THOUGHTS ON THE DAILY DAF
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SANHEDRIN 21-22 - Mrs. Estanne Abraham-Fawer has dedicated two more days of
study material to honor her father, Reb Mordechai ben Eliezer Zvi (Weiner)
of blessed memory (Yahrzeit: 18 Teves). May the merit of supporting and
advancing the study of the Talmud be l'Iluy Nishmaso.
1) HALACHAH: THE CONCEPT OF "PILEGESH"
QUESTION: The Gemara, after quoting the verse that says that David ha'Melech
married additional wives (Nashim) and concubines (Pilagshim), inquires about
the difference between Nashim and Pilagshim. Rav Yehudah in the name of Rav
explains that Nashim are wives who are married through the process of
Kidushin and who receive a Kesuvah. Pilagshim are married without Kidushin
and without a Kesuvah.
HALACHAH: The REMA (EH 25:1) quotes the RA'AVAD as stating that a Pilegesh
is permitted as long as she is set aside for him and goes to the Mikvah at
the appropriate times, like a normal wife. The Rema then quotes the RAMBAM,
ROSH, and TUR who rule that marrying a woman as a Pilegesh is forbidden
(seemingly agreeing with the Kesef Mishneh's understanding of the Rambam).
The BEIS SHMUEL and the CHELKAS MECHOKEK there argue that this is not the
opinion of the Rosh and the Tur. The Beis Shmuel also cites other opinions
regarding the view of the Rambam (as we mentioned above).
How, though, does one marry a Pilegesh if there is no Kidushin? The Gemara
does not describe how the marriage of a Pilegesh takes place.
In addition, what is the practice today with regard to marrying a Pilegesh?
(a) First, we must note that there are other opinions regarding a Pilegesh
besides that of Rav in our Gemara. The Yerushalmi (Kesuvos 5:2) discusses an
argument between Rebbi Meir and Rebbi Yehudah regarding whether a Pilegesh
receives a Kesuvah.
In addition, the RAMBAM (Hilchos Ishus 1:4) states that after the Torah was
given, one who has relations with a woman with intention for Z'nus and
without Kidushin is punished with lashes according to the Torah. The LECHEM
MISHNEH asserts that the RAMBAM's Girsa of our Gemara reads that a Pilegesh
*is* acquired through Kidushin, but without a Kesuvah. The Lechem Mishneh
explains that this is why the Rambam prohibits an act of Bi'ah without
Kidushin, because, according to the Rambam, such an act does not even
constitute an act of taking a Pilegesh.
(b) The RA'AVAD argues with the Rambam there and says that there is no such
prohibition, for this act is the act of marrying a Pilegesh (i.e. Bi'ah
without Kidushin). (The Ra'avad explains that the word "Pilegesh" is
comprised of the words "Pi Shagal," which indicates a woman who is used in
both domestic and "marital" ways.)
The KESEF MISHNEH argues with the Lechem Mishneh and maintains that the
Rambam himself agrees that a Pilegesh is taken without Kidushin, because the
Rambam himself clearly states (in Hilchos Melachim 4:4) that a Pilegesh is
acquired without Kidushin and without a Kesuvah! He answers the question of
the Ra'avad on the Rambam by explaining that the Rambam maintains that the
entire concept of Pilegesh is limited exclusively to kings; an ordinary
person may not take marry a Pilegesh.
The RAMBAN poses a strong question on the view of the Rambam. We find that
many of the great people of Israel took Pilagshim for themselves (such as
Kalev and Gideon. From the incident of Pilegesh b'Givah (Shoftim 19-21; see
Background to Bava Basra 116:3) it also seems that there was no sin
committed by taking a Pilegesh.
The BI'UR HA'GRA (EH 25:1) answers that it is apparent from the Rambam that
all of these instances dealt with a young maidservant who was married
through "Yi'ud," the special procedure through which the owner of a Jewish
maidservant marries the maidservant (see Background to Bava Basra 108:12a).
(c) The PRI CHADASH (in his comments on the Rambam, MAYIM CHAIM) and the RI
MI'TRANI argue that the Rambam states only that a person may not have such
relations *with intention for Z'nus* without Kidushin. However, if his
purpose is to designate this woman as being exclusively for himself, then
this act of taking a Pilegesh is permitted even for an ordinary person. He
explains that since the Torah prohibits doing such an act with a woman
without such intention, then it would not be permitted for a king to do it
just because he is the king!
It appears from the Ra'avad and the Pri Chadash that a Pilegesh is similar
to a normal wife, since she has been set aside for a specific man. RAV YAKOV
EMDEN in SHE'EILOS YA'AVETZ (Teshuvah 2:15) describes additional
qualifications consistent with this theme. For example, he states that a
Pilegesh must have a room set aside as her own room, and she must never
transgress the prohibition of Yichud (being alone with another man to whom
she is not married) as this would show that she is not really set aside for
a specific man.
