The Israel Koschitzky Virtual Beit Midrash

Surf A Little Torah
Yeshivat Har Etzion

by Rav David Silverberg

Towards the beginning of Parashat Ki-Tetze, the Torah sets forth the procedures concerning "harugei Bet-Din" – those sentenced to execution by the court. The Torah requires that the culprit be hung after execution (21:22), but forbids allowing the body to remain on the gallows beyond the day of the execution (21:23).

The Vilna Gaon noted a syntactical peculiarity in the Torah's introduction of these laws. The verse literally reads, "Should there be for a man a death sentence for a sin, and he is killed… " Oddly, the Torah appears to focus on the sentence, rather than the act of violation. We would have expected the Torah to describe the individual as having committed a capital offense, rather than there "being a death sentence for a sin." This formulation seems to emphasize the technicality of the death sentence, rather than the gravity of the forbidden act committed. The Gaon also takes note of the fact that this verse employs the term "chet" in reference to the sin violated. Very often, this term refers specifically to a case of "shogeig" – a sinful act that resulted from a misjudgment or oversight. This usage is very problematic in the context of a court execution, which obviously occurs only for intentional, willful transgressions.

These two subtleties led the Vilna Gaon to arrive at a novel and fascinating understanding of these verses. He claimed that the Torah here speaks of a sinner who genuinely repents after his sentencing. The Gemara teaches that when an individual repents out of a sense of fear of judgment, then "zedonot na'asin lo ki-shgagot" – his intentional violations are considered by God as inadvertent transgressions. Though he has yet to reach the ultimate level of teshuva, at which point "zedonot na'asin lo ki-zkhuyot" – his violations actually transform into merits, he nevertheless earns a limited form of atonement whereby his guilt is reduced to that of a careless, rather than intentional, misdeed. According to the Gaon, the Torah here requires executing and then hanging a violator even if he performs teshuva. Though at first glance this may seem cruel and heartless, its underlying rationale is obvious. A provision suspending capital punishment for penitent transgressors in effect undermines the entire system of capital punishment, as virtually anyone sentenced to death could display external signs of remorse and thereby escape execution. The Torah therefore ordered the Beit-Din to administer punishment after verifying guilt regardless of any expressions of remorse on the part of the culprit, and the Almighty, who sees and knows the thoughts of man, will determine the sincerity of his repentance and judge his soul accordingly. This explains why the Torah focuses on the technicality of the death sentence, rather than the gravity of the act, and why it employs the term generally used in the context of unintentional violations.

Rav Yehuda Leib Ginsburg, in his "Yalkut Yehuda," observes that the Gaon's approach perhaps lends new meaning to the Rashbam's comments to these verses. The Torah writes that the violator's remains must not remain hanging overnight "for a hanged person is a curse to God." Different approaches have been taken to explain this phrase. The Rashbam claims that the term "Elokim" ("God") here refers not to the Almighty, but rather to judges. The Torah requires removing the body from the gallows lest the spectacle of a hanging body breed public resentment over the execution. Although displaying the violator's remains has the effect of deterring potential sinners, it also runs the risk of generating public sympathy for the perpetrator and opposition to the court's harsh treatment of him. For this reason, the Rashbam explains, the Torah forbids allowing the body to remain hanging overnight, and this is what is meant by the phrase, "for a hanged person is a curse to 'elohim'." The spectacle of a hanging man whom the court had executed could result in widespread condemnation of resentment towards the Beit-Din.

If the Gaon is correct in interpreting this entire discussion as referring to a penitent sinner, then the Rashbam's approach becomes even more compelling. When then convicted sinner expresses remorse and performs teshuva, the execution is even more likely to draw strong opposition and thus undermine the court's prestige and authority. Particularly in such a situation, then, it is critical for the Beit-Din to remove the hanging body and thus limit any damage done to its image in the eyes of the public.

