Daf Ditty Yevamot 12: “‫”שׁוֵֹמר ְפָּתִאים ה‬

Psalm 116:6

In the rabbinic tradition, this verse takes on an entirely different and quite important meaning.
The verse represents a principle of Jewish law (halakha) that permits people to assume various
low-level risks and dangers. Risk may be taken because, as the verse states, the deity protects
people who are "simple" (‫אם‬ ‫) יפת‬. In Jewish ethics and law, the principle of "The Lord protects
the simple" has been applied at times to permit cigarette smoking, circumcision at inauspicious
moments, bloodletting, unprotected intercourse for women perceived to be at risk, and such
instances as the marriage of a woman whose previous two husbands had died ("isha katlanit")

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2
§ Incidental to the case of refusal, the Gemara cites a related halakha. Rav Beivai taught a baraita
before Rav Naḥman: Three women may engage in relations with a contraceptive resorbent, a
soft fabric placed at the entrance to their wombs to prevent conception, despite the fact that this
practice is generally prohibited.

They are as follows: A minor, a woman who is already pregnant, and a nursing woman. The
baraita specifies the reason for each exception: A minor may do so lest she become pregnant
and perhaps die; a pregnant woman, lest she be impregnated a second time and her previous
fetus becomes deformed into the shape of a sandal fish by being squashed by the pressure of the
second fetus.

As for a nursing woman, she does so lest she become pregnant and her milk dry up, in which case
she will wean her son too early, thereby endangering him, and he will die.

Tosefta Nidda 2:4

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4
And the baraita continues: Who is considered a minor? It is a girl from the age of eleven years
and one day until the age of twelve years and one day. If she was younger than this or older
than this, she may go ahead and engage in relations in her usual manner. This is the statement
of Rabbi Meir. Since it is assumed that a minor who is less than eleven years old cannot become
pregnant, she is considered to be in no danger.

And the Rabbis say: Both this one and that one, i.e., in all these cases, she may go ahead and
engage in relations in her usual manner, and Heaven will have mercy upon her and prevent
any mishap, since it is stated:

‫ַימי‬ ;‫ה ָטּה ְאזנוֹ לי‬-ִ‫ב ִכּי‬ 2 Because He hath inclined His ear unto me, therefore will I call

.‫ְק ָרא‬ upon Him all my days

‫ֶא‬
Ps 116:2

“The Lord preserves the simple”

The Gemara analyzes the baraita: From the fact that the baraita states: Lest she become
pregnant and perhaps die, this indicates by inference that there is a minor who can become
pregnant and will not die, although the conditions for this scenario of a minor giving birth and
surviving are unclear. If so, that a minor might be impregnated and give birth, we find the case of
one’s mother-in-law who refused her husband. Since it is possible for a woman to give birth to
a daughter while still a minor, if a man betroths this daughter while still an infant, the mother might
be a mother-in-law who performed refusal.

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And yet we learned in the mishna: You cannot say, i.e., the possibility does not exist, in the case
of his mother-in-law, his mother-in-law’s mother, and his father-in-law’s mother, that they
were found to be an aylonit or performed refusal, as refusal may be performed only by a minor,
who cannot give birth. If so, there is apparently a contradiction between the mishna and the baraita.

The Gemara answers: Do not say: Lest she become pregnant and perhaps die, which indicates that
it is possible for her not to die from the impregnation. Rather, say: Lest she become pregnant
and die. In other words, although it is uncertain whether she will be impregnated, if she does
become pregnant she will certainly die, which means that there is no case in which a minor could
give birth and live.

As Rabba bar Livai said: There is a limit with regard to her pregnancy, i.e., that of a young
girl. Before this time, the age of eleven, she cannot be impregnated at all. During this time,
from age eleven to twelve, she dies, and her fetus dies. After this time, from twelve onward, she
lives, and her fetus lives.

Summary

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 Birth Control for Girls1

The rabbis debate whether or not three categories of women can use birth control: minors, pregnant
women, and nursing women.

They spend much time discussing minors, as these girls might lose their ability to refuse their
husbands; they might be 'set up' to be in forbidden relationships. There is talk of betrothal to
infants, intercourse being fine with girls under age 11 or over age 12, and the benefits of the ability
to get pregnant as a marker of sexual maturity. There is no mention of the punishments for men
who impregnate girls and put those girls or their children at risk.

The women are said to be using absorbent cloths inserted into the vagina either before or after
intercourse. Again, there is no mention of men's responsibility to refrain from having intercourse
with minors, pregnant women, or nursing women.

