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Aside from tefillah, what is another halachah that requires a minyan?

Rabbi Shmuel Wise, Maggid Shiur of RealClearDaf.com

This week, on 15a, we learned about appraising land that had been donated to the Beis Hamikdash for someone who wishes to redeem it. The mishnah taught that the appraisal must be conducted by ten men, one of whom is a kohen. Shmuel there provides the source for this halachah: in the passage that discusses the appraisal of various consecrated assets, the Torah mentions the word “kohen” ten times, giving us the total number of appraisers required.

Our intuition would say that, okay, if the Torah says kohen ten times, then ten kohanim should be required for the job. Not so, Shmuel explains. Indeed the first time the Torah mentions the word kohen, it teaches us that appraiser #1 must be a kohen – not a yisrael. Then the Torah says the word kohen again. This, Shmuel explains, is a case of “an exclusion after an exclusion.” Meaning that the Torah already excluded a yisrael from the job the first time it said the word kohen. It then could have conveyed that ten appraisers are required some other way. Yet the Torah chose to introduce appraiser #2 by repeating the exclusionary term “kohen.” The Torah wouldn’t redundantly exclude the same thing twice, so we say, that the Torah actually means to include, that is, appraiser #2 can even be a yisrael!

Shmuel takes for granted that the same rule of “an exclusion after an exclusion = an inclusion” applies to the rest of the kohen repetitions as well, hence, nine out of the ten appraisers may be yisraelim. Rav Huna attacks Shmuel on this point. Rav Huna argues that the “an exclusion after an exclusion = an inclusion” rule should only yield five inclusions here. Here’s why: once the Torah taught an inclusion with kohen #2 and stopped there (and taught the requirement for ten appraisers some other way), the halachah would be that only one of the ten appraisers has to be a kohen. But then the Torah says the word kohen a third time. Since kohen #2 was an inclusion, kohen #3 is actually an “exclusion after an inclusion,” or in other words, a regular old exclusion. Then with kohen #4, you guessed it, we have another inclusion by way of “exclusion after exclusion.” This seesawing between inclusion and exclusion should continue until kohen #10, yielding five exclusions and five inclusions. Thus five of the appraisers should have to be kohanim, not just one.  The Gemara capitulates with the word, “kashya,” i.e. it’s indeed a problem and there’s no clear answer.

The commentators teach us then when the Gemara concludes with the word “kashya” it means that the Gemara leaves open the possibility that a viable answer exists (as opposed to “teyuvta,” “it has been refuted,” which is basically the Talmudic equivalent of a KO). So let’s try something to defend the honor of the holy Shmuel. Here’s what I would suggest: Shmuel could perhaps counter that if the Torah wanted to require five kohanim for the job it would’ve conveyed this point in some more direct fashion that the above seesaw endeavor between “exclusion” and “inclusion.” So we stop this process by kohen #2. The result is that the Torah has conveyed a simple message: only do the kohen exclusion once; everyone else can be yisraelim. The rest of the kohanim repetitions are there just a means of adding the remaining number of people. The exclusion/inclusion process though has already been exhausted.

Can kings or kohen gadols do yibum or chalitzah?

The first mishnah of the second perek which we began this week (18a) discussed these issues. The mitzvah of yibum arises in the event a man dies childless, leaving a widow and surviving brother behind. The Torah says that ideally the surviving brother should enter into the levirate (yibum) marriage with the widow and thereby perpetuate the name of his deceased brother. One must appreciate the novelty of this mitzvah given that a union with a brother’s wife (even after divorce or the brother’s death if he did leave children) is normally considered incestuous. Yet, in the yibum circumstance, the Torah suddenly considers this union to be a mitzvah! If yibum marriage isn’t practical, then chalitzah is done to free the widow to marry someone else. In the chalitzah ceremony, the court has the widow spit in front of the brother who refused her, and she removes his shoe.

