GEMARA KIDDUSHIN ľ PEREK BET
Shiur #03: "Ma Atem
Benei Beritů "
by Rav Yair Kahn
Translated by David
The Exclusion of a non-Jew
According to the conclusion of our sugya, we derive the concept of
"shelichut" from two halakhot where the possibility of shelichut is introduced:
the slaughtering of sacrificial animals and the conferral of gittin. The verse that indicates the
viability of shelichut for the separation of teruma, the Gemara concludes,
introduces a different halakha relevant to the institution of shelichut,
formulated by Rabbi Yannai: "'Gam atem' ['you, too,' which applies a
relationship between the agent and his dispatcher, teaches that] just as you are
benei berit, so must your agents be benei berit."
This extrapolation establishes the restriction of shelichut to those
defined as "benei berit," literally, "members of the covenant." Anyone excluded from this group of
benei berit cannot serve as a sheli'ach.
An eved kena'ani (gentile servant, who undergoes partial conversion upon
his acquisition by his Jewish master), therefore, can serve as a sheli'ach by
virtue of his inclusion within the category of benei berit, despite the fact he
is not defined as a Jew. Conversely,
a gentile, who is not considered a ben berit, cannot execute shelichut even with
respect to matters that apply to him as well as Jews. Therefore, even though a gentile can
designate produce from his own crop as teruma, he cannot do so on behalf of a
Jew. The Rambam, in Hilkhot
Sheluchin ve-Shutafin (2:1-2), adds that those outside the category of benei
berit are excluded entirely from the institution of shelichut. Thus, just as they cannot serve as
agents, they can likewise not appoint another to serve as their sheli'ach:
"A gentile cannot
become a sheli'ach for any matter, and neither can he appoint another to be a
sheli'ach for him, as it says, 'So shall you, too, set aside [teruma]' - just as
you are benei berit, so must your agents be benei berit. This applies to [all halakhot in] the
entire Torah. And just as your
dispatchers are benei berit, so, regarding [all the halakhot in] the entire
Torah, must the dispatcher be a ben beritů Even a servant or maidservant can
become agents, since they have intelligence and are included in some mitzvot."
Shelichut of a Mumar
There is room to inquire as to the status of a mumar (apostate) in this
regard. With respect to several
halakhot, a mumar shares the same status as a gentile (see Rambam, Hilkhot
Shechita 4:14). On the other hand, a
basic principle establishes that "a Jew is a Jew even if he has sinned" (see
Sanhedrin 44a). Regarding "ishut"
(marriage law) a mumar is clearly considered a Jew, as the Rambam codifies
(Hilkhot Ishut 4:15): "If one betroths a gentile woman or maidservant - there is
no betrothal. Rather, she is the
same after the [attempted] betrothal as she was before the betrothal. Similarly, if a gentile or servant
betrothed a Jewish girl, their betrothal is not a [valid] betrothal. If a Jewish apostate betrothed - even
if he willingly worships idols, the betrothal is perfectly valid and she
requires a get from him [to be allowed to marry another man]." Our question yields an important
halakhic ramification. If a mumar is
not considered a ben berit, and he is thus excluded from the institution of
shelichut, then he cannot appoint a shaliach.
Thus, if a husband becomes an apostate, Heaven forbid, and he refuses to
take the trouble to give his wife a get, she or her shaliach must receive the
get from him personally, not from his agent.
The Shiltei ha-Gibborim (Masekhet Gittin 12a in the Rif's glosses, 1)
cites the following comment from the Ri'az: "The Rambam wrote that a Jew who
became an idolater or publicly desecrates Shabbat is considered a gentile with
respect to all matters. But we have
already explained in 'Kuntras ha-Re'ayot' that his betrothal and divorces are
valid like [those of] a full-fledged Jew.
Just as he releases his wife with a get, even though he married her when
he was a proper Jew, so may he execute shelichut with regard to a get for the
wife of a proper Jew." Thus, the law
concerning a mumar's inclusion within shelichut is subject to a dispute among
the Rishonim. The Ri'az maintains
that halakha does not exclude a mumar from shelichut, but he understood the
Rambam as drawing a total equation between a mumar and a gentile, and thus the
former, too, cannot serve as a shaliach.
However, a closer look at the Rambam's comments reveals that in truth,
they bear no relevance to our discussion.