The notion that intercourse is a holy obligation can be a beautiful thing between two consenting
partners. But when that obligation forces men to rape girls without consequence to themselves,
there is something terribly amiss.

I can tolerate most of this ancient rites, rituals, and practices with interest, wonder and incredulity.
But today's daf leaves me unable to reinterpret or apologize for the text. It is simplyunfathomable
to treat girls with such little regard.

Rav Avrohom Adler writes:2

Rav Lili bar Mammal said in the name of Mar Ukvah, who said in the name of Shmuel: The co-
wife of a wife who refused the yavam is forbidden. (A girl whose father had died could be given
in marriage while still a minor (under the age of twelve) by her mother or older brother. This
marriage is only valid Rabbinically. As long as she has not attained the age of twelve, she may
nullify the marriage by refusing to live with her husband. This act of refusal, referred to as mi’un
nullifies the marriage retroactively. Our Gemora follows the opinion cited later (107a) that a minor,
whose husband had died childless, may refuse the yavam, as well, which retroactively nullifies the
original brother’s marriage.)

The Gemora asks: To whom is she (the co-wife) forbidden? If you will suggest that she is forbidden
to the brothers(of the refused yavam), it may be retorted, as follows: Now that she herself (the one

1
http://dafyomibeginner.blogspot.com/2014/10/
2
http://dafnotes.com/wp-content/uploads/2015/08/Yevamos_12.pdf

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who refused) is permitted (to the other brothers), for Shmuel said: If she refused one brother, she
is permitted to marry the other brothers; is there any question then that her cowife is permitted?
Therefore, it must be referring to himself (the co-wife of the woman who refused is forbidden to
the one who was refused).

The Gemora asks: Where, however, does the one who refused differ that she is in consequence
permitted to the other brothers? Obviously, in that she had taken no action towards them; but her
co-wife as well had taken no action towards them!? The Gemora answers: It is an enactment made
to prevent marriage with the co-wife of one's daughter who refused him.

[The Gemora will explain why the cowife of the yavam’s daughter who refused is forbidden to
him. If we would permit the co-wife of an ordinary minor to the yavam, people would become
confused, and permit the case of the daughter as well.]

The Gemora asks: Is, however, the co-wife of one's daughter who refused him forbidden? Surely
we learned in our Mishna: However, regarding all these women, if they died, or if they refused ….
their co-wives are permitted. Now, against whom was the declaration of refusal made? If you will
suggest that she refused the husband, then this case is identical with that of a divorced woman (for
in both cases, the marriage was dissolved in the lifetime of the husband and the wife; what would
be the necessity to mention both)? Consequently, it must refer to refusal of the yavam (and yet the
Mishna teaches that her co-wife is permitted)!?

[This would seem to indicate that any forbidden woman – including one’s daughter, who falls to
yibum, and then refuses the yavam, her co-wife is permitted to him!?]

The Gemora answers: No; it may, in fact, refer to the refusal of a husband, but there are two kinds
of divorce (mentioned in the Mishna). The Gemora asks: Wherein, however, does the refusal of a
husband differ (that her co-wife would then be permitted to the yavam)? Obviously - in that she
thereby uproots the original marriage (in a way that when the husband died, the co-wife is not
regarded as being the co-wife of a forbidden woman); but when she refused the yavam, she has
also uprooted (retroactively) the original marriage (and therefore, the co-wife should be
permitted)!?

The Gemora answers: It differs in respect to that which Rami bar Yechezkel taught, for Rami bar
Yechezkel taught the following braisa: If a woman refuses her husband, she can marry his father
(as she essentially was never married to her ex-husband). However, if she refuses her yavam, she
cannot marry his father. This is because her falling to yibum creates an appearance that she is
actually his daughter-in-law (and therefore forbidden to her yavam’s father). So too, the Gemora
states, the fact that the co-wife already became a cowife of his daughter when she fell to yibum
(and it gives the appearance that the marriage of the minor who is related to the yavam was indeed
an effective marriage). Hence, even if the minor will refuse the yavam, there will still be an
appearance of being a cowife of his daughter, and we cannot allow her to have yibum.

Rav Assi rules: The co-wife of an aylonis (an adult woman who did not develop any signs of
female puberty and is incapable of bearing children) is forbidden to be taken in yibum. It is written

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regarding yibum [Devarim 25:6]: It shall be the firstborn – if she can bear. This excludes an
aylonissince she cannot bear children.