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Among the many laws mentioned in Parashat Ki-Teitzei is the obligation to follow the Torah's guidelines concerning tzara'at (a leprous-type of skin infection). The verse states, "In cases of skin affection, be most careful to do exactly as the levitical priests instruct you" (24:8). Chazal, as cited by Rashi, interpret this verse as presenting the prohibition against surgically removing an area of skin infected by tzara'at. A person stricken with the illness must follow the instructions of the kohanim, as outlined in Parshiyot Tazria-Metzora, as to when an infection renders the person tamei and how this status is removed. He may not attempt to circumvent these rules by simply severing the infected area. The question, however, arises as to why the Torah formulates the prohibition in this manner. Rather than stating explicitly that one may not sever an area of infected skin, the Torah instead warns against deviating from the kohanim's instructions. Why doesn't the Torah introduce this prohibition in a more direct and forthright manner?

The answer perhaps emerges from the connection between this verse and the mitzva presented immediately thereafter: "Remember what the Lord your God did to Miriam on the journey after you left Egypt." This of course refers to the incident narrated in Sefer Bamidbar (chapter 12), where Miriam is stricken with tzara'at as punishment for her having inappropriately spoken against her brother, Moshe. The commentaries explain that this verse serves as the basis for the famous principle that lashon ha-ra (negative speech about others) is punished with tzara'at. The Torah juxtaposed the laws of tzara'at with the incident involving Miriam to allude to this basic connection between the sin of lashon ha-ra and the punishment of tzara'at.

What remains unclear, however, is why the Torah chose to associate specifically the prohibition against "mekatzetz beharto" (severing a tzara'at infection) with the story of Miriam. The Torah recalls Miriam's tzara'at not in the general context of tzara'at, but particularly in relation to this admonition against surgically removing leprous skin. How does this detail of hilkhot tzara'at relate to the incident of Miriam?

The standard approach to understanding Miriam's sin is that she failed to recognize the unique stature of her brother. As Rashi explains in Parashat Beha'alotekha, Miriam questioned the need for Moshe to separate from his wife, arguing that all Benei Yisrael possessed some prophetic quality and yet were not required or even advised to abstain from marital relations. She rhetorically asks, "Has the Lord spoken only through Moshe – has He not spoken through us, as well?!" (Bamidbar 12:2). She mistakenly felt that whatever standards suited Benei Yisrael suited Moshe, as well. This reflected a fundamental misconception of religious leadership, a failure to recognize the singular greatness of religious giants such as Moshe. True, the rest of the nation was permitted and in fact encouraged to resume normal, marital life after the Revelation at Sinai, but Moshe's unique prophetic stature necessitated this drastic, extraordinary measure of separating from his wife.

Herein, perhaps, lies the connection between the story of Miriam and the prohibition against "mekatzetz beharto." As mentioned, the Torah introduces this prohibition in theform of an obligation, insisting that a person stricken with tzara'at heed the instructions of the kohanim. The prohibition, then, is not the actual severing of the infection, but rather the attitude towards this situation that such action reflects. Rather than humbly submitting to and accepting the kohanim's authority, this individual arrogantly presumes the right and the ability to deal with the situation independently. This constitutes a rejection of the kohanim's authority, if not religious authority altogether. Such an individual repeats the sin of Miriam, as he demonstrates his belief that the religious leadership is not so different from the rest of us. Just as Miriam questioned the singular status of her brother, so does this metzora deny the unique stature of the kohanim and refuse to place himself under their authority. These two adjacent verses thus underscore the importance of humble acceptance of religious authority, and the grave mistake made when one presumes total equality between all members of the religious community.

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The Torah in Parashat Ki-Teitzei discusses several laws concerning proper conduct in a military setting. Specifically, the Torah requires that soldiers who become tamei as a result of a semenal emission leave the camp, and secondly, that the soldiers must go outside the camp to perform their bodily functions (23:10:15).

This section begins, however, with a more general admonition: "When you go out as a troop against your enemies, be on your guard against anything untoward." Rashi briefly explains, "For the Satan prosecutes during times of danger." According to Rashi, the Torah here advises soldiers to exercise particular care in the military camp because of the dire consequences at stake. God's judgment is somewhat stricter in situations of danger, and it thus becomes all the more imperative under such circumstances to abide by God's laws and refrain from improper conduct.

