Introduction to the Study of Talmud
Kiddushin 24 - Daf 81a
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Over the past few weeks, we have been studying the laws of yichud,
which prohibit a man and woman from being alone together, lest they come to sin.
Having discussed some of the parameters of the issur (prohibition) -
such as the numbers of people necessary for us to consider them as not being in
seclusion, and the presence of relatives - the Gemara takes a moment to
consider some of the ramifications of yichud.
We begin on the twelfth line of daf 81a.
Rav said: "We give lashes over yichud
and we do not forbid [a woman to her
husband] over yichud."
Rav Ashi said: "It was only stated regarding yichud
of an unmarried woman,
but not regarding yichud of a married woman,
so that we not cast aspersions on her children."
Mar Zutra would give lashes and announce.
Rav Nachman of Parhatia said to Rav Ashi:
"Master should also give lashes and announce!"
He said to him: "There are those will hear this and not hear
אמר רב: מלקין על ייחוד,
ואין אוסרין על הייחוד.
אמר רב אשי: לא אמרן אלא בייחוד פנויה,
אבל בייחוד דאשת איש לא,
שלא תהא מוציא לעז על בניה.
מר זוטרא מלקי ומכריז.
א"ל (אמר ליה) רב נחמן מפרהטיא
מר נמי לילקי ולכריז!
א"ל: איכא דשמע בהא ולא שמע
Rav teaches that in case of a violation of the issur of
yichud, Beit Din (the Rabbinical court) imposes the punishment
of lashes. This is the standard punishment for violation of a biblical command
that has the status of a Lo Ta'aseh, meaning when the Torah explicitly
forbids one to do a particular action. Even when administration of lashes is not
mandated by halakha, Beit Din still has the power to administer
makkat mardut (lashes for the rebellious), as punishment for an
infraction. It is this rabbinically mandated type of lashes to which our
The second half of Rav's statement, that "we do not forbid over
yichud" requires some explanation. The halakha states that if a married
woman commits adultery, she becomes forbidden to her husband; he must therefore
divorce her, but need not pay her the ketuva payment. She concurrently
becomes forbidden to the man with whom she committed adultery as well. Rav
teaches that although we consider a violation of yichud as
serious enough to administer lashes, we do not consider ourselves
certain that an adulterous act has occurred, and the woman therefore remains
permitted to her husband.
Rav Ashi qualifies the ruling of Rav. In his view, we only administer lashes
to an unmarried woman who has become secluded with a man, but we do not give
lashes in a case of a married woman who has violated the prohibition of
yichud. The reason for this is that we do not want people to get the
wrong idea and assume that a fully adulterous act was carried out. This would
lead to aspersions about the lineage of the woman's children; people might
suspect that her children were conceived via adulterous relationships and
therefore have the status of mamzer. In order to prevent this problem,
we dispense with the rabbinically authorized lashes in such cases.
Mar Zutra apparently implemented a compromise position. He was concerned
about the possibility of false rumors spreading about the extent of the
impropriety, but did not see fit to dispense with the lashes entirely. Instead,
he would give lashes but would announce that the lashes were for a violation of
yichud and nothing more; in this way, he hoped to ensure that no one
would get the wrong idea. When Rav Nachman presented this approach to Rav Ashi,
Rav Ashi explained that he remained concerned about the possibility of
false rumors; it is possible that some people would hear about the lashes but
would not pay attention to the announced details of the case, and would still
assume the worst.
Until now, we have explained the gemara based upon Rashi's
commentary to this sugya. However, Tosafot (s.v. Malkin)
suggest an alternate explanation. According to Rashi, we must conclude one
of two possibilities regarding the first part of Rav's ruling: 1) It is
rejected by Rav Ashi. 2) The first part refers only to an unmarried woman while
the second part refers to a married woman. Tosafot prefer a different
explanation that avoids these problems: Rav's entire ruling addresses a
case of yichud with an unmarried woman. This makes it easier
to understand Rav's first clause, but the second becomes more
difficult; if the woman is not married, what need is there to say that we
do not consider her forbidden? Tosafot explain that Rav does not refer here
to forbidding the husband and wife to continue living together, but rather
to forbidding the woman to marry a kohen.