He writes (Hilkhot Geirushin 3:15): "Everyone is qualified to write a get
except for five [groups of people]: a gentile, a servant, the deaf, the mentally
disabled, and a minorů A Jew who turned to the apostasy of idolatry or who
publicly desecrates Shabbat is like a gentile for all matters." The Rambam here discusses the writing
of a get, not bringing a get to a woman.
With regard to the writing of the get, most Rishonim agree that this
responsibility is not charged specifically on the husband, and we therefore do
not need to employ the institution of shelichut to allow others to write a get
(see Tosefot, Gittin 22b s.v. "ve-ha").
The Rambam there explains that a gentile is disqualified for this task
because he does not write "li-shma" (with the required intention): "Why may
these five not write [a get]?
Because the writer must have in mind as he writes the man who divorces and the
woman who is divorced, and the gentile writes with his own intentions" (ibid.,
halakha 16). Presumably, then, a
mumar, too, would be disqualified from writing a get because he is similar to a
gentile in this regard. This is the
understanding of Rav Chayim (Hilkhot Tefillin 1:15).
In light of this, the Rambam's comments provide no proof regarding our
issue. It would seem, then, that we
have only the Ri'az's view, that a mumar is, in fact, included in shelichot. In actuality, however, the Ri'az's
comments themselves do not justify such a ruling.
If we review the aforementioned passage carefully, we will notice that he
proved (in his "Kuntras ha'Re'ayot") only that a mumar can effect kiddushin and
geirushin - he can betroth and administer a divorce. From here he concludes that a mumar
may therefore serve as a shaliach for the transmission of a get. But if we do not consider a mumar
under the category of benei berit, then we must exclude him entirely from the
realm of shelichut, even with regard to halakhot that apply to him - such as
gittin! Indeed, as mentioned, our
sugya explicitly excludes gentiles from the institution of shelichut even with
respect to teruma.
In Sanhedrin 72b, the Gemara formulates the warning to be issued to
someone pursuing another with the intent of killing him: "See that he is a Jew
and he is a ben berit, and the Torah stated, 'Whoever sheds the blood of man, by
man shall his blood be shed'."
Tosefot there address the seeming redundancy latent in the clause, "He is a Jew
and he is a ben berit": "He is a Jew and not a gentile; he is a ben berit and
not a mumar who accepted idolatry."
As the Magen Avraham (O.C. 189) notes, these comments strongly imply that a
mumar is not classified as a ben berit.
On this basis, the Magen Avraham concluded that a mumar is excluded
entirely from the institution of shelichut.
He then proceeds to call into question a comment of the Rema (E.H.
141:33) equating a mumar with those whom the Torah disqualifies from serving as
witnesses due to their having violated certain transgressions.
This equation implies that a mumar can
serve as a shaliach. How can he
serve as a shaliach if, as Tosefot imply, he is not classified under the
category of ben berit? The Magen
Avraham answers that the Rema spoke there only of a "mumar le-tei'avon," one who
violates the Torah out of lack of self-control, as opposed to a "mumar
le-hakh'is" - one who acts with the deliberate intention to rebel. The former retains his status as a
ben berit and hence is included within the realm of shelichut, while the latter
cannot serve as a shaliach, as he cannot be considered a ben berit.
The Even ha-Ozer argues and includes even a rebellious mumar within the
institution of shelichut. He
explains the verbosity of the aforementioned passage in Masekhet Sanhedrin
differently than did Tosefot: "If not for the comments of Tosefot in Masekhet
Sanhedrin I would have said... that they said 'he is a ben berit' in order to
include an eved kena'ani... Now that we have resolved Tosefot's difficulty, it
stands to reason that a mumar is considered a ben berit." He then adds that even should we
accept Tosefot's claim that a mumar is not classified as a ben berit, we should
nevertheless not exclude him from shelichut.
He provides the following explanation: "That which they said, 'Just as
you are benei berit... a servant is also a ben berit.... ' At first glance it appears difficult
to understand: why should one include [in shelichut] a servant, since he is
considered a ben berit, and exclude a mumar?
Perhaps we should do just the opposite - include a mumar, who is a
Yisrael, and exclude a servant, who is not a Yisrael! Additionally, perhaps we should
require both - that one be both a Yisrael and a ben berit. Clearly, then... we include a servant
who is equal to a Yisrael insofar as he is a ben berit, and we also include a
mumar, who is a Yisrael. We exclude
only a gentile, who is neither a ben berit nor a Yisrael." Thus, the authorities debate the
issue of whether or not a mumar can serve as a shaliach.