We might, however, suggest a slightly different interpretation of this verse, by associating it with the concluding verse of this section: "For the Lord your God moves about in your camp to protect you and to deliver your enemies to you, so let your camp be holy… " Clearly, this verse comes to explain the aforementioned obligations concerning ritual impurity and bodily waste. God's presence in the camp requires a strict standard of cleanliness and ritual purity. Quite possibly, however, it explains the opening verse, as well – "be on your guard against anything untoward." The Torah here requires the soldiers to conduct themselves generally in a becoming manner, not merely because of the dangers involved, as Rashi explained, but also out of respect for the divine presence.

The need for such an admonition can be found in the opening phrase of this section: "Ki teitzei machaneh al oyvekha." Here, for the second time in this parasha, the Torah describes Benei Yisrael at war with the term "ki teitzei" – literally, "When you go out." The situation of war is one that requires the soldier to leave everything behind and move to a setting where all the basic norms of morality and conduct no longer apply. When dealing with Am Yisrael, it also means that one leaves the domain of the Shekhina. The Torah must therefore remind him that "the Lord your God moves about in your camp." In truth, the military camp does not sit outside the religious framework of the Shekhina, of the Temple, of Eretz Yisrael. Since God joins the Israelite army as they wage battle, the soldiers' conduct must meet the same standards that apply back home.

This idea may also help explain the mitzva of "eishet yefat to'ar," with which Parashat Ki-Teitzei begins. The Torah establishes an extraordinary provision permitting a soldier to marry a captive woman to whom he feels strongly attracted. Before he marries her, however, he must follow a thirty-day procedure outlined by the Torah: "You shall bring her into your house, and she shall trim her hair, pare her nails, and discard her captive's guard… After that you may come to her and marry her" (21:12-13). Clearly, these guidelines are aimed at diminishing the initial attraction and allowing the spell that had gripped the soldier to fade. This is accomplished, of course, by altering the woman's physical appearance. But the Torah also emphasizes, "You shall bring her into your house." How might we understand this emphasis? Where else would he bring the captive woman whom he wishes to marry?

Perhaps this stage, too, is part of the process mandated by the Torah to lessen the soldier's interest in this woman. His attraction to the "eishet yefat to'ar" very likely resulted from the "departure" outside his world of values and priorities – "ki teitzei la-milchama." The Torah therefore instructs the soldier to first bring the woman into his home, into his more familiar setting, into the world which he had to leave to wage war. He is then likely to realize the clash between his home and the battlefield, and understand that the attraction resulted from his departure from his familiar setting. Once he returns home, he will see that what appears captivating and enticing outside his familiar setting has little appeal to him within that setting.

Ideally, then, a soldier's departure to war must not be seen as an actual "departure." God's presence among the army must be felt at all times, and the troops must therefore conduct themselves accordingly. If, however, the unique setting of war weakens a soldier's moral and spiritual convictions, the Torah requires that he first return home, to his previous setting, where he can then make his decisions with a clearer spiritual sense and in accordance with the values and teachings of his home and community.

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As we discussed yesterday, Parashat Ki-Tetze begins with the halakha of "eishet yefat to'ar," the captive woman. If a Jewish soldier desires a gentile woman taken into captivity, the Torah permits him to take her for marriage, and according to most opinions, he may even engage in relations with her before her conversion and marriage.

The Torah outlines the specific procedure the soldier must follow before he may marry the woman. After bringing her into his home, the soldier must have her remove her hair, after which she must do something to her fingernails – "ve-asta et tziporneha" (21:12). The ambiguity of this phrase resulted in two different views in the Sifrei, cited by the Gemara in Masekhet Yevamot (48). Rabbi Eliezer claimed that this refers to manicuring, whereas Rabbi Akiva interprets the verse to mean the precise opposite, that the woman must let her fingernails grow. Both Tanna'im base their positions on the association between this requirement and the first provision mentioned in the verse, that the woman must shave her hair. Rabbi Eliezer argues that just as the obligation concerning hair involves removal, so must the requirement regarding fingernails entail removal, rather than allowing something to grow long. Rabbi Akiva, however, sees in this verse a more general, thematic association between the woman's hair and fingernails. Just as she must remove her hair so as to render her unattractive to the Jewish soldier, so must she allow her fingernails to grow long, to give her an unkempt appearance.

