לזכות אבי מורי ואמי מורתי שיחיו

לרפואת רודעש יהודית בת בריינדל גיטל

לפואת הרב דוד העניך מרדכי בן פרידה שמחה

לרפואת הרב יצחק חיים יחיאל בן אסתר

בתוך שח"י!!

Rabbeinu Chaim Berlin presented the following quagmire:  A man divorces his wife "from now" [מעכשיו] on condition that he is not divorcing her if she is a tzadekes but only if she is a מרשעת [female rasha] and transgresses an עבירה within a certain time period.  Then she marries another man [but doesn't consummate the marriage] and made a neder that she won't eat chocolate. Her second husband revokes her neder [הפרה] and then she eats the chocolate. 

What is the din? If the הפרה takes effect then the food isn't forbidden and she didn't do an עבירה. If so, she remains a tzadekes and the get didn't take effect. But WAIT! If the get didn't take effect then she is still married to the first man and not the second, meaning that the הפרה was invalid [because the person doing it wasn't her husband] and it turns out that she violated her neder and thereby committed an עבירה making her a מרשעת!! 

AHHH - She is a מרשעת? Well then, the get is valid and she is really married to the second man. THAT would mean that the הפרה was valid and she did no sin by eating the chocolate. No sin?? OK - She is a tzadekes and still married to the first man. She is still married to the first man? No הפרה and she did a serious עבירה by eating the chocolate and the get is valid and she is married to the second man. She is married to the second man? The הפרה is valid and she is a tzadekes and married to the first man. 

And we go round and round and round!!  

Rav Avraham Genechovski ztz"l suggested a more pashut case: A man divorces his wife on condition that she is a מרשעת. She married man #2 and has ביאה. Is she a מרשעת for having this ביאה? Well - if the get was valid then she is cool. But if the get was not then she was מזנה with man #2. If we say that the get was valid and she may have ביאה with man #2 then it turns out that she is a tzadekes meaning that the get is invalid and she is still married to man #1. That would make her a מרשעת for having ביאה with man #2 which would in turn validate the get. Valid get? She is a tzadekes and married to man #1. Married to man #1? OOOHHHHH is she wicked for being with man #2! Wicked? Then she is really married to man #2 and she is a tzadekes. Tzadekes? Ahhhhh - married to man #1. 

And we go round and round and round!!  

Tosfos in Gittin [פ"ג. ד"ה ועמדה] says that if one divorces his wife on condition that she doesn't marry Ploni and she goes ahead and marries Ploni [just to keep things interesting...] - she is not married to Ploni. The rationale is that if we say that she is married then that will mean that she is not married because her original גט will be בטל and she will be married to the first man. A married woman can't get married to a different man. 

Then again, once we say that she is not married to Ploni that means that her גט was valid which means that she can now marry Ploni, so the marriage to Ploni is valid. But when we say that her marriage to Ploni is valid then that will mean that her original גט was no good and thus she is still married to her first husband and not to Ploni. But if she isn't married to Ploni then it turns out that her גט IS valid, making her marriage to Ploni valid. But that will mean that her גט is no good and thus her marriage to Ploni is off. No Ploni? Then she is once again divorced making her marriage to Ploni a good one. 

AND ROUND AND ROUND. 

POOOOOOR PLONNIIIIIIII!!! AZOI FARDREIT [מסובב and dizzy!].

Talk about a COMPLICATED on-off relationship....

But here we have a הכרעה in Tosfos that we DON'T go round and round but that the marriage never gets off the ground [like it seems to happen sometimes when we are stuck in an airplane that won't take off]. The reason is that you can't have a חלות that is סותר itself.  Saying she is married means, willy nilly, that she is not married. It never starts. 

Rebbe Meir holds [.כתובות נ"ו] that if one married a woman on condition - "על תנאי" in Spanish - that he doesn't have to provide her with שאר כסות ועונה - food, clothing and relations, she is מקודשת and the conditions are cancelled. He explained his reasoning that the rule is that one may not make conditions on Torah law - המתנה על מה שכתוב בתורה תנאו בטל. This implies that if not for that rule the conditions would be in force AND they would be married. How can this be? We find that conditions are effective that if not met, the מעשה upon which they were predicated is invalid. But we find nowhere that the מעשה is valid when the conditions are not met, so what is going on here?! 