Rav Sheishes asks: The Mishna (31b) states: There were three brothers who were married to three
unrelated women, and one of them, Reuven died. The second brother, Shimon married the
yevamah by ma'amar (Biblically, the yavam cohabits with the yevamah, thus acquiring her. The
Rabbis established ma’amar, the betrothal of a yevamah as a prelude to yibum.), and he died.
Reuven’s original wife falls for yibum to the third remaining brother, Levi. Levi must perform
chalitzah, but he cannot perform a yibum. This is derived from a Scriptural verse which states that
a yevamah can be taken in yibum only if there was a zikah (an attachment on the account of yibum)
from one brother; not when there is a zikah from two brothers.

(The yevamah is doubly subject to yibum, on account of her Biblical marriage with Reuven and
her Rabbinical marriage with Shimon.) Rav Yosef said: This is a case where the co-wife of a
paternal brother’s wife is exempt from yibum only because the wife fell to yibum, and we do not
find anything similar to this in the entire Torah. What is this coming to exclude? Is it not excluding
the case of a cowife of an aylonis that she will be permitted to the yavam? (These are both examples
where a yevamah is forbidden because of her falling to yibum and not on account of being an
ervah.)

The Gemora states that the inference is slightly different. It is excluding the case of a co-wife of
an aylonis but the distinction between the two cases is as follows: The co-wife of the double widow
requires a chalitzah, whereas the co-wife of an aylonis does not even require chalitzah. This is
because an aylonis is Biblically prohibited, whereas the double widow is only Rabbinically
prohibited. The Gemora challenges Rav Assi from our Mishna: However, regarding all these
women, if they died, or if they refused, or if they were divorced, or if they were found to be an
aylonis (an adult woman who did not develop any signs of female puberty and is incapable of
bearing children), their co-wives are permitted.

The Gemora answers: This is not a difficulty at all, for one (Rav Assi) is referring to a case where
he (the deceased husband) knew her defect (at the time that he married her; in that case, the
marriage is a legitimate one), while the other (our Mishna) is referring to a case where he did not
know of it (at the time he married her). [Since her defect was unknown to him, the marriage, which
had taken place under a misapprehension, is automatically annulled. The woman, therefore, is not
his lawful wife, and her cowife cannot be regarded as a legal co-wife. Therefore, the Mishna rules
that such a co-wife is permitted.]

The Gemora notes: The inference from our Mishna also proves this; for it was stated: if they were
found to be an aylonis, and not ‘were.’ This indeed proves it. Rava said: The law is that the co-
wife of an aylonis is permitted, even though he knew her defect, and even the co-wife of one's own
daughter who was an aylonis (is permitted).

[Rava maintains that the co-wife of a forbidden relative is forbidden only where the latter would
have been subject to the mitzvah of yibum if she had been no relative. In the case of a wife who
was an aylonis, however, since she is not subject to yibum even where she is no relative at all, her
co-wife, even where she (the wife) is a forbidden relative, is regarded as the co-wife of one in

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relation to whom the mitzvah of yibum is not applicable at all.And regarding the expression ‘were
found’ in the Mishna, read it (as if it said) ‘were.’

Ravin said in the name of Rabbi Yochanan: The co-wife of a wife who refused the yavam, the co-
wife of an aylonis and the co-wife of an illegally remarried divorcee are all permitted to the yavam.

Rav Bibi cites the following braisa in front of Rav Nachman: Three types of women are permitted
to insert a wad into their bodies prior to engaging in marital relations in order to prevent
conception. They are A minor, a pregnant woman, and a nursing woman. A minor is permitted
because otherwise, she may become pregnant and die. A pregnant woman is permitted because
otherwise, she might become pregnant again, and the second fetus will crush the first one.

A nursing woman is permitted because otherwise, she might be compelled to wean her child,
resulting in his death. The braisa continues: What age minor are we referring to? We are concerned
when the minor is between eleven and twelve years old. If she is younger or older than that, she is
not permitted to cohabit in that manner; these are the words of Rabbi Meir.

The Chachamim disagree with the entire ruling and state that these women should cohabit in the
regular manner and Heaven will have compassion on them (becoming pregnant in these situations
is highly unusual and therefore we prohibit them from utilizing and type of contraceptivemeasures)
as it is written [Tehillim 116:6]: Hashem protects the fools.

The Gemora asks on our Mishna from the braisa: The braisa stated: A minor is permitted because
otherwise, she may become pregnant and die. We can infer that a minor can become pregnant and
not die. This would be inconsistent with our Mishna which stated that you cannot say of his mother-
in-law or his mother-in-law's mother or his father-in-law's mother that they refused (since only a
minor can refuse). Perhaps she is a minor and nevertheless, she can be a mother-in-law because it
can happen that a minor will give birth and live?