The Gemara draws proof for Rabbi Eliezer's translation of "ve-asta" from a verse in Sefer Shemuel II (19:25) which appears to employ the term to mean cutting, rather than allowing to grow. Logically, however, Rabbi Eliezer's view requires explanation. According to Rabbi Akiva, we understand full well the purpose underlying this entire procedure: to diminish the soldier's attraction to the woman in the hope that he will decide against marrying her. According to Rabbi Eliezer, however, the Torah specifically requires that the woman manicure her nails, which seemingly enhances, rather than mar, her appearance. Why must the soldier, in Rabbi Eliezer's view, have the woman cut her nails?
The Ramban, in his lengthy discussion on this topic, expresses his preference for Rabbi Eliezer's view and suggests two different approaches to expthe purpose behind manicuring the fugitive woman's nails. He explains that according to Chazal's general approach to the laws of eishet yefat to'ar, that it is aimed at marring her appearance, cutting nails perhaps also serves this function. The Ramban notes that in many cultures, women grow their nails long and decorate them, and thus cutting a woman's nails would indeed make her less attractive. However, the Ramban himself suggests an entirely different approach to the purpose underlying these halakhot, namely, as allowing the woman a period to express grief and mourning over her sudden loss of nation and religion. The next verse speaks of the woman "crying for her father and mother" for one month, after which the soldier may marry her. The Ramban claims that the entire series of laws, including the cutting of her fingernails, are part of this mourning process. He writes, "for it is improper to sleep with a woman who is under duress and mourning." The Torah therefore required that the captive be allowed time to express and ultimately overcome her sorrow through the process of mourning, so that her marriage occurs with the proper mindset.

Rav Chayim Chavel, in his annotation to the Ramban's commentary, cites the "Kur Ha-barzel" as raising the obvious difficulty with this approach of the Ramban. The Ramban here assumes that cutting nails is a manifestation of aveilut (mourning). In Halakha, however, we find the exact opposite: a mourner is forbidden from cutting his nails. Cutting nails, along with bathing, laundering, and haircutting, are suspended during mourning as part of the demonstration of the quasi-cessation of the mourner's basic functioning in the wake of his recent loss. How, then, could the Ramban speak of nail cutting as a manifestation of mourning? The "Kur Ha-barzel" suggests that in the Ramban's view, just as overgrown fingernails express mourning and grief, so do particularly short fingernails, just as completely shaving one's head expresses aveilut the same way overgrown hair does.

In any event, the Malbim suggests a different approach to the underlying purpose behind the obligation to cut the woman's nails, viewing it as part of her preparation to join Am Yisrael. Already Ibn Ezra compared the eishet yefat to'ar's removal of her hair to the obligation for a metzora to shave his hair as part of his purification process. The Malbim argues that the nail cutting serves the same purpose, the idea being to remove any part of the body that grew during the previous period of impurity. Before leaving her world of paganism and entering the realm of kedusha, the eishet yefat to'ar must undergo a purification process to prepare her to join the ranks of Am Yisrael. The Malbim further notes that some ancient pagans worshipped the planet Venus as the god of love, and women would observe an annual ritual of cutting their nails, a symbol of their physical beauty, and bringing them as an offering to Venus. Appropriately, then, the captive woman is called upon to now remove her nails for the sake of rejecting pagan worship and embracing the monotheistic beliefs of Am Yisrael.