It comes as no surprise that the mishnah forbids chalitzah where the surviving brother happens to be the king of the Jewish people. Clearly this degrading procedure is not something befitting for a king. But the mishnah also forbids the king from performing yibum. Why? What is degrading about marrying the widow? Rambam (Melachim 2:3) implies that indeed there is nothing degrading about yibum. It’s just that there is a halachic link between yibum and chalitzah that says: if one isn’t eligible for chalitzah, he’s not eligible for yibum either. Rashi on 19b, however, suggest that yibum too is degrading, for the brother is “perpetuating his brother’s name.” What could Rashi mean by this?

Rashi seems to be saying that yibum is a difficult mitzvah because, to a degree, it entails living someone else’s life. Normally when someone builds a family it provides the gratifying sense of building a legacy – for himself. In yibum, however, the brother acts essentially as an agent to build someone else’s legacy – a humbling mitzvah that crosses the threshold of an act that is deemed too far beneath a king’s dignity to do.

As far as a kohen gadol, the mishnah rules that he may not perform yibum because the Torah expressly prohibits a kohen gadol from marrying a widow. The Gemara (19a) wonders: true, the negative commandment says that this kohen gadol should not marry her, but the mitzvah of yibum says that he should marry her. The halachah is that where a conflict exists between a positive commandment and a single negative commandment (lashes-level or lower), the positive commandment overrides the negative one – so this kohen gadol should do yibum! The Gemara answers that on the biblical level, yibum is justified, however the Rabbis decreed against doing yibum here. Why? Because allowing a kohen gadol to be intimate with this widow can only be justified the first time when the mitzvah of yibum is actually being fulfilled. Once the mitzvah has been fulfilled it reverts to a union that is biblically forbidden. The rabbis were concerned that if we allowed yibum at all, they might be intimate a second time and violate a Torah prohibition.

But, wait a second, I thought we said earlier that intimacy with a brother’s wife is normally a severe prohibition, and the prohibition is superseded by the mitzvah of yibum. We should therefore challenge the idea of ever practically doing yibum since we should say as above: once the first act is done and the mitzvah is over, it should now be regarded as an incestuous relationship (yet the halachah of course is that the couple can remain married)!

One could answer this question by recalling the distinction the Gemara made back on 12b between a “pushing off” permit and a “total” permit. Sometimes, such as in the case of a kohen gadol who falls in yibum to this widow, the Torah is merely pushing off the prohibition in face of the mitzvah. Pushing off requires an ongoing reason to justify pushing off the prohibition. As soon as that reason goes away (e.g. the yibum mitzvah was fulfilled) the prohibition will snap right back – as opposed to the “brother’s wife” prohibition of every yevama (widow in a yibum situation) where the Torah completely permits that prohibition. Essentially the Torah says that vis-à-vis her yavam (brother who does the yibum) the brother’s wife prohibition doesn’t exist. That’s why there’s no discussion about any snap-back prohibition in a typical case of yibum.

It is interesting that even though a king may not do chalitzah, as it is beneath his dignity, a kohen gadol does do chalitzah. Apparently, although of course a kohen gadol is a very prominent position, chalitzah is not considered beneath the honor of this office – only for the highest leader, the king himself. But then things get very interesting when the Gemara on 18b questions the mishnah’s ruling that a kohen gadol may testify on someone’s behalf. “How could the mishnah allow a kohen gadol to testify,” the Gemara wonders, “isn’t this beneath his dignity?” The Gemara concludes that, yes, it’s beneath his dignity, and the mishnah only permits the kohen gadol to testify in an unusual case where it’s not beneath his dignity.

Question: the mishnah rules that is it not overly degrading for the kohen gadol to partake in chalitzah. Recall that chalitzah entails having the widow spit in front of the brother. If that isn’t overly degrading why does the Gemara feel strongly that testifying for someone is?

Perhaps the answer is that with all of the potentially humiliating aspects of chalitzah, ultimately the choletz (man in the chalitzah) does experience the empowering sense that he is the one needed to release this women to marry. This contrasts against the chore of testifying on someone’s behalf where a witness, during which he is pretty unlikely to feel any great sense of having a great role in the process. The Gemara therefore considers this process to be completely unacceptable for a kohen gadol.