Introduction to the Study of Talmud
Kiddushin 22 - 80b
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In our last shiur, we introduced the law of yichud, which
prohibits a man and woman from being secluded together in a private place, and
we began to discuss its details. We also saw that the gemara
quotes Rabbi Yishmael, who teaches that even though the prohibition of
yichud is not explicitly mentioned in the Torah, the Torah does hint to
it in a different context, namely its warning to resist the
temptation of even close relatives if they seek to introduce one to idolatry.
This is the source of the law of yichud between men and women whose
relationship would fall under the category of arayot (see
Vayikra 18:6-18); in other words, the "hint" prohibits seclusion when
the woman is married to someone else, and also between certain relatives.
What is the status of this prohibition? It is common for the Gemara
to derive laws from scriptural derivations even when the law is not clearly
articulated in the text. In fact, there are lists of rules for scriptural
exegesis, and one such list is commonly recited every morning at the end of the
introductory "korbanot" section of tefilla. Laws that are
derived from scriptural derivation are considered to be of Biblical status,
despite the fact that the Torah does not spell out the halakha explicitly.
However, at times the Gemara also connects laws to pesukim
even when the rules of scriptural derivation do not apply. In such instances,
most commonly called asmakhta, the Gemara does not mean
to teach that the law is of Biblical status. The law is of rabbinic status and
the Gemara simply attaches it to a pasuk in order to further
legitimize the law or as a reminder of the Rabbinic law.
What is the status of the issur (prohibition) of yichud?
Our gemara refers to the derivation as a "hint." In general, that would
clearly indicate that the law is rabbinic and the derivation belongs to the
category of askmakhta. However, the Gemara elsewhere
(Avoda Zara 36b, Sanhedrin 21b) states clearly that the
prohibition of yichud with arayot is Biblical, based on the
scriptural derivation quoted in our sugya, and that the
rabbis forbade even yichud with women not included in the category of
arayot (such as unmarried women and non-Jewish women). This
seeming contradiction between our sugya and those other
gemarot complicates the process of determining the severity of the
issur of yichud with arayot. Many authorities (Rashi,
Shabbat 13a s.v. ma, Tur, EH 22) rule that the
prohibition is of Biblical status; others, however, (Gra, EH 22:4 in
explanation of Rambam, Hil. Issurei Bi'ah 22:2) maintain that the
prohibition is rabbinic.
Let us continue on in the gemara. Our mishna rules
that although one man may have seclusion with two women, two women may not
be secluded with one man. Our gemara contrasts this ruling with the
statement of a beraita. We are slightly more than halfway down the page
Say that our mishna is not like Abba Shaul!
For we learned in a beraita: "All thirty days (if a child dies within its first thirty days)
it is carried out [to burial] in
and is buried with one woman and two men,
but not with one man and two women.
Abba Shaul says: 'Even one man and two women!'"
You can even say [our mishna
accords with the view of] Abba Shaul;
in a time of mourning, desire is broken.
נימא, מתני' דלא כאבא שאול!
דתניא: כל שלשים יום -
ונקבר באשה אחת ושני אנשים,
אבל לא באיש אחד ושתי נשים.
אבא שאול אומר: אף באיש אחד ושתי נשים!
תימא אבא שאול,
בשעת אנינות תביר יצריה.
The gemara starts by asserting that the ruling of our
mishna does not match with the ruling of Abba Shaul that is quoted in a
beraita. That beraita deals with a completely different topic,
but relates tangentially to the prohibition of yichud. The essential
principle discussed in the beraita is that if a baby passes away
within its first thirty days of life, the standard rules of aveilut
(mourning) do not apply. Thus, it can be carried out for burial rather than
transported in a coffin or bier. Similarly, it is enough for three people to
accompany it for burial; there need not be many people, as with a standard
burial. In this context, the beraita teaches that it can be buried with
one woman and two men, but not with one man and two women. This is because, in
Talmudic times, cemeteries were located outside of cities; if one man and two
women were to go alone to the burial, they would find themselves alone in the
fields or along the roads (which were often not well traveled), in violation of
the prohibition of yichud.
Abba Shaul, however, disagrees and holds that even one man and two women may
travel together to the burial. Apparently, he is not concerned about
yichud in such cases, in contrast to our mishna!
The gemara responds that Abba Shaul may fundamentally agree with our
mishna, but simply hold that the case under discussion is an exception.
As we mentioned last week, the issur of yichud seeks to
protect people from the violation of more severe prohibitions relating to sexual
morality. Abba Shaul may argue that we ought not be concerned that such a
violation will occur in the case at hand because in a time of mourning one's
desire will not get the best of him. Thus, just as the mishna rules
that there is no prohibition in a case of two men and one woman because there is
no serious concern of inappropriate activity, so too in a case of two women and
one man in a time of mourning.