The Netziv, in his commentary, suggests a technical, Halakhic explanation for the obligation that the eishet yefat to'ar shave her hair and cut her nails. A person who undergoes tevila (immersion) must first remove all extraneous matter from his body, for otherwise it is considered an interruption (chatzitza) in between his body on the water. Accordingly, excessive growth of hair and fingernails will disqualify a tevila. The Torah therefore requires that an eishet yefat to'ar, like any other convert who must perform tevila as part of the conversion process, must remove her hair and excess fingernail growth so as to ensure a Halakhically viable tevila.

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Among the many mitzvot presented in Parashat Ki-Tetze is hashavat aveida – the obligation to return lost objects to their owner. In truth, this obligation comprises two of the Torah's 613 mitzvot. In addition to the mitzvat asei (imperative command) to return a lost object one encounters – "you must take it back to your fellow" (22:1), the Torah speaks as well of a mitzvat lo ta'aseh (prohibition) – "lo tukhal le'hit'alem" ("you must not remain indifferent" – 22:3).

As several commentators have noted, the Torah's formulation of this prohibition differs from the standard formulation employed throughout the Torah. Rather than simply stating, "lo tit'alem" – "you shall not remain indifferent," the Torah writes, "lo tukhal le-hit'alem," which literally means, "you cannot remain indifferent." The root "y.kh.l." generally denotes practical ability, rather than legal/Halakhic permissibility. Accordingly, "lo tukhal," taken literally, would mean that one does not have the ability to overlook his fellow's lost object. Why would the Torah formulate the prohibition in this manner?

Ibn Ezra comments very succinctly, "Ke-chaveirav" ("Like its counterparts"). In other words, the phrase "lo tukhal" in this verse is but one of several examples of a prohibition expressed by the Torah with this phrase (see Devarim 17:15; 21:16). We should not afford too much significance to this phraseology, as it occurs a number of times in the Torah.

Others, however, felt that this peculiarity should not go unnoticed. The Malbim, in his commentary, claims that this phrase refers to the finder's responsibility to care for the object until the owner comes to claim it. "Remaining indifferent" here means neglecting the item, such as neglecting to feed and properly protect a lost animal until the owner retrieves it. If the finder fails to provide the basic needs of the lost item and it is damaged or destroyed (or, in the case of an animal, it dies or becomes otherwise dysfunctional), he must make damage compensation to the owner. The Malbim claims that the Torah alludes to this halakha with the formulation, "lo tukhal." It is practically impossible for the finder to neglect the item, for even if he decides to ignore it, he bears full responsibility for the damages, which can be claimed against him in court.

Rav Moshe Alshich suggested that "lo tukhal le-hit'alem," the final words of this section dealing with hashavat aveida, alludes to the ultimate function this mitzva is to serve. The Torah seeks to bring a person to the point where he treats the property of others with the same concern and vigilance as he does his own possessions. Though at first a person would return a lost item only due to the Biblical command, ultimately, he should reach the point where he simply cannot ignore and overlook the crisis of his fellow. The financial loss of another should be seen as grave a situation as his own economic woes, such that he simply "cannot remain indifferent" to the lost item he encounters.

The Alshich adds that this explains the repetitive expression, "hashev teshivem" ("you must take them back"). As Nechama Leibowitz a"h notes in her "Studies" to this parasha, double expressions such as these are generally used as a means of emphasis. "Hashev teshivem" would therefore be translated as, "you shall surely take them back." The Alshich, however, suggests a homiletic interpretation of this repetitive phrase. The Torah uses two words in reference to the obligation to return a lost item because each time one fulfills this mitzva he should do so with a different approach and mindset. The purpose of hashavat aveida, as explained, is to engender a greater sense of identification with the plight of others. Each time a person seeks to help another avoid incurring financial loss, he comes one step closer to the ideal of "lo tukhal le-hit'alem" – where he simply cannot even imagine overlooking the problem of others, which become, in effect, his own, personal problem, as well.

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Parashat Ki-Tetze includes the prohibitions of etnan zona and mechir kelev, forbidding one from bringing as an offering animals used as payment for the services of a harlot, or in exchange for a dog (23:19). The reason behind the first of these laws, forbidding the use of an etnan zona for a sacrifice, is readily obvious. Clearly an animal used for such a purpose carries with it a stain that renders it wholly inappropriate in the sacred, sublime context of the Temple. The reason underlying the second prohibition, however, is less clear. Why does the Torah disqualify an animal used as payment for a dog?

