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Yevamos, 60

YEVAMOS 46-60 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


QUESTION: Rav and Rebbi Yochanan rule that a Kohen Gadol may not marry a "Bogeres" or a "Mukas Etz," but if he does marry her, then, b'Di'eved, he does not have to divorce her. The reason is because even if he would have married her before she became a Bogeres or a Mukas Etz, the physical change in her would have happened in any case after he married her ("Sofah Liheyos Bogeres Tachtav..."). Therefore, when he married her after the physical change took place, b'Di'eved he may remain married to her.

The logic seems to be that the Torah would not prohibit him from living with a woman who is a Bogeres or Mukas Etz, whether she became such before the Kohen married her or after he married her, because, otherwise, he would never be able to remain married (since every woman becomes a Bogeres and Mukas Etz after marriage). It must be that the Torah only prohibits the act of *marrying her* in the first place. But once he is already married to her, it is not prohibited to *remain married*. Even if the marriage was done b'Isur, he is no longer doing any Isur by staying married.

The Gemara suggests that the same Halachah should apply to a woman who is a "Be'ulas Atzmo," someone whom the Kohen himself did Bi'ah with before marriage. He is not permitted to marry her, but if he did, then b'Di'eved he should be permitted to stay married to her, the same way he is permitted to stay married to a Bogeres or a Mukas Etz. Therefore, the Gemara questions Rav Huna's ruling in the name of Rav (end of 59b) that the Kohen Gadol may *not* remain married to a woman who is a "Be'ulas Atzmo."

RASHI (DH Sofah Lihiyos) explains that the logic of "Sofah Liheyos..." applies to a woman with whom *the Kohen Gadol himself* did Bi'ah, because he will eventually do Bi'ah with her anyway. That is, the Gemara is only applying this logic to a woman with whom *he* did Bi'ah, but not to a woman with whom another man did Bi'ah. This is in fact implicit from the wording of the Beraisa (59b), because the Beraisa says that only a woman who is an "Anusas *Atzmo*" may remain married to the Kohen Gadol, implying that if she did Bi'ah with any other person, then she may not remain married to him.

If the logic of "Sofah Liheyos" applies to a woman with whom the Kohen Gadol himself did Bi'ah before marriage, permitting him to remain married to her, then what difference does it make if it was that Kohen Gadol himself who did Bi'ah with her, or any other man? In either case, she is eventually going to become a "Be'ulah" after marriage, and thus the logic of "Sofah Liheyos" should permit them to stay married!

Furthermore, the Poskim (RIF, RAMBAM, RASHBA) say that the Halachah follows Rav Huna's ruling in the name of Rav, that a Kohen must divorce a woman who was a "Be'ulas Atzmo," even though they also rule that a Kohen *may* remain married to a Bogeres and Mukas Etz! The reason for this, as the Rashba points out, is that the Gemara does not conclude with a "Teyuvta" on Rav's ruling, but only with a "Kashya." This implies that there is indeed a way to answer the Gemara's question, even though the Gemara itself leaves it unanswered. How can we answer why it is permitted for a Kohen Gadol to remain married to a Bogeres or Mukas Etz, but not to a "Be'ulas Atzmo?"


(a) A woman who loses her Besulim by becoming a Bogeres before marriage is losing it in the exact same way that she would lose it if she became a Bogeres after marriage. The Torah, therefore, cannot prohibit a Bogeres who loses her Besulim before marriage any more than if she loses it after marriage; if the Kohen is allowed to stay married to her when she becomes a Bogeres after marriage, then the Torah cannot prohibit her to him if she became a Bogeres before marriage. The same applies to a Mukas Etz. If she loses her Besulim because she was Mukas Etz before marriage, it is not possible for her to be more prohibited to the Kohen than a woman who loses her Besulim after marriage -- there is nothing different or unique about becoming a Mukas Etz before marriage that should not apply after marriage (when the husband removes the Besulim through Bi'ah)!

However, when it comes to the Isur of marrying a Be'ulah, it is not the actual removal of the Besulim that makes her Asur as a Be'ulah, but rather it is the fact that she becomes a *Be'ulah* -- that there was an act of Bi'ah performed by somebody with her. The Gemara here is proposing that there is a difference when she is a Be'ulah because her husband himself did Bi'ah with her prior to marrying her ("Be'ulas Atzmo"). and when she is a Be'ulah from another man. The Torah prohibits a Kohen Gadol from marrying a Be'ulah who did Bi'ah with another man, because the logic of "Sofah Lehiyos Be'ulah Tachtav" cannot apply -- the Bi'ah that she will do with her husband will be less disgraceful, since it will be his and not another man's. What happens after she marries is not identical to what happened before she married. and therefore the Bi'ah she did with another man before marriage will render her invalid from remaining married to a Kohen Gadol.