The Dual Nature of Conversion
In order to explain the position of the Magen Avraham, that a mumar does
not qualify as a ben berit and thus cannot serve as a shaliach, let us first
examine the Rambam's comments in Hilkhot Issurei Bi'a (12:11): "Servants who
immersed for the purpose of becoming servants [of a Jew] and accepted upon
themselves the mitzvot in which servants are obligated are divested of the
status of gentiles, but have yet to take on the status of Jews. Therefore, a maidservant is forbidden
to a free man." This requires some
explanation. How should we
understand the fact that these servants "are divested of the status of gentiles,
but have yet to take on the status of Jews"?
What is the meaning of this partial conversion of the servant?
The Rambam writes the following in the next chapter in Hilkhot Issurei
Bi'a (13:14-15): "Do not think that Shimshon, the savior of Israel, or Shelomo,
the king of Israel, who was called 'the beloved of God,' married foreign,
gentile women. Rather, the truth of
the matter is as follows: The proper procedure is that when a male or female
convert comes to convert, we check him to see if perhaps he has come to join the
religion because of money that he will receive or for a certain position that he
will attain, or because of fear. If he is
a man, we check him to see if he desired a certain Jewish woman, and if she is a
woman, we check to see if perhaps she desired a man among Jewish men. If no ulterior motive is found, we
inform them of the weight of the yoke of Torah and the burden involved in its
performance among the masses, in order that they will renege. If they accepted and did not retreat,
and we saw them return [from idolatry] with love, we accept them, as it says,
'She saw how determined she was to go with her, and she ceased to argue with
her.' Therefore, the court did not
accept converts throughout the period of David and Shelomo: during the time of
David - lest they returned out of fear; during the time of Shelomo - lest they
returned because of the kingship and the goodness and greatness with which
Israel lived, for whoever returns from idolatry for any of the vanities of the
world is not among the righteous converts.
Nevertheless, there were many converts who converted during the period of
David and Shelomo before untrained [courts].
The High Court was suspicious of them: they did not reject them, as they
had, after all, immersed [for purposes of conversion], nor did they embrace them
[and consider them Jews] until they would see what would eventually happen." The Rambam here implies that should
it turn out that a certain convert converted for ulterior motives, his
conversion is void. The High Court
was therefore suspicious of all those who converted during the times of David
and Shelomo until they ascertained how they ultimately turned out as a way of
verifying the initial motivation.
However, from the continuation of his comments (16-17) it becomes clear
that this is not what the Rambam intended: "Since Shelomo converted women and
married them, and Shimshon, too, converted [women] and married [them], and it
was known that these [women] returned [from idolatry] only for a specific
motive, and they were not converted by the authorization of the court, the
Scripture considered them gentiles who remained forbidden [for a Jew to marry]. What more, the way they turned out
proved their initial motives, for they worshipped their gods and built for
themselves private altars, and the Scripture considered him [Shelomo] as having
himself built them, as it says, 'Then did Shelomo construct an altar.' A convert who was not checked or was
not informed of the commandments and their punishment, and was circumcised and
immersed in the presence of three standard judges is a convert, even if it
becomes known that he converted for some ulterior motive. Since he was circumcised and
immersed, he is divested of the status of gentiles, and we are suspicious of him
until his righteousness is affirmed.
Even if he again worships idols, he is like a Jewish apostate whose betrothals
are valid and whose lost items there is a mitzva to return. Since he immersed, he becomes the
same as a Jew. Shimshon and Shelomo
therefore kept their wives even though their true nature was revealed." The Rambam thus establishes that
Shimshon's and Shelomo's wives converted for ulterior motives, as evidenced by
the way they turned out.
Nevertheless, by virtue of their having been circumcised and immersed, the wives
were no longer considered gentiles.
Although they ultimately worshipped idols, they were considered like a Jewish
mumar, and their marriages to Jews were valid.
It would thus appear that geirut (conversion) consists of two halakhot. On the one hand, a convert accepts
upon himself the yoke of mitzvot, and he thereby joins the nation chosen through
the covenant of the Torah. Even an
eved kena'ani who immerses for purposes of servitude to a Jewish master and thus
assumes the mitzvot obligated upon Jewish women, divests himself of his gentile
status by joining this covenant. On
the other hand, a convert also becomes part of Am Yisrael. It is not enough for him to declare,
"Your God is my God"; he must also proclaim, "Your nation is my nation."