The Gemora attempts to answer that a minor will certainly die if she becomes pregnant, for Rabbah
bar Livai said: A girl is subject to an age limitation (regarding pregnancy). Prior to that period
(before her eleventh birthday) she does not conceive at all; during that period (between eleven and
twelve) she dies, and her fetus dies; after that period (after twelve) both she and her fetus survive.
The Gemora asks: But is it really so? Surely, Rabbah bar Shmuel recited: One cannot say of a
man's mother-inlaw, his mother-in-law’s mother and his father-in-law’s mother that they were
found to be an aylonis or that they refused, since they have already given birth to children!? The
Gemora concedes: The reading, in fact, is because she might become pregnant and as a result might
die.

The Gemora asks: But then, the previously mentioned difficulty remains! [why should the women
who gave birth be unable to refuse their husband, seeing that they are still minors?] Rav Safra
answers that having children is similar to the signs of puberty. [Just as a girl with two pubic hairs
after twelve years old indicates that she is an adult, so too, conceiving a child at any age signifies
that she is an adult. This is why the Mishna stated that a mother-inlaw cannot refuse her husband
any longer. Although a minor can give birth and survive, she cannot refuse her husband since she
is regarded as an adult.] Others say that children are even superior to signs of puberty.

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The Gemora asks: What is the practical difference between them? The Gemora answers: Even
according to Rabbi Yehudah, who says (that a girl who has exhibited signs of puberty may still
have a right to refuse) until those hairs give an appearance in that area of more black than white,
nevertheless, he agrees that (if she bears) children (are superior, and she may not refuse any
longer). Rav Zevid answers: We assume that a woman who gives birth developed the signs of
puberty.

The Gemora asks: Why don’t we examine her for signs of puberty? The Gemora answers: We
cannot examine her for the two pubic hairs because there is a legitimate possibility that the hairs
fell out. The Gemora asks: But that is only well according to the opinion who holds that we are
concerned for that possibility; what, however, can be said according to the opinion who holds that
we are not concerned of such a possibility? The Gemora answers that even according to the opinion
who holds that generally we are not concerned for that possibility, here, due to the pains of
childbirth, we are concerned that her pubic hairs fell out. (12b – 13a)

RELYING ON PIKUACH NEFESH L’CHATCHILAH

Reb Elchanon (Kovetz Hearos 23) discusses whether it is permitted for a person to put themselves
into a situation where they will have to use the permissibility of pikuach nefesh (they are in mortal
danger) to permit what otherwise would have been regarded as a prohibition.

Reb Avi Lebovitz3 explains Reb Elchonon: He proves from the Ba'al Hameor who forbids leaving
on a ship within three days of Shabbos because it is likely that you will find yourself in a situation
of pikuach nefesh and have to be desecrate the Shabbos, that it is only a Rabbinical prohibition,
but not Biblical (if it would be a Biblical, it should not matter if it is within three days or more than
three days).

Once it is only a Rabbinical prohibition, we can permit it for shalom bayis purposes. Therefore,
one would be allowed to have relations with a woman for whom it is dangerous to become
pregnant, even though after relations she will use a 'moch' to prevent pregnancy (I am not sure
about the statistical success rate associated with this form of birth control).

This explanation would be necessary if we learn the Gemora to be speaking about a moch (wad)
after relations (Tosfos in the name of Rabbeinu Tam) and would be forbidden if not for pikuach
nefesh. But, according to Tosfos who explains that these three women must use a moch, which
implies that others also are allowed to because there is no prohibition for her to remove the
shichvas zerah (semen) with a moch after engaging in relations, we don't need to come onto the
permissibility of pikuach nefesh.

Reb Elchonon second guesses his proof, that perhaps there is a Biblical prohibition to put oneself
into a situation where pikuach nefesh will have to override the prohibition and no proof can be
brought from the Ba'al Hameor because he may hold that Shabbos specifically is "hutrah,"
(completely permitted) for pikuach nefesh (but other prohibitions which are only "dechuya,"

3
(http://www.hearos.blogspot.com/

11
(overridden), there would be a Biblical prohibition to out rightly put oneself into a situation where
they will have to rely on the license of pikuach nefesh.

At the end he cites a Magen Avrohom (O.C. 248) who questions whether one, who intentionally
put themselves into a situation of pikuach nefesh should rely on it to override Shabbos. Reb
Elchonon explains that by not relying on this permissibility, it comes out retroactively that he did
not do a prohibition by placing himself in that situation. Reb Moshe has a teshuva where he
adamantly disagrees and says that one must use the permissibility of pikuach nefesh to override
Shabbos and save their life.