This also explains the view of Rav Huna in the name of Rav (with whom the Poskim concur) that a Kohen must divorce a "Be'ulas Atzmo" and may not remain married to her, and the logic of "Sofah Liheyos" does not apply to her. Rav holds that the Bi'ah that will occur after marriage will be a Bi'ah of Ishus, of marriage, and that is not loathsome as a Bi'ah without Ishus, even if it is done by the same man who eventually marries her. Therefore, the case of a "Be'ulas Atzmo" cannot be compared to the cases of Bogeres and Mukas Etz.

OPINIONS: The Gemara says that according to Rav Huna, a Kohen Gadol who marries an "Anusas Atzmo," a woman whom he himself raped, may not remain married to her. However, his marriage to her is considered valid, even though he has to end it, with regard to exempting him from paying a Kenas (penalty) to a woman whom he was Mefateh. The Torah gives the option of marrying a Mefutah or paying a Kenas (Shemos 22:16). By marrying the woman he was Mefateh -- even though the Kohen Gadol is not permitted to do so and must divorce her -- he becomes exempt from the Kenas.

The wording of the Beraisa implies that this Halachah applies only to the Isur of a Kohen Gadol marrying a Be'ulah. If she was Asur to the Kohen Gadol because of a different Isur as well -- for example, if he was Mefateh an Almanah who was widowed during Erusin (and thus she was not a Be'ulah) and then he married her, he would have to divorce her *and* pay the Kenas, even though he married her.

What is unique about the Isur of Be'ulah that, by transgressing the Isur and marrying a Be'ulah whom he was Mefateh, the Kohen Gadol is exempt from paying the Kenas?

(a) RABEINU TAM (cited by the TOSFOS YESHANIM on 55b; see also the note of REBBI SHLOMO EIGER in Chidushei Rebbi Akiva Eiger, Kesuvos 30a) says that a woman who is "Be'ulas Atzmo" is not prohibited to a Kohen Gadol mid'Oraisa, but only mid'Rabanan.

According to Rabeinu Tam, it is clear why the Chachamim were lenient in a case where the Kohen Gadol married a Mefutah who is "Be'ulas Atzmo" and exempted him from the Kenas -- because she is only prohibited to him mid'Rabanan. (Even though he is not exempt from the Kenas when he marries women prohibited through other Isurei d'Rabanan, such as Sheniyos, the Isur of marrying a "Be'ulas Atzmo" is weaker -- because the Isur d'Oraisa itself of marrying a Be'ulah is only an Isur Aseh -- and the Chachamim were more lenient.)

(b) TOSFOS (59a, DH Ileima) argues and says that the Isur of marrying a "Be'ulas Atzmo" is mid'Oraisa. Nevertheless, TOSFOS (60a, DH sh'Eino Meshalem), suggests that the Isur of *remaining* married to the "Be'ulas Atzmo" might be only mid'Rabanan, even according to Rav Huna in the name of Rav, who says that the Kohen must divorce her.

According to this understanding, we can also understand why the Chachamim were more lenient in the case of a Kohen Gadol marrying a "Be'ulas Atzmo." Since the Isur to remain married to Be'ulas Atzmo is only mid'Rabanan, the Rabanan exempted him from the Kenas, as opposed to a Kohen Gadol who marries a woman prohibited to him through other Isurim (such as an Almanah), where she is prohibited to remain married to him mid'Oraisa.

(c) However, TOSFOS (60a) is uncertain about this ruling that the Isur to *remain* married is only mid'Rabanan. He says that it is possible that both the Isur to marry her and to remain married to her are both Isurei d'Oraisa. If so, why should the Kohen be exempt from a Kenas when he marries a "Be'ulas Atzmo" whom he was Mefateh, any more than with other Isurei Kehunah?

It must be that Mid'Oraisa, he is really exempt from the Kenas if he marries *any* woman who is prohibited to him -- even though he has to divorce her. In the case of Be'ulas Atzmo, the Chachamim were lenient and did not penalize him to pay the Kenas since the Isur of marrying such a woman is only an Isur Aseh which is "Eino Shaveh ba'Kol" (it applies only to a Kohen Gadol). Even though mid'Oraisa he is also exempt from the Kenas when he marries an Almanah, the Chachamim nevertheless required him to pay a Kenas. Moreover, it could be that the Chachamim were lenient with Be'ulas Atzmo because people are not aware of the Isur to marry a "Be'ulas Atzmo." Since the Kohen Gadol probably did not know that he was prohibited from marrying her, the Chachamim did not levy the Kenas upon him.


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