi Yehudah, Beis Hillel holds that the first Be'ilah is indeed permitted on Shabbos because of Mekalkel. Beis Hillel is not discussing entering a narrow opening at all.

Alternatively, entering the narrow opening is not even a "Davar she'Eino Miskaven," because it is *very* unusual for the stones to become detached, or for bleeding to occur. Therefore it is permitted even according to Rebbi Yehudah.

(c) The RASHBA writes that the bleeding that occurs after the first day is not from the Chaburah made to the Besulim. Rather, it is just blood that was stuck to the sides of the flesh that was already separated from the flesh. It is similar to walking into a narrow opening that has loose stones on the sides that are not attached which are brushed off when one rubs against them.

QUESTIONS: The Gemara cites the Chachamim who rule that it is permitted to perform the first Be'ilah on Shabbos, because causing blood to come out is a "Davar she'Eino Miskaven." Abaye asks that it should still be prohibited because it is a Pesik Reshei. Rabah replies that since there are those who have experience with performing Be'ilah with Hatayah, and not like the Bavli'im who have no experience with Hatayah, it is not considered a Pesik Reshei and is permitted.

The Gemara then asks that if a person is able to perform Be'ilah with Hatayah, then why is a person who is newly married exempt from Keri'as Shema because he is "Tarud" (worried) about performing the Mitzvah (on Shabbos, - Tosfos), as the Mishnah in Berachos says? The person can simply do Be'ilah with Hatayah and then he has nothing to be worried about! The Gemara answers that the Mishnah there is referring to a person who is not an expert in Hatayah, who *is* "Tarud" and is thus exempt from Keri'as Shema.

The Gemara then asks that according to this, only an expert at Hatayah should be permitted to perform the first Be'ilah on Shabbos, and one who is not an expert should be prohibited. To this the Gemara answers that "Rov Beki'in Hen," most people are experts.

The Gemara seems to be saying that some people are able to do Hatayah and some are not. Those who are not able to do Hatayah are "Tarud" because of the Be'ilas Mitzvah, and they are exempt from Keri'as Shema even on Shabbos. Also, such people are not permitted to perform the first Be'ilah on Shabbos since they do not know how to do it with Hatayah.

There are a number of obvious questions on the Gemara.

The RASHBA asks, first, that if a non-expert is not permitted to perform the first Be'ilah on Shabbos, then why is he "Tarud" and exempt from Keri'as Shema? An expert is not "Tarud" because he can do Hatayah, and a non-expert is not "Tarud" because he is not permitted to perform the Be'ilah Rishonah on Shabbos! Since no one will do a complete, prohibited form of Be'ilah on Shabbos, why should anyone be "Tarud" and exempt from Keri'as Shema?

Second, if every expert in Hatayah is required to read Keri'as Shema, then why does the Mishnah in Berachos ask that Raban Gamliel should have been exempt from Keri'as Shema? Being from Eretz Yisrael, and not Bavel, he was certainly part of the majority who can do Hatayah ("Rov Beki'in Hen") and thus he was not "Tarud." Why, then, did Raban Gamliel's Talmidim question why he read Keri'as Shema the night of his marriage?

Third, if Be'ilah Rishonah on Shabbos is permitted only according to Rebbi Shimon because a person is an expert and will do Hatayah, then why does the Tana Kama argue and prohibit it? What reason could there be to prohibit the Be'ilah Rishonah for an expert who does Hatayah?

Fourth, the Gemara concludes that Be'ilah Rishonah is permitted on Shabbos, and this is the Halachah (as the Poskim rule). Based on our Sugya, though, it should only be permitted for one who is an expert in Hatayah, and who specifically intends to do Hatayah! Why, then, do the Poskim say that Be'ilah Rishonah on Shabbos is permitted without mentioning that one must do Hatayah? (HAGAHOS ASHIRI; see DERISHAH in EH 63:1.)

Another very basic question on the Sugya is that our Mishnah is discussing a man who was never married before (as the Gemara says on 9a-b). How, then, could he be an expert in Hatayah?

(a) The SHITAH MEKUBETZES cites the RADVAZ who explains that in theory, Keri'as Shema *should* be recited on the night of one's wedding by one who is an expert in Hatayah, and *should not* be recited by those who are not experts. However, the Chachamim instituted that *no one* should recite Keri'as Shema on their wedding night because of "Lo Sisgodedu" (to prevent making it look like there are two distinctly separate groups of people following two separate Halachos, see Yevamos 13b and Rashi, Sukah top of 44a). The Chachamim could not have instituted conformity the other way by having everyone, including the non-expert, read Keri'as Shema on his wedding night, because it be a lack of Kavod Shamayim to institute that Keri'as Shema be recited by someone who is not able to concentrate.

Similarly, with regard to Be'ilas Mitzvah, it should have been prohibited for a person who is not an expert to perform Be'ilas Mitzvah on Shabbos, but the Chachamim permitted him to do it because of "Lo Sisgodedu," establishing the same protocol of conduct for everyone.

Although this answers the questions we asked above (except for the last one), it is a forced answer. We do not find that it is *prohibited* for a Tarud to say Keri'as Shema. In addition, how can Lo Sisgodedu be applied to Be'ilas Mitzvah, an act that is, by nature, done in private? And if it does apply, why did the Chachamim not *prohibit* it to everyone, instead of permitting it to everyone.