HASHEM PROTECTS THE FOOLS IS SMOKING INCLUDED?

The Gemora states: Three types of women are permitted to insert a wad into their bodies prior to
engaging in marital relations in order to prevent conception. They are A minor, a pregnant woman,
and a nursing woman.

A minor is permitted because otherwise, she may become pregnant and die. A pregnant woman is
permitted because otherwise, she might become pregnant again, and the second fetus will crush
the first one. A nursing woman is permitted because otherwise, she might be compelled to wean
her child, resulting in his death.

The braisa continues: What age minor are we referring to? We are concerned when the minor is
between eleven and twelve years old. If she is younger or older than that, she is not permitted to
cohabit in that manner; these are the words of Rabbi Meir.

The Chachamim disagree with the entire ruling and state that these women should cohabit in the
regular manner and Heaven will have compassion on them (becoming pregnant in these situations
is highly unusual and therefore we prohibit them from utilizing and type of contraceptivemeasures)
as it is written [Tehillim 116:6]: Hashem protects the fools.

Rabbi Winston4 discusses the statement of "G-d protects the fools." It is often used in situations of
halachically- reasonable risk (Shabbos 129b; Yevamos 12b).

For example, when many people do something that may be somewhat risky for one's health, but
statistically, nothing has become conclusive, then halachically, one can continue to perform the
act and not worry about the consequences. Even should there be some latent danger in the act, G-
d will intercede on the person's behalf and protect the "fool." For a long time, cigarette smoking
fell into this category.

Though the Torah is against all kinds of physical addiction for obvious reasons, as long as there
wasn't conclusive proof that the risk factor wasn't as great as we now know it to be, and many
people smoked without negative results, it remained halachically permissible to do so; G-d protects
the fools. However, cigarette smoking is now known to be the number one man-made killer of

4
http://neveh.org/winston/parsha60/

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human beings, and this consciousness has made its way into the Torah world, albeit somewhat
late.

We are no longer "fools" with respect to the effects of cigarette smoking, and, the Poskim (those
who decide Torah-law) have now posted signs asking those who still smoke to begin weaning
themselves from doing so. For years already, however, they have forbidden anyone to start
smoking.

THE LOGIC BEHIND A TZARAH'S EXEMPTION FROM

YIBUM
Rav Mordechai Kornfeld writes:5

Rav Asi states that the Tzarah of an Aylonis is exempt from Yibum. The Torah teaches, "ha'Bechor
Asher Teled..." -- "The firstborn son whom she bears will perpetuate the name of the dead brother"
(Devarim 25:6), which excludes Yibum with an Aylonis who cannot bear children. Since she is
exempt from Yibum she retains the prohibition of "Eshes Ach" and -- as an Ervah to the surviving
brothers -- she exempts her Tzarah from Yibum.

Rava and Rebbi Yochanan disagree with Rav Asi's ruling. They conclude that the Tzarah of an
Aylonis is not exempt from Yibum. The Gemara says that even if an additional prohibition of
Ervah prohibits the Aylonis to the brothers, she still does not exempt her Tzarah from Yibum; an
Aylonis does not fall to Yibum at all, for the Torah exempts her from Yibum entirely.
RASHI (12b, DH Hilchesa) and TOSFOS (8a, DH Trei) explain that despite the fact thatthe Tzarah
must perform Yibum, from the perspective of the Aylonis she is considered as thoughshe is married
to an outsider and not to a brother who died childless and whose wives fall to Yibum.The case of an
Aylonis seems similar to the case of "Eshes Achiv she'Lo Hayah b'Olamo."

In both cases, the Torah exempts the woman from Yibum ("Asher Teled" in the case of an Aylonis,
and "Yeshvu... Yachdav" in the case of an "Eshes Achiv she'Lo Hayah b'Olamo"). However, the
Mishnah (2a, 17a) clearly states that the latter does exempt her Tzarah from Yibum, even though
the Torah specifically exempts the woman herself! Why does an Aylonis not exempt her Tzarah
from Yibum, even though the verse exempts the Aylonis herself? What is the difference between
the two cases?

Indeed, the case of an Aylonis and the case of an "Eshes Achiv she'Lo Hayah b'Olamo" are the
same. The only difference between the two cases is that the case of an Aylonis is one of
"Nefilah Rishonah." That is, the woman is an Aylonis at the time her husband dies, and the verse
specifically exempts her from Yibum for that reason. She does not fall to Yibum at all, and
therefore her Tzarah does not have the status of a "Tzaras Ervah." (It is obvious that the woman is
still an Aylonis when she is subject to Yibum, because an Aylonis' status never changes.)

