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Yevamos, 79

YEVAMOS 79, 80 - The first two of four Dafim dedicated in honor of Dr. Charles and Rosalind Neustein, whose retirement to Florida allows them to spend even more time engaging in Torah study!


The Gemara says that the Jewish people personify three Midos: they are merciful, they are bashful, and they perform acts of kindness. The MAHARAL (here and in Nesiv ha'Bushah #1) explains that these three Midos were inherited from the three Avos, Avraham, Yitzchak, and Yakov.

The Gemara learns that the Jewish people have the Midah of Rachamim, mercifulness, from the verse, "And He will give you mercy" (Devarim 13:18). We find that Yakov Avinu said to his sons, "May Hashem give you mercy" (Bereishis 43:14). (Yakov Avinu was asking Hashem to grant his descendants mercy in the eyes of others in return, Midah k'Neged Midah, for Yakov's own exemplary Midah of Rachamim. Yakov's mercy is also demonstrated in the description of the way he tended the flocks of Lavan, Bereishis 31:38-40.)

The Gemara learns that the Jewish people excel in the Midah of Bushah from the verse, "... so that awe of Him should be upon your faces" (Shemos 20:17). The Gemara is telling us that awe of Hashem, Yir'as Hashem, is the source for the Midah of Bushah, bashfulness. Similarly, the Torah uses the term "Pachad Yitzchak" (Bereishis 31:42) -- "the *fear* of Yitzchak" -- to describe Yitzchak's relation to Hashem, because Yitzchak excelled in the Midah of Yir'as Hashem (after nearly being slaughtered at the Akeidah).

The verse that the Gemara quotes to show that the Jewish people are Gomlei Chesed is the verse in which Hashem praises Avraham for teaching his descendants "to do acts of kindness and justice" (Bereishis 18:19). Indeed, the Torah describes at length Avraham Avinu's exemplary acts of Chesed (in the beginning of Vayera).

Thus, it was from our three Avos that we inherited these three Midos. (See also Insights to Beitzah 25:2.)


OPINIONS: The Gemara concludes that there were three stages to the Gezeirah against marrying the Nesinim. First, Moshe Rabeinu made a Gezeirah for his generation. Then, Yehoshua made a Gezeirah for as long as the Beis ha'Mikdash stands. Later, David ha'Melech extended the Gezeirah to apply even when the Beis ha'Mikdash would no longer be standing.

The Gemara relates that in the days of Rebbi, the Beis Din wanted to permit the Nesinim to enter the Jewish nation. Rebbi vetoed the proposal on the grounds that the Nesinim are also servants for the Mizbe'ach, and we are not authorized to abolish the Mizbe'ach's share of the Nesinim.

It is not clear from the Gemara exactly what was the nature of the Gezeirah that was enacted against the Nesinim. Was it a Gezeirah of Avdus, that they must be servants, or was it a Gezeirah of Isur, that they may not marry into the Jewish people?

On one hand, the Gemara says that Moshe Rabeinu and Yehoshua made Gezeiros against the Nesinim, and we find only that Moshe and Yehoshua made them servants and not that they specifically prohibited the Nesinim from marrying Jews. Also, Rebbi did not want to permit the Nesinim because they were *property* of the Mizbe'ach and we have no right to take away the property of the Mizbe'ach.

That the Gezeirah was to make the Nesinim into servants has further support by the fact that in the days of Rebbi, the Beis Din wanted to permit them on the basis of the principle of "Hefker Beis Din Hefker" as RASHI says. It does not seem that they wanted to override a decree of a previous generation (since a later Beis Din is not qualified to do that unless it considers itself to be greater than the original Beis Din who created the decree). This implies that the Gezeirah was that they were given over to be servants, and their prohibition against marrying Jews is merely a result of their status as servants.

On the other hand, other sources indicate that the Gezeirah was not to make them servants, but only to prohibit them to marry Jews. The Mishnah (Kesuvos 29a) teaches that when a Nesinah is raped, the perpetrator is required to pay her the fifty Shekel Kenas, while a Shifchah (maidservant) who was raped does not receive the Kenas (even if she was a Besulah at the time of the rape, as Tosfos cites from the Yerushalmi). It must be that a Nesinah is not a Shifchah, and no Gezeirah was issued making the Nesinim into servants. Rather, the Gezeirah was merely to prohibit them from marrying into the Jewish nation.

How do we reconcile these contradictory sources?

(a) TOSFOS (DH Nesinim) cites some who suggest that Moshe and Yehoshua made a decree of Avdus for the Nesinim, but their decree applied only while the Beis ha'Mikdash was standing. David ha'Melech's decree applied after the Beis ha'Mikdash was destroyed, and it did not involve servitude. Rather, he prohibited the Nesinim from marrying Jews because of the bad Midos of the Nesinim.

According to this explanation, why did Rebbi say that we cannot permit the Nesinim because of the "Chelek ha'Mizbe'ach," if today the decree is not one of Avdus but of a prohibition against marrying them?