Rebbe Shimon Shkop ztz"l [the linked sefer written by a friend of mine] explains based on our Tosfos!! If you say that the חיוב of שאר כסות ועונה is in force, that will mean that there is no Kiddushin [because of his תנאי] and thus the חיוב of שאר כסות ועונה is NOT in force. But you can't have a חלות that is סותר itself and that is what would result. So instead, the חיוב of שאר כסות ועונה never starts and they are married. The only thing is that the rule is that if one makes a תנאי to abrogate Torah law, the תנאי doesn't take effect, so his attempt to avoid שאר כסות ועונה was unsuccessful and all he is left with is a wife sans [no relation to Kiryat "Tzanz"] the condition.   

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The Gemara says that if a male animal mounted a Parah Aduma for mating, it is unfit for use in the purification ritual. עלה עליה זכר - פסולה!

Asked Tosfos:

וא"ת ועלה עליה זכר אמאי פסולה הא ודאי לא ניחא ליה להפסיל פרה שדמיה יקרים בשביל דבר מועט

When a male mated with it, why is it Pasul? Surely he is not pleased that his Parah, which is very valuable [when it is Kosher], be disqualified for a small matter!

וי"ל דאם היתה כשירה הוה ניחא ליה ולכך אין להכשיר

Answer: If it would be Kosher, he would be pleased. Therefore, we are not Machshir it.

BUT WAIT!!! If we are not מכשיר the פרה if the male mounted it, then he is not pleased - לא ניחא ליה - and therefore it should be kosher! Ahhh - it remains kosher? So he is pleased with it - ניחא ליה!! Ahhh - ניחא ליה? It is פסול! Pasul? It is not ניחא ליה! Not ניחא ליה? Kosher!! Kosher? He is ניחא ליה! Ahhhh - ניחא ליה? Pasul.... 

So really this is a endless cycle. So how can Tosfos decide that "ניחא ליה" and it is פסול? Why be machmir? Why be such a Brisker?? 

Explained the Ponovitcher Rov - Tosfos isn't being מכריע to one side. It is a cycle and each side brings the other. The only thing is that in order to be מכשיר, we need a DEFINITIVE "לא ניחא ליה" and THAT - we don't got [sorry for the English - spent a lot of time playing basketball with chevre who would speak that way]. 

NOTE: Tosfos doesn't say that it is פסול - just that we can't be מכשיר.  

Listen here for a GEVALLLLLDIIKKKEEEEEE Munkatcher proof [from a Torah journal printed in 1922 - the year that Readers Digest was created and the NY Giants ("ענקים מנוי יורק") didn't win the Super Bowl - because there was no Super Bowl back then - but the World Series. They beat the Yankees. The Munkatcher was NOT a Yankees fan so he didn't care] for a different yesod - when we have a גלגל החוזר - endless cycle when היתר brings איסור which brings היתר etc. we are מחמיר when it comes to דיני דאורייתא. [What a stroke of mazel that I found a shiur that talks about this topic!! 😊😊].  

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The Rambam paskens that Chometz on Pesach that gets mixed in with other food is not בטל because it is a דבר שיש לו מתירין - something that will become permitted in the future [for which there is no ביטול]. 

FREGT the Acharonim - Is this true?? After Pesach it will be חמץ שעבר עליו הפסח and will thus be אסור?! So it is NOT a דבר שיש לו מתירין at all and ביטול should apply!  

Said Ha-Gaon Rebbe Avraham Price [this is one of his AMAZING sfarim]: It is actually a cycle - גלגל החוזר: If we say that it is not בטל in a mixture, then it is אסור after פסח [as חמץ שעבר עליו הפסח]. If it is אסור after פסח then it is not a דבר שיש לו מתירין and should be בטל and thus מותר both during and after פסח. If you say that it is מותר after פסח then it is a דבר שיש לו מתירין which means that it is not בטל and אסור. If it is אסור then it is NOT a דבר שיש לו מתירין making it בטל and מותר. It is going to be מותר? Then it is אסור in which case it then becomes מותר making it then אסור etc. etc. 