5
https://www.dafyomi.co.il/yevamos/insites/ye-dt-012.htm

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The Mishnah, however, is discussing a case of "Nefilah Sheniyah" of an "Eshes Achiv she'Lo
Hayah b'Olamo." That is, the woman fell to Yibum in the past, before a brother was born to her
husband. At that time, another brother performed Yibum with her. Now, her second husband (the
second brother) dies, and again she is subject to Yibum. She is exempt from Yibum,but
not because of the specific exemption of "Eshes Achiv she'Lo Hayah b'Olamo," since the two
brothers (the second and the third) were alive at the same time.

Rather, she is exempt from Yibum because she was an "Eshes Achiv she'Lo Hayah b'Olamo" the
first time she fell to Yibum, and therefore this time she is prohibited because of "Eshes Ach she'Lo
b'Makom Mitzvah." Since the Torah does not specifically exempt her from Yibum this time, but
she is exempt because she is an Ervah, she exempts her Tzarah from Yibum.

(It is obvious that the Mishnah refers to a woman who once was an "Eshes Achiv she'Lo Hayah
b'Olamo" but is no longer an "Eshes Achiv she'Lo Hayah b'Olamo" the second time she is subject
to Yibum. The Mishnah discusses the status of her Tzarah, who is not an "Eshes Achiv she'Lo
Hayah b'Olamo." When a brother is born after his childless brother dies, all of the Yevamos are
equally exempt from Yibum due to the exemption of "Eshes Achiv she'Lo Hayah b'Olamo.")

The reason for this distinction is as follows. The Halachah that a woman who is an Ervah to the
surviving brother exempts her Tzarah from Yibum has a logical basis. The logic is that Kidushin,
the bond of marriage, cannot take effect with an Ervah (Kidushin 67b). The bond of Yibum, called
Zikah, is similar to Kidushin in that it forms a connection between the Yevamah and the Yavam.
If the Yevamah is an Ervah to the Yavam, then just as the bond of Kidushin cannot take effect
between the two, so, too, the bond of Zikah also cannot take effect. The Mishnah (41a; see
also TOSFOS to 16a, DH Bnei) says that for this reason if a woman falls to Yibum and then one
of the surviving brothers performs Kidushin with her sister, rendering the Yevamah an "Achos
Ishah" to him (the sister of his wife), he removes the Zikah for Yibum between the Yevamah and
that brother.

The Rishonim themselves make this point with regard to performing Yibum with a woman to
whom one is prohibited because of a Lav. The Gemara (9a) says that according to Rebbi Akiva
who maintains that Kidushin does not take effect with a woman who is prohibited to the man with
a Lav, a woman who is prohibited with a Lav does not perform Yibum or Chalitzah (and exempts
her Tzarah from Yibum). TOSFOS (9a) asks that there is no source in the Torah that Chayavei
Lavim are exempt from Yibum. The Torah teaches only that Chayavei Kares are exempt from
Yibum (through the Hekesh of Rebbi Yonah (8a) which compares all Chayavei Kares to "Achos
Ishah," or, according to Rava, through the principle of "Ein Aseh Docheh Lo Ta'aseh she'Yesh Bo
Kares"). Therefore, a woman who is prohibited only with a Lav should be required to do Yibum
even according to Rebbi Akiva!

The Rishonim (see RAMBAN, RASHBA, RITVA ibid.; see also RAMBAN to 20b and Insights
there) answer that the exemption from Yibum for an Ervah who is prohibited by Kares shows that
the reason is not merely that the Torah exempts specific types of prohibited women from Yibum,
but rather that in any situation where Kidushin cannot take effect, Zikah also cannot take effect. If
Zikah cannot take effect, there is no Mitzvah of Yibum (and the Isur of "Eshes Ach" remains).

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Therefore, according to Rebbi Akiva who says that the Kidushin does not take effect for Chayavei
Lavim, the verse which teaches that Chayavei Kares are exempt from Yibum also teaches that
Chayavei Lavim are exempt, because the same logic applies to both: since the Kidushin does not
take effect, Zikah also does not take effect.

(Although Rava asserts that no verse is used to teach that Chayavei Kares cannot perform Yibum,
he says that only according to the Rabanan. According to Rebbi Akiva, the verse is used to teach
that a woman with whom Kidushin does not take effect does not fall to Yibum, whether she is
prohibited by an Isur Kares or only by a Lav. From this verse he derives that Chayavei Lav cannot
perform Yibum.)