The accepted practice is to follow the ruling of the Rambam according to the
Kesef Mishneh and to prohibit the practice of taking a Pilegesh. Although
RAV YAKOV EMDEN (loc. cit.) rejects the opinion of the Rambam, he concludes
that he would not permit the practice of marrying a Pilegesh unless two
other Halachic authorities signed with him to permit it, and thus it has
remained the practice not to allow it. (Y. Montrose)
2) REASONS FOR THE MITZVOS
QUESTIONS: Rebbi Yitzchak says that the reason why the Torah does not reveal
the reason for the Mitzvos is because if a person thinks that he knows the
reason for a Mitzvah, he might mistakenly assume that since the reason does
not apply to him, neither does the Mitzvah. Indeed, the Torah reveals to us
the reason for two Mitzvos, and yet the wisest of all men, Shlomo ha'Melech,
erred and transgressed, mistakenly thinking that those two Mitzvos did not
apply to him. The Torah states that a king shall not have many wives, so
that they not turn his heart away from the service of Hashem. Shlomo
ha'Melech said to himself that he certainly would not stray from the service
of Hashem, and he married many wives, and yet they indeed "turned his heart
away" from serving Hashem (see Parshah Page, Va'era 5758, for an analysis of
Shlomo ha'Melech's deeds). Similarly, the Torah states that a king shall not
amass horses, lest he be enticed to go back to Mitzrayim to trade horses.
Shlomo ha'Melech felt that he would be able to amass horses without going
back to Mitzrayim, and yet he indeed ended up going to Mitzrayim.
(a) If revealing the reasons for Mitzvos could cause a person to err (as it
did in the case of Shlomo ha'Melech), then why does the Torah reveal the
reasons for these two Mitzvos -- the Mitzvah for a king not to have too many
wives, and the Mitzvah for a king not to amass horses?
(b) Are we supposed to attempt to understand the reasons for Mitzvos, or are
we supposed to refrain from searching for the reasons for Mitzvos?
(a) The MAHARSHA explains that the reasons for these two Mitzvos had to be
revealed, because the reasons themselves are Mitzvos. The reason for not
having too many wives is so that one should not let his heart stray from the
Mitzvos in general, which itself is a Mitzvah. This is apparent from the
opinion of Rebbi Shimon in the Mishnah (21a) who says that it is forbidden
for a king to marry even one wife who will make him stray from serving
Hashem. Similarly, the reason for not amassing horses is itself a separate
prohibition -- not to return to Mitzrayim.
The MARGOLIYOS HA'YAM points out that the Torah does give reasons for
certain Mitzvos in the Torah (for example, the Torah says that we are to
dwell in the Sukah during Sukos "so that your future generations will know
that I had the Jewish people dwell in Sukos when I took them out of
Mitzrayim" (Vayikra 23:43)). However, these reasons do not carry with them
the possibility that a person will err and sin because of them, since the
reasons are not intrinsic to the fulfillment of the Mitzvah. For example,
the Torah commands us to dwell in a Sukah. The fact that the Torah
afterwards tells us the reason why we are to dwell in a Sukah cannot cause a
person to think that he is exempt from dwelling in a Sukah. In contrast, the
Mitzvos of not having too many wives and horses are described in terms of
causative factors leading to the more serious sins of straying from Hashem
or going to Mitzrayim. Hence, in the case of those two Mitzvos, a person
could err and think that those Mitzvos, which seem to be safeguards for more
serious Mitzvos, do not apply to him.
(b) Based on this Gemara, we might think that we should not inquire into the
reasons for the Mitzvos. However, the Gemara itself in many places states
the reasons for many Mitzvos. As stated above, the problem with knowing the
reason for a Mitzvah is that one might assume that the reason alone is
Hashem's intention in commanding a certain Mitzvah, when, in truth, the
reasons given in the Gemara are not absolute and exclusive, but rather they
merely express one aspect of the Mitzvah. There obviously could be many more
reasons behind any particular Mitzvah.
A dispute about this matter among the Rishonim began with the publishing of
the RAMBAM's classic work, MOREH NEVUCHIM. In Moreh Nevuchim, the Rambam
gives reasons for a number of Mitzvos. For example, the Rambam states that
the reason why the Torah says that one should not shave the sideburns is
because that is the manner of idolatrous priests. The TUR (YD 181) dismisses
this reason and states that we do not need a reason for it; it is a Mitzvah
that we observe regardless of the reason.
The BEIS YOSEF understands that the Tur is saying that we should never try
to understand the reasons for the Mitzvos. The Beis Yosef asks, therefore,
that we find in the Gemara that Rebbi Shimon would always try to understand
the Torah's reasons for Mitzvos. The DARCHEI MOSHE explains that the Tur
thought the Rambam was saying that the parameters of the Mitzvah are based
on how these priests shaved their hair. The Tur said that this cannot be, as
we are to understand the parameters of a Mitzvah based only on the Torah,
whether the Written Law or the Oral Law, but not based on our own reasoning.
Based on our Gemara, we understand this answer for the Tur. The Tur knew
that the Gemara gives reasons for Mitzvos, and that it is beneficial to know
those reasons because it helps us to understand the will of Hashem. However,
the Tur thought that there still exists the danger that people might
understand the reason as absolute and mishandle the Mitzvah as a result.
People would not make such a mistake, however, when the Gemara gives no
reason for a Mitzvah; we would not assume on our own to know the reason for
Many commentators indeed give their own reasons for Mitzvos. It is possible
that the Tur would not be opposed to giving reasons for Mitzvos when those
reasons have no Halachic ramifications. (see BACH, TAZ (YD 181), and
MARGOLIYOS HA'YAM here.) (See also Insights to Megilah 25:2, where we quote
the MOREH NEVUCHIM and the RAMBAN in Devarim 22:6 with regard to the Mitzvah
of Shilu'ach ha'Ken.) (Y. Montrose)