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Sanhedrin, 76


OPINIONS: The Beraisa records an argument about what law is derived from the verse, "Do not defile your daughter through promiscuity" (Vayikra 19:29). Rebbi Eliezer maintains that this verse refers to a father who marries off his daughter to an old man. The opinion of Rebbi Eliezer is recorded as the Halachah (SHULCHAN ARUCH EH 2:9). RASHI explains that the reason one may not marry off his young daughter to an old man is because doing so will lead her to promiscuity, because the young woman will not want to have relations with the old man and, as a result, she will seek to have relations with other men.

What is the Halachah, though, when the young woman *wants* to marry the old man and is attracted to him? Do we let her marry him, or is this law absolute and such a marriage is not to be permitted?

(a) The RAMBAM (Hilchos Isurei Bi'ah 26:21) does not discuss this point. However, from his wording, it seems that he maintains that this is a general prohibition that applies regardless of what the young woman says that she wants. The Rambam states simply that "a man should not marry a young girl, for this causes promiscuity."

(b) However, there are early sources that say that it is permitted when the young woman says that she wants to marry him. The SEFER CHASIDIM (#379) explicitly states that this Halachah applies only when the girl does not want to marry the old man. If she wants to marry him because he is a "good Jew" or she feels that it is better for her to marry an older man, she is permitted to marry him.

The CHIDA (in BRIS OLAM) quotes the Avos d'Rebbi Nasan (ch. 16) which records a conversation between Rebbi Eliezer and his niece. Rebbi Eliezer suggested to his niece that she should get married. She responded that she would become his maidservant in order to have the privilege of washing his feet (meaning that she would like to marry him). Rebbi Eliezer told her that she should get married to a young man, close to her own age. His niece, however, repeated her original reply. Seeing that she was intent on marrying him, he agreed to marry her. This clearly shows that it is permitted for a young woman to marry an older man when it is her desire to do so.

An even earlier support to permit it seems to be the marriage of Boaz and Ruth. According to the opinion that maintains that Boaz was Ivtzan (Bava Basra 91a), he would have been over two hundred years old at the time that he married Ruth, a young woman.

The Heter of the Sefer Chasidim is cited by the CHELKAS MECHOKEK on the Shulchan Aruch. However, none of the Acharonim mention that he argues with the Rambam or Shulchan Aruch, but rather he is cited as giving further explanation for the Halachah.

The MARGOLIYOS HA'YAM says that the Gemara itself implies that a young woman may choose to marry an old man. Rebbi Eliezer does not describe the prohibition by saying that a young woman should not marry an old man. Rather, he refers to a *father* who marries off his daughter to an old man. This implies that the only problem is when the young woman is married off by her father, without having made a choice of her own, but when she chooses to marry the old man because he finds favor in her eyes (and not because of family pressure), then it is permitted.

The ARUCH HA'SHULCHAN further qualifies this condition by stating that it is not appropriate for her to marry the old man if her sole reason is because he is rich, or because she is hoping that he will die soon and she will inherit his property. He explains that even though she wants to marry him, since her motive for marrying him is due to his wealth, after she becomes accustomed to being wealthy she might seek to fulfill her desires that he is unable to fulfill and she live immorally with other men.

(c) RAV YAKOV EMDEN explains that when the Gemara here says that one should not marry off his young daughter to a "Zaken," the word "Zaken" here does not mean a man advanced in years (as it normally means). Rather, "Zaken" here refers to a man who is incapable of having relations with his wife, and incapable of having children. The Gemara uses the word "Zaken" to refer to this man, because he has the characteristics of an old man in marriage. If, however, an eighty-year-old man is capable of having relations and bearing children, then he is not considered a "Zaken" with regard to this Halachah.

Rav Yakov Emden first questions his assertion from the fact that Yehoyada ha'Kohen married a young woman when he was very old. He says, however, that we cannot bring any proof from earlier generations, since their nature was different and they had much greater strength at old age. Presumably, he would refute the proof from the marriage of Ruth to Boaz for the same reason. (Y. Montrose)


OPINIONS: Shmuel asks why the Torah does not use the word "Yad" ("hand-held") when referring to the metal instrument used in a killing, when it does use that word when referring to stone and wood instruments. When referring to a killing perpetrated with an iron instrument, the Torah says, "But if he strikes him with an iron weapon (bi'Chli Barzel) and he dies, then he is a murderer" (Bamidbar 35:16 ). In contrast, when referring to a killing perpetrated with a stone or wooden instrument, the Torah says, "But if he strikes him with a hand-held stone (b'Even Yad) with which one can kill... or with a hand-held wooden weapon (bi'Chli Etz Yad) that can be used to kill..." (Bamidbar 35:17-18), referring to the stone and wood weapons as "Yad."