As we have discussed earlier in this course, a kohen may not marry a
woman who is halakhically defined as a zona (Vayikra 21:7). A
zona is a woman who has had sexual relations with a man that she is
halakhically forbidden to marry. Thus, our gemara would be saying that
although we give lashes for the violation of yichud involving an
unmarried woman, we do not assume that she has attained the status of a
zona and may not marry a kohen. Presumably, this applies even
if the man with whom she secluded herself is someone whom she cannot marry; we
do not assume that just because there was yichud, there definitely was
a sexual act.
|Review the following stages of the
gemara. What might we interpret differently based upon this
second interpretation of Rav's statement? |
If we take Tosafot's interpretation, Rav Ashi's statement is
merely a clarification of Rav's ruling and not a rejection. Rav Ashi
simply clarifies that Rav's teaching should not be extended beyond the
circumstance addressed by Rav, namely yichud involving an unmarried
woman. In the case of a married woman, we do not administer lashes so as to
ensure that people not cast aspersions on her children, a concern that does not
apply regarding an unmarried woman.
Once we have interpreted the original topic of discussion as relating
specifically to unmarried women, it becomes possible to offer an alternate
interpretation of Mar Zutra's policy. Rashi explains that Mar Zutra essentially
shared Rav Ashi's concern but did not want to totally abolish the lashes for
married women who violated the issur of yichud, and he
therefore would administer lashes but announce the reason for the punishment. It
is possible to suggest, however, that even Mar Zutra did not give lashes to
married women who violated the issur of yichud. He actually
went farther than Rav Ashi and was concerned about incorrect aspersions even
regarding unmarried women, and would therefore announce the reason for the
lashes while punishing them. Rav Nachman asks Rav Ashi why he would not extend
Mar Zutra's formula to married women as well. To this, Rav Ashi responds that
some people will end up hearing about the lashes but not hearing the
pronouncement. In fact, if you take a look in the standard printings of the
Talmud, there is a bracketed 'aleph' right before Mar Zutra's
statement. That aleph refers us to the inside margin of the page where
the Hagahot ha-Gra claims that this latter interpretation is the one
accepted by Rambam.
There is a significant practical difference between the two
interpretations that we have mentioned above. According to the first
interpretation, the only time we would need to publicize the details of the
case would be if we were to flog a married woman for a violation of
yichud; since we accept Rav Ashi's view that we do not flog a married
woman, the announcement is never implemented. According to the second
approach, however, the announcement is made even when flogging an unmarried
woman. Practically, it is this second view that is accepted (Shulchan
Arukh, E.H. 22:2).
Back to the Gemara
Let us continue in the Gemara; we are about a third of the way down
the page on 81a, at the beginning of the line.
Rav said: "We give lashes over 'the report is not
as it says: 'Do not, my sons, for the report is
Mar Zutra would place a halter on his shoulders
and recite to him the verse, "Do not, my sons."
אמר רב: מלקין על לא טובה השמועה,
שנאמר: אל בני כי לא טובה השמועה.
מר זוטרא מותיב לה אפסירה על כתפיה,
ומקרי ליה אל בני.
The gemara here begins with yet another ruling authored by Rav. Rav
teaches that Beit Din administers lashes to someone about whom
there have been rumors of violation of halakha. Ritva points out that this
applies specifically to someone about whom there are constant
or substantiated rumors; in other words, his violation of halakha is a
matter of public knowledge and discourse. Ritva adds that this is especially
true in matters related to sexual morality.
The verse quoted as support for this ruling comes from I Shemuel
(2:24), where Eli the kohen rebukes his sons for their abuse of
their elevated social and religious status. As Rashi (s.v. Al lo tova)
explains, though, the specific wording of this verse teaches us something
important about the nature of Rav's ruling. It is not just that the rabbis
instituted a harsh punishment on the suspicion of a real halakhic violation;
living the lifestyle that produces the bad reports is a violation in
itself. On a Torah level, lashes are administered, as we mentioned above, for
the violation of a Lo Ta'aseh, which is defined as a prohibition that
is expressed directly in a very specific format, using one of four
possible negative verbs: lo, al, hishamer or pen.
