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Yoma 88

YOMA 59-88 have been dedicated to the memory of the late Dr. Simcha Bekelnitzky (Simcha Gedalya ben Shraga Feibush) of Queens N.Y. by his wife and daughters. Well known in the community for his Chesed and Tzedakah, he will long be remembered.

1) WHEN A "BA'AL KERI" MAY IMMERSE ON YOM KIPUR

QUESTION: Rav holds that Ne'ilah is Davened at night, and it replaces the Tefilah of Ma'ariv. The Gemara shows that the Tana of a Beraisa disagrees with Rav, and rules that Ne'ilah does not replace Ma'ariv; it is Davened *before* nightfall. How, then, can Rav say that it is Davened at night? The Gemara answers that there is a Machlokes Tana'im about Rav's Halachah. Another Tana holds like Rav, that Ne'ilah is Davened at night, and Rav is ruling like that Tana.

Where do we find a Tana that rules Ne'ilah is Davened at night? The Gemara cites a Beraisa in which the Rabanan and Rebbi Yosi argue regarding the Tevilah of one who became a Ba'al Keri on Yom Kipur. The Rabanan maintain that he may be Tovel only until Minchah, but after Minchah has passed he may not be Tovel, and Rebbi Yosi maintains that he may be Tovel during any part of the day. The Gemara understands the argument to be based on whether Ne'ilah may be said at night, after Yom Kipur, or whether it must be said during the day. The Rabanan maintain that Ne'ilah is recited at night, and therefore once a person has said Minchah, there is no need for him to be Tovel on Yom Kipur in order to Daven. Rebbi Yosi maintains that Ne'ilah must be recited during the day, and therefore even if one has Davened Minchah he may immerse during the day in order to Daven Ne'ilah.

The Gemara later cites a different Beraisa (regarding a person who wants to be Tovel but he has the name of Hashem written upon his skin), in which the Rabanan and Rebbi Yosi argue regarding a different issue -- whether Tevilah at the prescribed time is a Mitzvah or not ("Tevilah b'Zemanah Mitzvah"). According to Rebbi Yosi, Tevilah b'Zemanah is a Mitzvah, while according to the Rabanan, Tevilah b'Zemanah is not a Mitzvah.

If Rebbi Yosi holds that Tevilah b'Zemanah is a Mitzvah, then perhaps that is the reason why he says that one may be Tovel all day on Yom Kipur, and not because he requires Ne'ilah to be said during the day! If so, there is no source to say that *any* Tana agrees to Rav that Ne'ilah is Davened at night. Both Rebbi Yosi and the Rabanan may hold that Ne'ilah is Davened by day, and they can be discussing a situation where the person already Davened Ne'ilah (the Gemara suggests this possibility later in the Sugya); the Rabanan do not allow Tevilah since Ne'ilah was already Davened and Tevilah b'Zemanah is not a Mitzvah, while Rebbi Yosi allows Tevilah since Tevilah b'Zemanah *is* a Mitzvah. On what grounds, then, does Rav argue with the Beraisa that said Ne'ilah is Davened by day and that it does not exempt one from Ma'ariv?

ANSWERS:

(a) TOSFOS YESHANIM (DH Michlal) says that indeed, since Rebbi Yosi holds Tevilah b'Zemanah Mitzvah according to the Gemara's conclusion, there is no clear proof from this Beraisa that any Tana agrees to Rav and holds Ne'ilah is Davened at night. But where does that leave Rav? How can Rav be arguing with the Tana of a Beraisa?

A simple suggestion would be that Tosfos Yeshanim means that we will have to fall back on the principle of "Rav Tana Hu u'Palig" (Rav is a considered a Tana, and therefore he has the authority to argue with a Mishnah or Beraisa). But TOSFOS YOM HA'KIPURIM suggests another interpretation as follows. MAHARI BEN LEV writes in a Teshuvah (1:13&48) that from a question asked by Tosfos in Kidushin (60b DH Aval) it seems that there is one condition under which *any* Amora may argue with a Tana. If it is *at all possible* to interpret another Tana as arguing with the first Tana, even though it cannot be conclusively proven, the Amora can assert that he holds it to be a Machlokes Tana'im and he may rule against the first Tana who clearly contradicts his ruling. If so, Rav may assert that he interprets the argument between the Tana Kama and Rebbi Yosi to be whether Ne'ilah is Davened by night or by day (and they are discussing a situation where the person who say Keri did *not* yet Daven Ne'ilah), and he is ruling like the Tana Kama who holds that it is Davened at night.

(b) TOSFOS YESHANIM further suggests that Rav may have held that the "Rebbi Yosi" of the first Beraisa is not Rebbi Yosi ben Chalafta (that is, the normal Rebbi Yosi of the Shas, who holds that Tevilah b'Zemanah Mitzvah), but rather it is Rebbi Yosi b'Rebbi Yehudah -- the same Rebbi Yosi who holds Tevilah b'Zemanah is *not* a Mitzvah in the second Beraisa. Since the wording of the Beraisos is so similar, Rav did not accept that possibility that the two Rebbi Yosi's in the two Beraisos were two different Tana'im.

How can Rebbi Yosi say that he may be Tovel only until Minchah in the second Beraisa, if he is the same Rebbi Yosi that allowed Tevilah all day long in the first one? It must be that the first Beraisa is discussing when he did not yet Daven Ne'ilah, and the second one is discussing when he already Davened Ne'ilah. In that case, the Rabanan of the first Beraisa (who do not allow a person to be Tovel after Minchah) agree with Rav that Ne'ilah is Davened at night (and therefore he may not be Tovel on Yom Kipur for Ne'ilah).

(That of course only answers the contradictory rulings of Rebbi Yosi, but leaves the rulings of the Rabanan as contradictory. Why do they allow Tevilah all day long in the second Beraisa? We must answer either that they are two different groups of Rabanan, or else that the first Beraisa is not taking into account the Mitzvah of Tevilah. That is, the Rabanan of the first Beraisa mean to say that *if not for* the Mitzvah of Tevilah b'Zemanah, Tefilas Ne'ilah alone would not permit Tevilah by day (as TOSFOS DH Iy d'Matzli suggests -- see CHART #19)

(c) TOSFOS HA'ROSH, citing Maharam, suggests another explanation (REBBI AKIVA EIGER offers the same explanation).

The only way to learn that Rebbi Yosi and the Rabanan both hold that Ne'ilah is Davened by day, is by suggesting that they are discussing a situation where the person already Davened Ne'ilah. There is a problem with understanding the Beraisa like that, though. If they are discussing a person who Davened Ne'ilah, why do the Rabanan of the first Beraisa (and Rebbi Yosi of the second) say that Tevilah is allowed until "Minchah?" Ne'ilah is Davened after Minchah; they should have said "until *Ne'ilah*!"

It is because of this that Rav preferred to learn that Rebbi Yosi and the Rabanan are arguing over whether Ne'ilah is Davened by day or by night (and the Rabanan of the first Beraisa -- and Rebbi Yosi of the second -- hold that Ne'ilah is said by night). Now the wording of "until Minchah" is appropriate; Ne'ilah is not Davened by day and cannot allow Tevilah to be performed on Yom Kipur.

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