(b) RASHI (DH Baki Mutar) appears to say that even a "Baki" cannot be certain that he will do Be'ilah with Hatayah and avoid extracting blood. Rather, when we refer to a person who is a "Baki" to do Be'ilah with Hatayah, we mean one who is *able* to do Hatayah. Hatayah is not something that one has decides to do and does based on skill. It is not an expertise that is acquired through experience. Rather, it is a *physiological nature*. Some people are able to do Hatayah because of their physiological make-up, and others are not able to do Hatayah. That is what is meant by a "Baki" at Hatayah.

This explains how a Bachur could be a Baki. Hatayah has nothing to do with acquired knowledge (of which a Bachur certainly has none), but rather the physiology of a person.

This also explains why Rebbi Yehudah argues. He prohibits Be'ilah Rishonah on Shabbos because even a Baki might end up not doing Hatayah. The act is therefore prohibited because of Davar she'Eino Miskaven. This also explains why the Halachah does not require that a person *intend* to do Hatayah, or that a person be an expert of some sort. He must simply have a particular physiological makeup.

Why, though, do the Poskim not mention that those people (the minority) who do not have the physiology required for doing Hatayah are prohibited from doing Be'ilah Rishonah on Shabbos? The answer is because a person cannot know whether he is able to do Hatayah or not before he does Be'ilah for the first time. Therefore, it is permitted for one to follow the Rov and to assume that he is probably a Baki. (Rashi DH Rov Beki'in, TOSFOS DH Rov.)

When the Gemara asks that a Baki should be obligated to read Keri'as Shema since he is not "Tarud," the Gemara at that point thought that a Baki is *always* able to do Hatayah, and therefore he has nothing to worry about. The Gemara answers that even the Baki is not a complete expert, since he cannot know for sure that he is going to do Hatayah; it is only a possibility. The Gemara is answering that being a Baki means only that it is possible that he will not extract blood and therefore it is not a Pesik Reshei. There is still an element of anxiety involved since one is never certain that he will do Hatayah. (Rashi's Girsa in the Gemara probably read "she'Eino Baki" instead of "l'she'Eino Baki," like the Girsa of the Rashba and the Munich manuscript.)

Therefore, even a Baki is exempt from Keri'as Shema, and that is why the Mishnah in Berachos says that everyone is exempt from Keri'as Shema on the night of one's wedding, and even Raban Gamliel also should have been exempt.

(c) RABEINU TAM (cited by the Ritva and other Rishonim, and cited in part by Tosfos DH Lo) explains the Sugya differently. He says that as far as Keri'as Shema is concerned, even a Baki is exempt, because he is not confident in himself that he will be a Baki until he actually performs the Be'ilah. Hence, he is nervous on his wedding night and is exempt from Keri'as Shema. That is why Raban Gamliel and other experts are also exempt from Keri'as Shema on their wedding night.

Why is a person who is not an expert permitted to perform Be'ilah Rishonah on Shabbos, as we asked above? The answer is that since most people are experts and can intend to do Hatayah, it stands to reason that the minority who are not able to do Hatayah *at will* might, nevertheless, *accidentally* do Hatayah. Therefore, for those people, too, it is not a Pesik Reshei and is Mutar (RIVASH #394).

The RITVA explains the Gemara differently according to Rabeinu Tam. He explains that when Rabah said that Bavlis do not know how to do Hatayah, he did not mean that they literally do not know how to do Hatayah. He simply meant that the Bavli'im are *not aware* that it is *possible* [for anybody] to do Hatayah, and therefore they think that causing blood to flow as a result of Be'ilah Rishonah on Shabbos *is* a Pesik Reshei. They are mistaken, however, and the truth is that it is not a Pesik Reshei.

Abaye, who asked that one who is not a Baki should be prohibited from doing Be'ilah Rishonah on Shabbos, misunderstood what Rabah was saying. Rabah corrected him and explained that he did not mean that there are some people who cannot do Hatayah. Rather, he meant that "Rov Beki'in Hen," meaning that *everyone* can do Hatayah.

The question remains, though, that Be'ilah Rishonah should still be permitted on Shabbos *only* if a person intends to do Hatayah, because then at least he *might* do Hatayah. Tosfos (DH Lo) writes clearly that it is permitted to do Be'ilah Rishonah as long as one does not have intention to do Be'ilah Gemurah. Why, then, do the Poskim leave out this condition?

The answer might be that Tosfos writes only that one must *not* have intention to do Be'ilah Gemurah (in the negative). He does not write that one *must* intend to do Be'ilah with Hatayah (in the positive). Tosfos is saying that Be'ilah Rishonah on Shabbos is prohibited only if a person intends to do Be'ilah Gemurah and specifically wants to avoid Hatayah; such a Be'ilah is Asur because it is a Pesik Reshei that blood will flow. As long as a person does not have anything in particular in mind, it is permitted to perform Be'ilah in the normal manner, because one might do Hatayah. (Tosfos here is following his own explanation elsewhere; see Insights to 5b.)

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