Parenthetically, we should point out that our use of the word "mourning" in
translation of the gemara's word אנינות is not fully precise. In
halakha, there are two separate periods after a close relative passes away,
known as aninut and aveilut. Aninut refers to the
time between the death and the burial. During this time the standard rules of
mourning do not apply to the relatives. At the same time, due to their
preoccupation with the deceased and arrangements for the burial, they are
released from active halakhic obligations. Thus, while an onen (someone
in a state of aninut) is not permitted to actively violate
halakha, he does not fulfill positive mitzvot either, such as
tefilla or even making berakhot on food. Once the deceased has
been buried, the relatives enter the state of aveilut. At this
time, they fulfill mitzvot the same way they normally do, but many
other rules of mourning apply: the mourners sit only on very low chairs, do not
wear leather shoes, do not wash themselves or their clothes, etc.
Let us return to the gemara, which continues to explain the debate
between the Sages and Abba Shaul. We are about three quarters of the way down
the page on 80b.
And the rabbis? They hold like Rabbi Yitzchak,
for Rabbi Yitzchak said: "'For what shall a living man
mourn, a man for his sins?'
even in a person's time of aninut, his desire
And Abba Shaul? That [verse] is
regarding one who complains about His (God's) attributes,
and this is what it says: "What [right
does one have] to complain about His attributes?
Has he overpowered his sins?
The life I have given him is enough for him."
And the rabbis? Like that incident with that woman,
that there was an occurrence and they brought him out.
ורבנן? סברי לה כר' יצחק,
דאמר רבי יצחק: מה יתאונן אדם חי גבר על חטאיו -
אפילו בשעת אנינותו של אדם יצרו מתגבר עליו.
ואבא שאול? כי כתיב ההוא -
במתרעם על מדותיו כתיב,
והכי קאמר: מה יתרעם על מדותיו?
וכי גבר על חטאיו?
דיו חיים שנתתי לו.
ורבנן? כי ההוא מעשה דההיא איתתא,
דהוה עובדא ואפיקתיה.
The gemara has previously asserted that the rabbis and Abba Shaul
may agree that yichud generally prohibits the seclusion of two women
and one man; the point of disagreement is whether or not this prohibition
applies in a case of aninut. Abba Shaul holds that the gravity of the
situation will prevent the people who bury the child from participating in
inappropriate activity. Our gemara now records the response of the
rabbis: they argue that even in a time of aninut, one cannot be sure
that one will be able to contain one's inclination. In this context, the
gemara quotes a teaching of Rabbi Yitzchak based on a pasuk in
Eicha (3:39). As Rashi (s.v. ma yitonein) explains,
the verse is understood here a bit differently than its literal
translation, which we have quoted above. The phrase ma yitonein adam
chai, translated above as "For what shall a living man mourn," is rendered
thus: "What use is aninut? As long as a man is alive..." The
continuation of the pasuk, gever al chata'av, translated as "a
man for his sins," is understood here as, "he must overcome his inclination to
sin" (the word gever can refer to a man, or can refer to power).
Abba Shaul counters by offering a different allegorical explanation of the
pasuk: "What right does one have to complain about His attributes?" In
this context, the word yitonein is not understood as referring to
mourning but as referring to another possible meaning, which is a
complaint. "Has he overpowered his sins?" This too understands the word
gever as "overpower," but the second phrase of the verse is understood
as a rhetorical question rather than as a statement of fact. Thus, rather than
teaching that a person must be watchful to overcome his inclination to sin and
can never rest on his laurels, the verse is understood as stating that man is
unworthy of questioning God's judgment, and may not complain when troubles
The rabbis respond by making reference to a specific incident that proves
their point. The gemara does not spell out the details of this
incident, but the commentaries mention a few scenarios that may fit the bill.
One possibility, quoted by Rashi (s.v. Ve-Rabbanan), is that a woman
took a live baby and, pretending he had died, took him out of the city for
burial in order to sin with the man who accompanied her.
Another possibility is quoted by Tosafot (s.v. Ki): a woman was
crying and mourning over her husband's grave, and attracted the attention of a
watchman who had been appointed to guard the body of a criminal who had been
hung by the government. The watchman successfully seduced the woman, and upon
returning to his post discovered that the body he was supposed to be guarding
had been removed. He became distressed due to fear of the repercussions of
having failed his mission, and the woman calmed him by offering that he could
take her husband's body and put it on the gallows instead.
|How do these two stories fit into the context of
the Gemara? |
The back-and-forth of the gemara gets a different twist depending on
which of the two stories we adopt. If the gemara intends to reference
the first story, the rabbis are essentially ignoring the main point of
contention between themselves and Abba Shaul, which is whether there is reason
to be concerned that even in a time of aninut one will be overcome by
the desire to sin. The rabbis conclude their argument by saying that even if we
would concede that there is no such concern, we still cannot relax the general
rules of yichud because the lenient regulations might be manipulated by
people who are looking for a way to sin. The story proves that people may
cynically pretend to be involved in the grief of the loss of a child in order to
divert communal attention from their sin.
The second story lends a very different interpretation to the end of our
gemara. According to this version, the rabbis directly counter Abba
Shaul's argument by citing a concrete example that contradicts his principle. In
the example cited, a woman succumbed to seduction even in her time of great
sorrow. Her state of mourning was so completely overshadowed by her desire that
she ended up disgracing her husband's body in order to protect the catalyst and
partner in her sin.
Practically speaking, the halakha follows the view of the rabbis. Even in a
time of aninut, yichud between one man and two women is