Complete conversion entails both the acceptance of religious
responsibilities as well as joining the nation.
In some situations, however, the conversion cannot take effect
completely. For example, an eved
kena'ani does not join Kenesset Yisrael on the social plane. He does, however, lose his gentile
status by taking upon himself the yoke of mitzvot and joining the covenant. He nevertheless does not join Kelal
Yisrael in the national sense. The
converse situation arises in the case of the one who converts for ulterior
motives. Though the prospective
convert wishes to join Am Yisrael for various reasons, this wish involves no
religious intent. Such a conversion
thus does not bind the convert to the covenant.
In light of this, we can understand the Rambam's assessment of the eved
kena'ani, that by immersing for purposes of servitude and accepting those
mitzvot incumbent upon servants, he is no longer classified as a gentile. Nevertheless, he has yet to be
included within Kelal Yisrael and may not marry a Jewish woman. Meaning, the institutions of marriage
and divorce, and the permission to marry a free Jewish woman, depend on his
joining Am Yisrael. The Rambam
therefore vindicated Shimshon and Shelomo despite their wives' having converted
with ulterior motives, without having accepted the yoke of mitzvot. According to our approach, their
desire to join the covenant of fate that joins together Am Yisrael resulted in
their partial conversion. As such,
the laws of marriage and divorce applied to them.
Nevertheless, the verses considered them pagans due to their failure to
join the covenant of destiny based upon the acceptance of the yoke of divine
kingship. As the Rambam writes,
"Even if he again worships idols, he is like a Jewish apostate whose betrothals
are valid." Clearly, the Rambam
speaks here not of a full-fledged convert who later becomes an apostate, but
rather of partial conversion that lends a status similar to that of a mumar.
The Status of a Mumar
Thus, when we come to assess the status of a mumar, we must take into
account these comments of the Rambam, by which it appears that a mumar has the
status of a gentile only on the religious plane.
At the same time, a Jew belongs to Kenesset Yisrael even if he sinned,
and his betrothals and divorces are thus halakhically binding.
With regard to shelichut, the sugya in Masekhet Gittin (23b) raises the
possibility that a shaliach must belong to Am Yisrael: "What is the reason? Is it not because it is written,
'you, too' - just as you are Jewish, so must your agents be Jewish?" According to this theory, an eved
would not be included in shelichut, as he has not joined Am Yisrael at the
national level. But the Gemara
concludes, "No; just as you are benei berit, so must your agents be benei
berit." In other words, the
possibility of shelichut depends specifically on the "berit," the covenant, or
the religious plane. Therefore, an
eved is indeed included within the realm of shelichut.
Accordingly, it stands to reason that, as the Magen Avraham claims, a
mumar is excluded from shelichut. As
we have seen, a mumar is considered Jewish only in the national sense; from a
religious perspective, he has removed himself from the nation. Thus, despite his classification as a
Jew, he is not considered a ben berit.
Nevertheless, there is room for the contention of the Even ha-Ozer, that,
according to the Gemara's conclusion, shelichut takes effect so long as some
connection exists between the shaliach and his dispatcher. Therefore, the connection established
by the ben berit status of an eved, who has yet to attain the status of a
full-fledged Jew, suffices.
Similarly, the connection established by the national affiliation of the mumar
is sufficient, despite his exclusion from the status of ben berit. So long as we can apply the principle
of "you, too," as some connection exists between the meshalei'ach and shaliach,
shelichut can take effect.
Therefore, only gentiles, who are neither Jews in the national sense nor benei
berit, are entirely excluded from the halakha of shelichut.
Sources and questions for next week's shiur #4:
Kiddushin 42a "v-ela ha d-amar ... tikachu."
B.M. 71b "Ikah d-amri ... l-chlal shlichut."
Tosafot Ketubot 11a s.v. matbilin, Ran Kiddushin [16b in pages of the
Rif] s.v. Garsi]
Ktzot 105/1 "omnam hatosafot l-shitatam ... v'kvar he-erachnu."
Gittin 52a '"yitomin ... l-haniach"
Tosafot 40b s.v. ve-katav, Rashba 52a s.v. 'matni.'
The gemara offers three suggestions regarding what halakha is derived
from "nasi echad." Is there a
relationship between them?
What halakhic mechanism allows someone who wasn't appointed as a shaliach
to acquire on behalf of another?
According to Torah law can one acquire on behalf of a minor, if it is
clearly to his benefit?
How can an apotropis separate teruma even though he was not appointed as