The Sefer Ha-chinukh explains this prohibition as based on the inferior moral quality of dogs. The prophet Yeshayahu (56:11) describes dogs as "azei nefesh," a phrase generally interpreted as a reference to insatiable physical desire. The Chinukh contends that a mechir kelev, just like an etnan zona, runs the risk of conjuring up associations that have no place in the Beit Ha-mikdash and threaten to undermine the entire purpose of bringing a sacrifice. A korban, the Chinukh explains, is meant to remind the individual that in essence everything happening to the animal should be brought upon him, as well, as punishment for his misdeeds. This humbling and frightening thought will then lead the person towards repentance. An etnan zona and mechir kelev can easily evoke thoughts of licentiousness and immorality, which could likely sabotage the person's attempts to repent.

The Ramban, in his commentary to this verse, explains much differently. In ancient times, prostitutes would occasionally offer the animals they received for their services as sacrifices to the pagan deities, which would, in their belief, earn them expiation for their dishonorable profession. Likewise, hunters and watchmen would breed violent dogs to assist them in their work. To atone for the damage and pain caused by these dogs, their owners, when they eventually sold them, would bring the payment as an expiation offering. The Torah thus forbade these practices so as to keep Benei Yisrael away from pagan beliefs and rituals. (In our S.A.L.T. series to this parasha a number of years ago, we cited an explanation from Rav Moshe Feinstein that according to the Ramban, the notion of a "quick-fix," automatic atonement for grave transgressions lies at the heart of these prohibitions.)

The Netziv, in his Ha'amek Davar, suggests, interestingly enough, that we should not search for any obviously negative quality associated with a mechir kelev. In formulating the prohibition against offering an etnan zona or mechir kelev, the Torah writes, "For both of them ['gam sheneihem'] are abominable to the Lord." The Netziv contends that this phrase, "gam sheneihem," is used when the Torah applies a certain rule to two situations, one in which the rule's application is self-evident, and another where it is far less intuitive. In this verse, then, the Torah acknowledges the fact that the prohibition against offering an etnan zona is far clearer and more obvious than the corresponding prohibition concerning a mechir kelev. The impropriety of an etnan zona in the sacrificial context is self-evident, whereas the negative quality of a mechir kelev, as we have seen, is considerably more ambiguous. The Torah therefore emphasizes that despite what we perceive as a clear difference between these two types of animals, God views them as equally abominable. However invisible to our senses this quality might be, dogs possess an inferior spiritual nature parallel and equal to the very visible repugnancy of harlotry. In this verse the Torah seeks to stress the importance of accepting the Torah's assessments of good and evil, sacred and profane, even when the basis for these determinations eludes our senses.

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In Parashat Ki-Tetze, the Torah presents the laws of divorce, including the prohibition against remarrying a wife one has divorced if she had since been married to someone else (24:1-4). In describing the case under discussion, the Torah writes, "then this latter man rejects her and writes her a bill of divorcement… or the man who married her last dies. Then the first husband who divorced her shall not take her to wife again." In other words, if the woman is divorced or widowed from the second husband, the first husband may not remarry her.

The Gemara in Masekhet Kiddushin (13b) deduces from these verses the important halakha, which at first seems glaringly obvious, that a woman may remarry after her husband's death. The status of "eishet ish" ("married woman") conferred upon a woman at the time of betrothal renders her forbidden for all other men. This status is lost in one of two ways – either via the husband's death, or through a "get" (bill of divorce). The second of these is discussed explicitly in this section in Parashat Ki-Tetze, which allows a woman to remarry after receiving a get. But where, the Gemara asks, does the Torah mention that a married woman can marry somebody else after her husband's death? Why doesn't the status of eishet ish continue during widowhood? The Gemara discusses this question at length and ultimately finds two sources for this halakha. First, earlier in Sefer Devarim (20:7), we read that a soldier who had betrothed but yet to marry a woman is exempt from military duty, "lest he die in war and another man will marry her," clearly indicating that a widow may remarry. Secondly, our verse speaks of the second husband divorcing his wife or dying, implying a connection between these two occurrences. The Gemara thus concludes that the husband's death yields the same Halakhic effect as divorce, in that it eliminates the wife's status of eishet ish.

