Ask A Question about the Daf

Previous daf

Yevamos, 61

1) HALACHAH: "TUM'AH" AND THE GRAVES OF NOCHRIM

OPINIONS: The Gemara cites a Machlokes Tana'im regarding whether or not the graves of Nochrim are Metamei with Tum'as Ohel. Rebbi Shimon maintains that they are not Metamei b'Ohel, and the Chachamim maintain that they are. The Gemara concludes that even if they are not Metamei b'Ohel, like Rebbi Shimon, they are nevertheless Metamei with Tum'as Maga u'Masa (by touching or carrying).

This Gemara is Halachically pertinent today for Kohanim, who are prohibited to be Metamei with Tum'as Mes. What Halachic conclusions emerge from this Gemara with regard to Kohanim walking over graves of Nochrim or in a cemetery of Nochrim?

(a) As far as the specific Halachah of our Sugya is concerned, the RAMBAM (Hilchos Tum'as Mes 1:13) rules that graves of Nochrim are not Metamei b'Ohel, like Rebbi Shimon. (The Rambam in Teshuvos (PE'ER HA'DOR #57) seems to have understood that even according to the *Chachamim*, graves of Nochrim are not Metamei b'Ohel, but are only Metamei b'Maga u'Masa. According to Rebbi Shimon they are not Metamei even b'Maga u'Masa. This also seems to be the view of the YERE'IM (#322). According to this understanding of the Gemara, the Rambam is ruling like the Chachamim when he says that graves of Nochrim are not Metamei b'Ohel but only b'Maga u'Masa.)

However, TOSFOS (DH mi'Maga) and the other Rishonim here, as well as the ROSH (Teshuvos 30:1), understand the Gemara in the straightforward sense and rule like the Chachamim that graves of Nochrim are Metamei b'Ohel. For this reason, the SHULCHAN ARUCH and REMA (YD 372:2) write that a person should be stringent and not to walk over graves of Nochrim. (Teshuvos V'SHAV HA'KOHEN #75 rules even more stringently and says that it is not just a stringency not to walk over graves of Nochrim, but it is the letter of the law, since the majority of Poskim rule that graves of Nochrim are Metamei b'Ohel.)

(b) However, there is another issue that affects the practical ramifications of this Halachah. The RA'AVAD (Hilchos Nezirus 5:16) rules that if a Kohen or Nazir is already Tamei with Tum'as Mes, he is not punished for touching a Mes again. (The ROSH (in Hilchos Tum'as Kohanim #6) cites RABEINU TAM who rules, similarly, that if a Kohen touched a Mes on a certain day, and then he touched a Mes again on the *same day*, he is not punished for touching the second Mes -- since it does not lengthen the amount of days that he must remain Tameh before Haza'ah.) The CHASAM SOFER (YD 339) points out that this appears to be the opinion of RASHI in Nazir as well. The RA'AVAD concludes by remarking that because of this, since Kohanim today are all Tamei with Tum'as Mes, they are not Chayav for becoming Tamei to a Mes again.

Even though the Rambam and Tosfos disagree and say that a Kohen who is Tamei is still obligated to observe the Isur of becoming Tamei, the MISHNEH L'MELECH (Hilchos Avel 3:5) suggests that a Kohen should be permitted to be lenient and walk atop graves of Nochrim because of a S'fek S'feika. The first Safek is that some Poskim rule that a Nochri is not Metamei b'Ohel, and second, even if a Nochri is Metamei b'Ohel, some Poskim rule that a Kohen is not obligated today to guard himself from becoming Tamei today. The DAGUL MERAVEVAH (YD 372) cites this view as the Halachah. However, in a note added later, the Dagul Meravevah retracts this opinion, saying that even the Ra'avad does not *permit* a Kohen Tamei to touch a Mes; he merely says that there is no Chiyuv (Malkus) for doing so. The Chasam Sofer (ibid.), though, disagrees with this and says that, at worst, the Isur according to the Ra'avad would be an Isur d'Rabanan, and therefore there *is* a S'fek S'feika to permit a Kohen to walk into a cemetery of Nochrim.

(c) Another point that is important to note is the Chidush of the VILNA GAON (in ADERES ELIYAHU, Parshas Chukas) as cited by the OR SAME'ACH (Hilchos Tum'as Mes 1:13). The Vilna Gaon says that even if the grave of a Nochri is not Metamei b'Ohel, it is Metamei b'Maga not only if touched directly, but even if someone merely touches the gravestone or any object that is resting directly above the Mes. The reason for this is as follows.

