GEMARA KIDDUSHIN – PEREK BET
Shiur #03: "Ma Atem Benei Berit… "
by Rav Yair Kahn
Translated by David Silverberg
1. 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 berit… Even a servant or maidservant can become agents, since they have intelligence and are included in some mitzvot."
2. 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 minor… 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.
3. 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.
4. 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:
1. Kiddushin 42a "v-ela ha d-amar ... tikachu."
B.M. 71b "Ikah d-amri ... l-chlal shlichut."
2. Tosafot Ketubot 11a s.v. matbilin, Ran Kiddushin [16b in pages of the Rif] s.v. Garsi]
3. Ktzot 105/1 "omnam hatosafot l-shitatam ... v'kvar he-erachnu."
4. Gittin 52a '"yitomin ... l-haniach"
Tosafot 40b s.v. ve-katav, Rashba 52a s.v. 'matni.'
1. The gemara offers three suggestions regarding what halakha is derived from "nasi echad." Is there a relationship between them?
2. What halakhic mechanism allows someone who wasn't appointed as a shaliach to acquire on behalf of another?
3. According to Torah law can one acquire on behalf of a minor, if it is clearly to his benefit?
4. How can an apotropis separate teruma even though he was not appointed as a shaliach?