RASHI explains that the word "Yad" connotes a requirement that the weapon be large enough that it has a part which the killer holds (a handle) when he uses it to kill a person; a person is not considered a murderer if he kills with a smaller instrument (because such an instrument is not likely to kill, and thus it is considered an accidental killing). Shmuel explains that a metal weapon does not need to be this minimum size, such that it has a handle, because even a small metal instrument has the potential to kill.

In what way can a small piece of metal kill?

(a) TOSFOS and the RAN in the name of RABEINU TAM explain that metal causes inflammation and infection of the skin, making it a more deadly weapon (see Shabbos 134a).

(b) RASHI explains that if someone sticks a tiny needle into the heart or windpipe of a person, it would kill him. The Yerushalmi supports the opinion of Rashi.

TOSFOS has difficulty with Rashi's explanation. A thorn would have the same fatal effect, making this characteristic not unique to metal.

RAV ELAZAR MOSHE HA'LEVI HOROWITZ answers the question of Tosfos. He explains that Rashi, and the Yerushalmi, are not referring to a person who thrusts a needle into another person. Rather, they are referring to a person who throws a piece of metal that then pierces someone's heart or windpipe. When dealing with small quantities of different types of materials, only metal is sharp enough such that when it is thrown it can pierce a person's skin lethally.

Why does Tosfos not consider that this is what Rashi means, especially since the Yerushalmi seems to support Rashi's explanation? The TORAS CHAIM answers that Tosfos understands that the Yerushalmi is *not* saying the same thing that Rashi says. The Yerushalmi says that a needle can kill a person when stuck anywhere in the body, as it tends to keep moving into the body even after the original force that thrust it there has finished. Rashi does not say this; Rashi says only that a needle is lethal when stuck into the heart or windpipe. Tosfos therefore questions Rashi's explanation by asking that if the unique characteristic of metal is that it can kill a person by entering the heart or windpipe *from the original force* with which it is thrust into the person, then that is not unique to metal, since even a thorn can kill from the original force when it is thrust into the heart or windpipe.

(Even if the Toras Chaim is correct, the answer of Rav Elazar Moshe ha'Levi Horowitz still applies to help us understand Rashi's explanation.)

The MAHARSHA has a different difficulty with Rashi. In his commentary on the Chumash (Bamidbar 35:16), Rashi explains the verse based on the Sifri and Yerushalmi, which explain the verse differently than the way our Gemara explains it. He explains that when discussing stone and wood weapons, the Torah says, "... with which one can kill (Asher Yamus Bah/Bo)." These words are not written with regard to a metal weapon. This implies that in order for a person to be charged with murder for killing with a weapon of stone or wood, the piece of stone or wood must be of sufficient size to kill a person. These words are not written with regard to a metal weapon, because, as Rashi comments on the verse, even a small amount of metal is lethal. Why, asks the Maharsha, does Rashi not explain the verse like our Gemara?

The ARUCH LA'NER explains that Shmuel's teaching is based on the omission of *both* phrases -- "Yad" and "Asher Yamus Bo" -- from the verse regarding murder with a metal weapon. He asserts that Shmuel's main source for his Halachah is the omission of the words, "Asher Yamus Bo." However, the verse cannot be saying that a small, obtuse piece of metal which cannot kill a person is considered a valid tool of murder. What, then, defines what is a valid weapon to constitute murder, and what is not? To answer this question, the Torah refers to a metal weapon as a "Kli Barzel," without saying "Yad" as it does with regard to a stone and wood weapon. The fact that the Torah writes "Yad" with regard to the other types of weapons but not with regard to a metal weapon indicates that only when an item such as a needle or other sharp piece of metal is used does a small piece of metal constitute a lethal weapon. Both phrases, therefore, are necessary for this Derashah, and thus both our Gemara and the Sifri (and Yerushalmi) are correct, and they complement each other.

The Aruch la'Ner continues and answers Tosfos' question on Rashi. A thorn is not considered a weapon, unlike a needle, even though it can be lethal if thrust into a person's heart or windpipe. This is because the Torah only considers something which is a *utensil* ("*Kli* Barzel" or "*Kli* Etz") to be a weapon (such as a needle), and a thorn -- although made out of wood -- is not a utensil. If it is a utensil and has a handle ("Kli Etz Yad"), then it is called a small club and not a thorn. (Y. Montrose)

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