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Yevamos, 101


QUESTION: The Gemara cites a Beraisa that states that if a person is a "Safek Ben Tish'ah l'Rishon, Safek Ben Shiv'ah l'Sheni" (i.e. he is not sure which of two men is his real father) and that person hits both possible fathers at once, he is Chayav. If he hits one after the other, then whether or not he is Chayav depends on the argument among the Tana'im whether "Hasra'as Safek" is considered Hasra'ah.

In what way does the child hit both possible fathers at the same moment? RASHI (DH b'Vas Achas) explains that he takes a long stick, swings it, and hits both men at the same time.

RASHI in Chulin (82b) suggests a more basic explanation of how the son hits both possible fathers at the same time. He simultaneously hits one of the men with one hand, and the other man with his other hand.

RASHI in Makos (16a, DH) offers an even simpler explanation. He hits both possible fathers in the normal manner (with his dominant hand, one after the other), but he does so "Toch Kedei Dibur" -- within a very short amount of time, so that the Hasra'ah serves to be Mechayev him for both beatings.

Why does Rashi give a different explanation in each place for hitting two men at the same time ("b'Vas Achas")? What advantage does each explanation have over the other? (see NEHOR SHRAGA)

ANSWER: Apparently, Rashi had a different problem with each explanation, and in the different Sugyos he chose to explain "b'Vas Achas" in different ways in order to avoid the problems with the other two ways of explaining it. Since each explanation had its own advantage, each time Rashi chose the explanation that he felt was the best explanation at that time. The advantages of each approach may be as follows:

(a) The simplest explanation is that the child hit both men "Toch Kedei Dibur." Rashi's basis for explaining that the two beatings were done "Toch Kedei Dibur" is because we find that the Hasra'ah does not have to come immediately before the act of the Aveirah, but it may come a few seconds before the Aveirah, as long as it is within "Toch Kedei Dibur" of the Aveirah.

Rashi in Yevamos and in Chulin rejects that explanation, because he understands that the Hasra'ah only works "Toch Kedei Dibur" when a single act was done within a few seconds of the Hasra'ah. To be Chayav for a second act, a second Hasra'ah would be necessary, even though that second act was also done "Toch Kedei Dibur." That is why Rashi here and in Chulin does not explain that "b'Vas Achas" means that both beatings occurred within "Toch Kedei Dibur."

(b) The reason Rashi here says that "b'Vas Achas" means that the son uses one stick to hit both men at the same time, and he does not say that the son uses both of his hands to hit both men at the same time, is because using both of his hands would be considered to be two different actions. Even if those two actions happened simultaneously, the Hasra'ah would only apply only to one action. For two actions, two Hasra'os would be necessary.

Alternatively, Rashi holds "Iy Efshar l'Tzamtzem" -- it is not possible for two events to occur at exactly the same time. When the son hit the two men with his two hands, one action had to precede the other, and thus he would not be Chayav for hitting them "b'Vas Achas." When he hits them both with a single swing of a stick, though, it is one action, and for that the Hasra'ah is able to make him Chayav for the two different results of the single action.

(c) Rashi in Chulin says that the son hit the two men with his two hands. Why does Rashi there not say that he hit them both with one stick? Rashi there chose to give the simpler case, which is when he hits them with two different hands, rather than with one stick.

Rashi in Chulin did not feel that there was any way to explain the case according to those who say "Iy Efshar l'Tzamtzem." If one cannot be Metzamtzem, then even hitting two people with a single stick will not cause the Hasra'ah to apply to both hits, since one of the two people inevitably was hit before the other. The fact that the two hits came from a single swing is not sufficient reason for the Hasra'ah to apply to both hits, according to Rashi in Chulin; the fact that they were brought about by the same *swing* does not make them into a single action. Two hits are always called two actions. Since the only way to explain the Beraisa that discusses hitting both at the same time is if the hits occur at the selfsame moment, this Beraisa must hold Efshar l'Tzamtzem.

(The mechanics behind the difference in opinion expressed in Rashi in Chulin and in Yevamos might involve whether Hasra'ah means warning a person not to do a particular *action* (Rashi in Yevamos), or not to do a particular *Aveirah* (Rashi in Chulin). According to the former, a single Hasra'ah can apply to two Aveiros that stem from a single action, while according to the latter it cannot.)

QUESTION: The Gemara attempts to prove whether Chalitzah must be done in the presence of Dayanim who are Mumchim, or whether it suffices to have Dayanim who are Hedyotos. Rebbi Yehudah proves that Hedyotos will suffice from the fact that the verse, "l'Einei" (Devarim 25:9), excludes blind people from being Dayanim for Chalitzah. It must be that Hedyotos suffice for Chalitzah, because if it is necessary to have Mumchim, then we do not need a verse to exclude blind Dayanim, because one of the requirements for serving on the Sanhedrin is that the Dayan Mumcheh be "free of any physical blemish." It must be that Hedyotos will suffice, and that is why the verse has to teach us that they must not be blind in order to serve as Dayanim for Chalitzah.

The Halachah that members of the Sanhedrin may not be blind is a requirement in the Sanhedrin, i.e. the twenty-three judges which adjudicate in cases of Dinei Nefashos, corporal and capital crimes. How, then, is Rebbi Yehudah able to prove from here that Mumchim are not necessary for Chalitzah? We see from here only that it is not necessary to have Dayanim who are fit for judging Dinei Nefashos, but perhaps Mumchim are still necessary, like we find with regard to Dinei Mamonos, monetary matters (see Sanhedrin 2a), where Mumchim are necessary but a blind Dayan is valid! (RITVA)

ANSWERS: (a) The RITVA (and from him, the NIMUKEI YOSEF in Sanhedrin 32b) answers that there is another verse from which we learn that in order to judge Dinei Mamonos, the Dayan must have at least one good eye and he cannot be completely blind (Sanhedrin 34b). Regarding Chalitzah, the verse says "l'Einei," implying that for Chalitzah the Dayan must not be blind in *both* eyes (but he is acceptable if he is blind in one eye). If Mumchim qualified for judging Dinei Mamonos are required, then we already know -- without the verse of "l'Einei" -- that he cannot be blind in both eyes, because that is one of the requirements of Mumchim for Dinei Mamonos. It must be that Mumchim are not required at all for Chalitzah.

Why, then, does the Gemara cite the verse teaching that members of the *Sanhedrin* may not be blind? It should have cited the verse that teaches that a Dayan even for *Dinei Mamonos* may not be blind in two eyes! The Ritva answers that it could have mentioned that verse, but it preferred the Beraisa of Rav Yosef that states that the Dayan must be "free of any physical blemish." The Beraisa means that not only must a member of the *Sanhedrin* be free from all physical blemish (i.e. he must see with both eyes), even a Dayan for *Dinei Mamonos* must be able to see with at least *one* of his eyes.

(b) Many Acharonim cite the Nimukei Yosef and reject his approach entirely, because it is very forced in the Sugya (see VILNA GA'ON in Seder Chalitzah #5; KETZOS HA'CHOSHEN 7:2; see also NESIVUS HA'MISHPAT who defends the Nimukei Yosef, but did not see the Ritva).

The KETZOS HA'CHOSHEN suggests that according to those who require Mumchim for Dinei Mamonos, the Mumchim indeed must qualify for Dinei Nefashos as well. He bases this on the RAMBAM (Hilchos Sanhedrin 4:10) who says that we only give Semichah to a person who is fit to judge even Dinei Nefashos.


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