Introduction to the Study of Talmud
by Rav Michael Siev

Kiddushin 24 - Daf 81a

A scan of the classic printed daf can be found at: http://dafyomi.org/index.php?masechta=kiddushin&daf=81a&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 may 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.

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 that."

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 לרב אשי: מר נמי לילקי ולכריז! א"ל: איכא דשמע בהא ולא שמע בהא.

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 gemara refers.

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 good,' as it says: 'Do not, my sons, for the report is not good.'" 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 reports.

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 Shemuel.

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 domain - 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 serious crime.

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).