It seems that Rebbi meant to say that when the Beis ha'Mikdash will be rebuilt, then Yehoshua's Gezeirah of Avdus will apply once again, and the Nesinim will have to be Avadim. If we permit them now to marry into the Jewish nation, then when the Beis ha'Mikdash will be rebuilt we will not know who the Nesinim are who are supposed to be servants of the Beis ha'Mikdash.

According to this explanation, how could the Beis Din in the time of Rebbi propose to remove David ha'Melech's Gezeirah? His Gezeirah prohibited the Nesinim from marrying Jews and was not a Gezeirah of Avdus. We know that a later Beis Din cannot revoke the decree made by an earlier Beis Din unless the later Beis Din is greater than the earlier one in wisdom and in numbers (Beitzah 5a). The answer might be that it is obvious that the Beis Din in the time of Rebbi wanted to permit the Nesinim because their nature had changed, and they no longer had bad Midos. Some Rishonim maintain that when the *reason* behind the earlier prohibition no longer exists or applies, a later Beis Din *may* revoke the Gezeirah without being greater in numbers and wisdom from the earlier Beis Din (see Insights to Beitzah 5:2).

According to this explanation, though, the Gemara's question (79a) is very weak when it asks that David did not make the Gezeirah, but Moshe made the Gezeirah. The Gemara should have answered simply that Moshe made a Gezeirah of Avdus and David made a Gezeirah of Chasnus!

(b) Tosfos cites another explanation that says that Moshe, Yehoshua, and David ha'Melech all made Gezeiros *only* of subservience, decreeing that the Nesinim do domestic labor. However, they obviously were not made into bona fide slaves, like we see from the Mishnah in Kesuvos that we mentioned in our question. (The RASHBA writes that they were indeed bona fide slaves, but since they had no *specific* master, the normal laws that prohibit slaves to marry into Israel did not apply to them.) However, since they made them do menial work similar to slaves, it was appropriate for the to be prohibited to marry into Israel, just like it is prohibited to marry real slaves.

This explains why it is only necessary to prove that Moshe Rabeinu made them work, and not that he specifically decreed that it is Asur to marry them. This also explains how the Beis Din in the time of Rebbi could propose permitting them to marry Jews. The prohibition to marry the Nesinim was only an offshoot of the fact that they were Avadim. Once they are no longer Avadim (because of "Hefker Beis Din Hefker"), there is no longer an Isur to marry them.

According to both of these two first approaches, it is clear that the Isur of "Lo Sischaten Bam" (Devarim 7:3) does not apply to Nesinim. This follows the view of the BA'AL HA'ME'OR (76a) who explains that our Gemara contradicts the apparent conclusion of the Gemara earlier (76a) that Nesinim are prohibited because of the Isur of "Lo Sischaten Bam." Our Gemara favors the opinion that the Isur of "Lo Sischaten Bam" applies only *before* a Nochri from the seven Canaanite nations has converted, but not after conversion. Hence it does not apply to Nesinim, who are converts. (See Insights to Yevamos 76:2.)

Alternatively, only the first generation of converts from the seven nations are Asur, but their children are Mutar. Thus today's Nesinim are Mutar even if the Isur of "Lo Sischaten Bam" applies to a member of the seven nations after Gerus (RAMBAN and RITVA).

Rashi also favors this ruling in a number of places (37a, DH Nesini, Kesuvos 29a; see also Rashi Yevamos 70a DH Mishum Rabeinu and Menachos 43a DH Mishum Zonah). He writes that the Isur of the Nesinim is not related to the Isur d'Oraisa of "Lo Sischaten Bam." (When Rashi writes, in Yevamos 37a, that the Nesinim have a "*sort of* Avdus," he probably is hinting to the second explanation of Tosfos, that there is an Isur d'Rabanan to marry them because of their pseudo-state of Avdus.)

(c) Tosfos cites a third approach from RABEINU TAM. Rabeinu Tam says that our Gemara is consistent with the conclusion of the Gemara earlier (76a) that the Nesinim are Asur mid'Oraisa because of the Isur of "Lo Sischaten Bam." The discussion of Gezeiros in our Gemara involves only the Gezeiros of Avdus, and not of the Isur of Chasnus. Even when the Beis Din in the days of Rebbi wanted to permit the Nesinim, they only wanted to remove their state of Avdus, but they would remain Asur to marry Jews mid'Oraisa. Rebbi protested this, saying that we should not remove their Avdus to the people, lest we forget about their Avdus to the Mizbe'ach when the Mizbe'ach is rebuilt.

According to this, it is clear why the principle of "Hefker Beis Din Hefker" would be able to remove the Gezeirah, since they were only trying to remove the Gezeirah of Avdus. (Even according to Rabeinu Tam, it must be assumed they were not true servants, but only pseudo-servants, and they were not prohibited because to marry into Israel because they were servants -- as we see from the Mishnah in Kesuvos.)

RASHI follows this opinion (and contradicts what he writes in the places we mentioned at the end of (b)) in a number of places (Yevamos 49a, DH u'l'Rebbi Sima'i; 68a, DH Kuti v'Nasin; Makos 13b, DH Nesinah; see also Rashi Sanhedrin 82a DH Ovedes Kochavim).

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