As we saw - safek di-oraisa we are machmir.

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The great Litvishe Gadol the Achiezer, Rav Chaim Ozer Grodzinski [4-94] wrote that if the Sotah was given her Mincha on condition that she not be מפגלת, if she is מפגלת then it will turn out that she didn't keep the condition and the Mincha was thus not hers and one has no right to be מפגל a Korban belonging to someone else. However, if we say that she wasn't successful in being מפגלת the Korban then it turns out that it WAS her Korban. But if it was her Korban then the פיגול takes effect. 

So we go round and round ad infinitum. 

So therefore we say that since if she is מפגל there is no פיגול - there is no פיגול and the Korban is hers. As we said - you can't have a חלות that contradicts itself. 

The great Chasidic Rebbe the Divrei Chaim concurs [ח"ב או"ח ט"ז]!! 

So this is a BI-PARTISAN issue!! 

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Tosfos write [שבת ק"ו. ד"ה וחובל] that מלאכת חובל [wounding] must be לגופה [for the sake of the blood] but if he doesn't need the blood, such as if the blood is אסור בהנאה, then it is called a מלאכה שאינה צריכה לגופה and permitted [מדאורייתא]. 

However, if a person didn't know that the blood was אסור בהנאה it is considered צריכה לגופה but nevertheless he is פטור because he is מקלקל [destructive], since למעשה he has no use for the blood and can't give it to his dog [he lives on the Upper West Side where there is a 5-1 ratio of dogs to people]. 

Now let's see - said HaGaon Rebbe Avraham Genechovski! Even in an instance when it wasn't originally אסור בהאנה, nevertheless it may be permitted to use because it was extracted with a מקלקל - for if מלאכה was done בשבת the מעשה שבת made it אסור and if so it is מקלקל [if he could only give it on Shabbos when it is still אסור]. However, if it was מקלקל then it is not אסור because of מעשה שבת - and if so it is a תיקון. And if it is a תיקון then it is אסור because of מעשה שבת in which case it is מקלקל and thus מותר. Ahhhhh - מותר? Then it is a תיקון and thus אסור. 

And round and round and round.... 💿💿

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If a woman says to her husband "טמאה אני לך" - "I am forbidden to you" [because of an act of infidelity], she is not believed because we suspect that maybe she has her eyes on another man ["נתנה עיניה באחר"] and in order to get a divorce from her husband she made up a story. Therefore she is permitted to him and remains married. 

FREGT the Baruch Taam, that since we say that she is permitted to him, if so we have no reason to believe that she made up a story to get a divorce. That being the case - she has nothing to gain from making up a story so she should be believed and thus אסורה! Ahh - she is believed? Then she should be מותרת to him because we once again suspect that she has her eyes on another man. But then again - she SHOULD be believed and אסורה because she has no reason to make up a story. 

And we go round and round and round. 💿

The איסור brings the היתר which brings the איסור which brings the היתר. 

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 Tosfos [Shabbos 104b] says that if one writes on top of an already existing כתב it is not considered כתב and he is פטור on Shabbos. However, if the second כתב ADDS to the first כתב like a גט where the first כתב was written שלא לשמה and the second כתב was לשמה, then the second כתב is considered כתב and one is חייב on Shabbos. 

The Minchas Chinuch [מצוה ל"ב אות ל"ד] says that this makes sense if he writes בשוגג but what about when he writes במזיד? If the second כתב is valid then the writer is a רשע because he was מחלל שבת במזיד and then the גט is invalid because he has a דין of a גוי who can't write לשמה. Now that the גט is invalid it turns out that he has not been מחלל שבת because כתב על גבי כתב is not considered writing. If so the גט IS valid. If the גט is valid then it turns out that he WAS מחלל שבת which would in turn make the גט invalid. Invalid? He is not a מחלל שבת and the גט is kosher. Kosher גט? He is a מחלל שבת ...

AD INFINITUM!!