The verse quoted from Shemuel fits this description, as Eli uses the
word al in conjunction with the lifestyle that has produced negative
In addition to helping us to understand the full significance of Rav's
ruling, this Rashi helps us to appreciate a more general
feature of rabbinic law. As the Gemara explicitly states in
several places (e.g., Pesachim 30b), the rabbis were careful to pattern
their decrees based upon the framework of already existing Torah laws. The same
is true in our sugya. In Torah law, one is flogged for violating a
Lo Ta'aseh stated in the Torah itself. On a rabbinic level, one is
flogged even for violating the Lo Ta'aseh formulated in Sefer
The gemara concludes with the example of Mar Zutra, who would follow
Rav's ruling in a way that made it quite clear that the lifestyle that produced
bad reports was reason enough to administer the punishment of lashes.
Back to the Gemara
Let us continue in the Gemara; we are nine lines from the end of the
short lines on daf 81a.
Rabba said: "If her husband is in the city -
we are not concerned about yichud."
Rav Yosef said: If there is an open entrance to the public
we are not concerned about yichud."
Rav Bivi went to the house of Rav Yosef;
after they broke bread, he said to them:
"Remove the step from under Bivi."
But Rabba said: "If her husband is in the city -
we are not concerned about yichud!"
Rav Bivi was different, for she was his kinswoman
and was familiar to him.
אמר רבה: בעלה בעיר -
אין חוששין משום ייחוד.
אמר רב יוסף: פתח פתוח לרשות הרבים -
אין חוששין משום ייחוד.
רב ביבי איקלע לבי רב יוסף;
בתר דכרך ריפתא, אמר להו:
שקולי דרגא מתותי ביבי.
והא אמר רבה: בעלה בעיר -
אין חוששין משום ייחוד!
שאני רב ביבי,
דשושבינתיה הואי וגייסא ביה.
Rabba teaches that the concern for yichud is eliminated if the
woman's husband is in the city. Rav Yosef presents another mitigating
circumstance: if the location in which the yichud takes place has an
open entrance to the public domain. Presumably, in such an instance, the fear of
discovery is ever-present and the pair will be afraid to perpetrate a more
The gemara moves on to relate an incident that pertains to both
Rabba and Rav Yosef. Rav Bivi joined Rav Yosef for a meal, which was apparently
eaten in an upper story that was accessible from Rav Yosef's home by means of a
ladder. After beginning the meal, Rav Yosef and his wife descended into the
house, and Rav Yosef apparently needed to step out of the house for a few
moments. In order to prevent yichud between Rav Bivi and Rav Yosef's
wife, Rav Yosef instructed that the ladder be removed so that Rav Bivi would be
unable to descend into the house. The gemara questions this incident:
Didn't Rabba state that if the woman's husband is in the city there is no
prohibition of yichud? The gemara answers that the situation
was unique in that Rav Bivi and Rav Yosef's wife were somehow related or
otherwise had known each other and were familiar to each other; in such a
circumstance, the leniency normally applied when the husband is in the city
cannot be followed.
With regard to Rabba's initial ruling, it is important to note that the
commentators differ on the extent of his leniency. Rashi (s.v. Ba'alah
ba-ir) relates Rabba's ruling to the Gemara's earlier discussion
about lashes, and comments that in such a situation there would not be lashes
for the violation of yichud. This indicates that Rashi views Rabba as
introducing a leniency only regarding lashes; however, it would still be
forbidden to wilfully enter such a situation.
Tosafot (s.v. Ba'alah ba-ir) dispute this interpretation and
claim that Rabba's ruling qualifies the very prohibition of yichud;
therefore, if the husband is in the city, there is no prohibition of
yichud at all. They cite the continuation of the Gemara as a
proof to their interpretation. The Gemara wonders why Rav Yosef sought
to prevent yichud between his wife and Rav Bivi in light of Rabba's
ruling. That indicates that when the husband is in the city, there is no
prohibition of yichud at all. This is the opinion that is accepted on a
practical level (Shulchan Arukh, EH, 22:8).