Before concluding upon these sources, the Gemara suggested that we derive this principle from a different source – the prohibition against a kohen gadol marrying a widow (Vayikra 21:14), which seemingly implies that other men may marry a widow. The Gemara then refutes this proof, arguing that the verse could be taken as introducing a more stringent level of prohibition concerning a kohen gadol's marriage to a widow, but she is in fact forbidden, albeit on a lower level, to all men.

Rabbi Akiva Eiger, in his notes to the mishnayot in Masekhet Kiddushin, questions this discussion based on a different verse in Parashat Ki-Tetze. Towards the end of the parasha, the Torah presents the mitzva of yibum – that when childless man dies, his brother must marry the widow or perform a special ritual called "chalitza" (25:5-10). The Gemara, later in that same discussion in Masekhet Kiddushin, derives from the concluding verse of the section dealing with yibum that after chalitza, the widow may marry any man. Before chalitza, the childless widow may not marry anyone else besides her brother-in-law; only once the brother-in-law performs chalitza may she now marry. In light of this halakha, Rabbi Akiva Eiger argues, it is difficult to understand the Gemara's attempt to draw proof to the permissibility of marrying a widow from the prohibition concerning a kohen gadol. Since the Torah explicitly permitted a chalutza (woman for whom chalitza was performed) to remarry, perhaps regarding her alone the Torah found it necessary to forbid a kohen gadol from marrying a widow. In truth, one could have argued, no man may marry a widow, with the exception of a chalutza, whom the Torah specifically permitted to remarry. A kohen gadol, however, is forbidden from marrying any previously married woman, including a chalutza. Rabbi Akiva Eiger thus finds it difficult to understand how the Gemara sought to derive this halakha from the prohibition against a kohen gadol's marriage to a widow, as it perhaps refers only to the one instances where a widow may remarry, namely, a chalutza.

In a thorough article on this topic (in Yeshiva University's "Beit Yitzchak," 1961), Rav Moshe Aharon Poleyoff suggests the following answer to resolve this difficulty. Had the Torah not permitted a widow to remarry, Rav Poleyoff contends, we would have to reassess the entire institution of yibum. If the ishut (marriage status) of the first husband continues even after his passing, how could the Torah allow and in fact obligate his wife to marry a different man? Necessarily, then, we would have to view yibum as the transfer of the first husband's ishut onto his brother. The husband's death does not generate a new relationship requiring the brother to the widow, but simply transfers the preexisting status of marriage onto the brother. This would be the conceptual approach to yibum had the Torah forbade a widow from remarrying.

Accordingly, Rav Poleyoff argues, the prohibition against a kohen gadol's marriage to a widow cannot be seen as a source for the general permissibility for widows to remarry. Recall that Rabbi Akiva Eiger questioned using this as a source in light of the fact that it perhaps refers specifically to a case of a chalutza, whom the Torah explicitly permitted to remarry. But had the Torah not permitted a widow to remarry, Rav Poleyoff claims, a kohen would be forbidden from marrying a chalutza for an entirely different reason. Since, as we have seen, yibum would have to be perceived as the transfer of the first husband's ishut onto his brother, then chalitza, in effect, would constitute the termination of the widow's first marriage, or, in other words, her "divorce" from her first husband. If the halakha were that ishut generally continues after the husband's death, then chalitza would be seen as the widow's divorce. Naturally, then, she would be Biblically forbidden from marrying a kohen, just as any divorcee may not marry a kohen (Vayikra 20:7). We would thus not require a special verse to prohibit a kohen gadol's marriage to a chalutza, and therefore the verse forbidding a kohen gadol's marriage to a widow cannot be referring to a chalutza.

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