Introduction to the Study of Talmud
by Rav Michael Siev

Kiddushin 22 - 80b

A scan of the classic printed daf can be found at: http://dafyomi.org/index.php?masechta=kiddushin&daf=80b&go=Go Key words and phrases in Hebrew and Aramaic are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  From time to time, the shiur will include instructions to stop reading and do some task on your own. This will be marked by a red pause box  It is highly recommended that you follow those instructions. I am still working on a way to have your computer melt if you don't, but as of yet, the technical details are still beyond me. Within the quoted texts, my explanations and additions are also noted in red.

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 on 80b.

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 one's bosom, 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 - יוצא בחיק, ונקבר באשה אחת ושני אנשים, אבל לא באיש אחד ושתי נשים. אבא שאול אומר: אף באיש אחד ושתי נשים! אפילו 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 overpowers him." And Abba Shaul? That [verse] is stated 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 overtake him.

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 prohibited.