There is a Halachah in the laws of Tum'as Ohel that if an object comes within less than a Tefach above the Mes, the Tum'ah of the Mes penetrates the object and goes out the other side. (This is called "Tum'ah Retzutzah"). The Vilna Gaon rules that touching the object through which the Tum'ah is penetrating is the same as touching the source of the Tum'ah (the Mes) itself. Therefore, walking over (and touching) the grave of a Nochri would be like touching the Mes itself (unless, of course, there is a Tefach of space between the top of the Mes and the roof of the coffin or object above the Mes). According to this, it is Asur for a Kohen to touch the grave of a Nochri.

The OR SAME'ACH points out that this answers a number of problematic statements in the Gemara. For example, the YERUSHALMI (cited by TOSFOS 12a, DH sh'Iber) states that one time in the Beis ha'Mikdash, all of the Kohanim became Tamei because the skull of a Nochri (Aravnah ha'Yevusi, the previous owner of the land on which the Mizbe'ach was erected) was found underneath the Mizbe'ach. The MISHNEH L'MELECH (Hilchos Beis ha'Bechirah 1:13) asks that according to those who rule like Rebbi Shimon, the skull should not have made anyone Tamei, because no one touched it and it is not Metamei b'Ohel! According to the Vilna Gaon, though, it may easily be understood why it was Metamei the Kohanim. They touched the Mizbe'ach which rested on top of the Nochri's skull, and thus they became Tamei with Tum'as Maga.

The Or Same'ach concludes, based on the view of the Vilna Gaon, that a Kohen who is a Yerei Shamayim should be careful not to touch even the top of the grave of a Nochri for this reason. (The Rogatchover Gaon, in Teshuvos TZAFNAS PANE'ACH (Warsaw) #256, also discusses this matter and concludes that Tum'ah Retzutzah does not apply to the grave of a Nochri.)

61b

QUESTION: In the Mishnah, Beis Shamai and Beis Hillel argue what is the requirement for fulfilling the Mitzvah of Piryah v'Rivyah. Beis Shamai says that one must have two sons, and Beis Hillel says that one fulfills the Mitzvah by having one son and one daughter (see Chart #18). Beis Hillel learns this from Beri'as ha'Olam, when Hashem created the world with one male and one female, Adam and Chavah. Beis Shamai argues that no proof can be adduced from the creation of Adam and Chavah," because "Ein Danin Efshar mishe'Iy Efshar" ("we cannot derive something that is possible from something that is not possible"): it was not possible for Hashem to have created the world any other way. He wanted to create one man and one woman, and not two men, in order for mankind to propagate.

According to the Gemara, it seems that Beis Hillel's ruling is based on the premise that we *may* derive "something that is possible from something that is not possible." How can this be? We learned earlier (46a) that the Halachah follows Rebbi Akiva who holds that we may *not* derive Halachos in this manner! Moreover, how could Rebbi Akiva argue with Beis Hillel with regard to the Mitzvah of Piryah v'Rivyah? (MAHARSHA) ANSWERS:

(a) The MAHARSHA answers that even if we do not derive that which is possible from that which is not possible, when it comes to the number of children one must have in order to fulfill the Mitzvah, we *may* make such a derivation. Since there is a *logical basis* to say that one fulfills the Mitzvah with one son and one daughter -- for that will provide replacement for the past generation and will allow the world to continue to be populated -- we may learn "Efshar" from "Iy Efshar."

(b) The ARUCH LA'NER writes that when there is no other source from which to derive the details of a Halachah other than by deriving "Efshar" from "Iy Efshar," we may do so. Here, Beis Hillel has no other source, because Beis Hillel holds that we cannot learn it from Moshe Rabeinu, as the Gemara describes. (See also TOSFOS CHAD MI'KAMAI here.)

(c) In this case, learning from the creation of Adam and Chavah is not absolutely "Iy Efshar." We may indeed learn the Halachah from there, because it *was* possible for Hashem to have created two males at Beri'as ha'Olam. If the Mitzvah would have been to have two sons, then Hashem would have created the world with *two males* and *one female* in order to teach us that one must have two sons in order to fulfill the Mitzvah. (The only reason a female was created was to propagate the world, for without a female, it would not be possible to propagate the world.) Since Hashem did *not* create the world like that, but rather He created one male and one female, it must be that one fulfills the Mitzvah of Piryah v'Rivyah with one son and one daughter.

When Beis Shamai says that learning from the creation of the world is considered learning something that is possible from something that is not possible, that is because he holds that Hashem wanted to create the world only with the *amount of people* that we must also give birth to in order to fulfill the Mitzvah of Piryah v'Rivyah, and therefore he created only two persons. When creating two humans, it was impossible to create a populated world from only two males, and thus He created one of the humans as a female. But Beis Hillel holds that we can learn from the creation of the world that one must have a son and a daughter, since Hashem did not create another male at the time. (M. Kornfeld)