This approach explains why an Ervah exempts not only herself but also her Tzarah from Yibum.
When a woman who is an Ervah to the brother falls to Yibum, she breaks, or disrupts, the Zikah.
However, she breaks not only her own Zikah-connection to him, but she breaks the entire Zikah
to that brother, so that all of her Tzaros are also exempt from Yibum. This is because there cannot
be a "half" Zikah; once part of the Zikah (her own) is broken, the entire Zikah of the house to that
brother is also broken.

This manner of breaking of the Zikah functions only when the Ervah was fit to do Yibum, but her
Ervah-status prevented the Yibum and "broke" the Zikah. In contrast, in the case of an Aylonis,
her status of "Eshes Achiv she'Lo Hayah b'Olamo" does not "break" any Zikah. There was no
cause for her to have Zikah to the brothers in the first place because the Torah specifically exempts
her from the laws of Yibum. Since her status as an Ervah does not break her Zikah (since there is
none), it also does not break the Tzarah's Zikah, and thus the Tzarah remains obligated to do
Yibum.

MARITAL RELATIONS WITH A "MOCH"

Rav Bivi quotes a Beraisa in which Rebbi Meir says that there are three women who may use a
Moch during marital relations: a Ketanah (minor), Me'uberes (a pregnant woman), and Menikah
(a nursing mother). The Gemara explains that a Ketanah is any girl between the ages of eleven and
twelve. Before the age of eleven, however, she may not use a Moch. The Chachamim disagree
with Rebbi Meir and rule that no women should use a Moch; rather, they should have relations in
the normal manner and Hash-m will protect them ("Shomer Pesa'im Hash-m").

What is the Halachah in situations other than the three situations mentioned in the Gemara (and in
the three situations according to the Chachamim)? Is the use of a Moch permitted?

(a) RABEINU TAM (cited by TOSFOS) writes that a woman is always permitted to insert a
Moch after the act, because no prohibition is involved in such an act. The man transgresses no
prohibition when the woman inserts a Moch after the act; he is no different from a man who lives
with a woman who cannot have children (such as an older woman) -- as long as the act is done in
the normal manner, he may live with her. The woman also transgresses no prohibition when she
inserts the Moch, because women have no prohibition against destroying Zera. When Rebbi Meir

15
says that three women may use a Moch, he means that they are obligated to do so, to protect
themselves from danger. The Chachamim who disagree maintain that the women are not in severe
enough danger to obligate them to use a Moch. They are permitted not to use one, but they may
use one if they choose to do so.

(b) RASHI (here and in Kesuvos 39a) writes that these three women are permitted (but not
obligated) to use a Moch according to Rebbi Meir. This implies that the Chachamim maintain that
they are prohibited from using a Moch. TOSFOS and other Rishonim seem to understand that
Rashi refers to a Moch which a woman inserts after the act, as Rabeinu Tam explains. Rashi is
saying that under normal circumstances such a Moch is prohibited. Apparently, Rashi maintains
that the woman is also prohibited from destroying Zera.

The Rishonim question Rashi's explanation that when Rebbi Meir says "three women use a Moch,"
he means that they are only permitted, but not obligated, to use a Moch. If Rebbi Meir merely
permits, but does not obligate, the women to use a Moch, then when he says that a girl below the
age of eleven should have relations in the normal manner, he must mean that she is prohibited from
using a Moch. The Gemara, however, says that a girl below the age of eleven cannot become
pregnant. Why, then, should she be prohibited from using a Moch? There is no destruction of Zera
involved if she uses a Moch, because the Zera would not have produced children in any case!

Rashi in Nidah (45a) addresses this question when he writes that the statement "three women use
a Moch" means that "it is beneficial for them to use a Moch." Rashi means that the words
"Meshamshos b'Moch" mean only that the use of a Moch benefits them in some important way.
Since it benefits them in some way, its use is permitted in these cases, even though the Moch is
usually prohibited. This implies that for a minor under the age of eleven and for all other women,
a Moch provides no benefit. Since it provides them with no benefit, for some women the Moch is
prohibited (for all other women), and for others its use is not recommended (for a girl under the
age of eleven). Accordingly, Rashi's words in Nidah complement his words here. (RITVA)

REBBI AKIVA EIGER (Teshuvos #71, 72) concludes that this is the majority opinion among
the Rishonim.

(c) TOSFOS (in Kesuvos 39a) and the TOSFOS HA'ROSH understand that Rashi refers to a
Moch which is inserted before the act of relations, as the simple reading of Rashi implies. These
three women are permitted to use a Moch, while all others are prohibited. Why may a woman
insert a Moch before the act? Inserting the Moch before the act causes the man to actively destroy
his Zera by releasing it into a Moch, which is forbidden mid'Oraisa! Why is he permitted to have
relations when the woman is using a Moch? He should be prohibited from performing the act with
a Ketanah (or Me'uberes or Menikah) any is not permitted to perform the act with a Moch.

TOSFOS (in Kesuvos) explains that one is permitted to use a Moch because of the Mitzvah of
Onah. That is, since the man fulfills the Mitzvah of Onah, he is not considered to be destroying
the Zera in vain, even if the woman uses a Moch. Tosfos proves this from the fact that a man is
permitted to have relations with an older woman even though he knows that the Zera will be
destroyed and will not be productive.

16
The other Rishonim (cited in (b) above) do not accept Tosfos' comparison between relations while
using a Moch and relations with an older woman. They maintain (as Tosfos here writes) that the
reason why relations with an older woman is permitted even though the Zera will not be productive
is that the act is done in the normal manner. The Torah does not place a limitation on the age of
the woman one may marry, and thus the normal manner of relations is never considered an act of
Hashchasas Zera, even when the Zera will not be productive because of natural reasons. In contrast,
when a woman inserts a Moch before the act, the act then is not done in the normal manner because
the Zera is prevented from reaching the womb, and therefore it is prohibited.

(The dispute between this opinion and the previous one apparently depends on the definition of
"destruction of Zera" ("Hashchasas Zera"): According to the second opinion, Hashchasas Zera is
defined as any act which causes the Zera not to be used for any positive purpose (such as to
procreate or to fulfill the Mitzvah of Onah). According to the first opinion, Hashchasas Zera is
defined as any act which prevents Zera specifically from procreating.)

Steinzaltz (OBM) writes:6

On a Biblical level, a father has the ability to arrange a marriage for his daughter while she is still
a minor. Although this is not practiced today, there were periods in Jewish history when for
financial or security reasons it was important for a young girl to be married to ensure her future or
her safety. Based on this rule being mentioned in our Mishnah (2a), the Gemara discusses certain
details of such relationships. This is one of the basic sources in the Talmud that deals with issues
of birth control.

Rav Beivai taught a baraita before Rav Nachman. Three categories of women may use a mokh (an
absorbent cloth) while engaged in marital relations – a minor, a pregnant woman, and a nursing
woman. The minor, because she might become pregnant and as a result might die; a pregnant
woman, because she might cause her fetus to degenerate into a sandal (a formless creature); and a
nursing woman, because she might have to wean her child prematurely, which may result in its
death. What is the age of such a minor? From the age of eleven years and one day until the age of
twelve years and one day. One who is under or over this age must carry on her marital intercourse
in the usual manner. This is the opinion of Rabbi Meir. The chachamim say that all women should
carry on marital intercourse in the usual manner, and heaven will have mercy on them (i.e. no harm
will come to them), based on the passage that states (Tehillim 116:6) Hashem preserves the simple.

The rishonim differ as to how to understand this baraita, and what its implications are forthe
halakhah. According to Rashi, the discussion is whether a woman can insert a physical barrierinto
her vaginal canal as a means of birth control. Rabbi Meir’s position is that a woman who hasreason
to fear that pregnancy will result in a danger to her or to her unborn child is permitted to doso,
although it would be forbidden to other women. Tosafot and others reject Rashi’s explanation,
arguing that inserting a mokh during relations would be forbidden. They suggest that the mokh is
an absorbent cloth that is inserted following sexual relations in an attempt to remove the semen.
According to Rabbi Meir, a minor as well as a pregnant or nursing woman would be obligated to
use this mokh in an attempt to keep a potentially dangerous pregnancy from developing (a method
6
https://www.ou.org/life/torah/masechet_yevamot_814/

17
that is recognized today as being of limited use, if any), while other women would be permitted to
do so.

The Tosefta states that if the brother’s wife who is an ‫וה‬ is found to be an ‫ילונית‬ is true, explains

the Tosefta, whether this condition was discovered while the husband was still alive or even after
he died.7

Tosafos notes that the ruling of the Tosefta is significant if viewed from the perspective of R’ Assi,
who states that a co-wife of an ‫ ילונית‬is prohibited to be taken for the mitzvah of yibum. When
the Torah describes yibum, it does so together with the eventuality of the wife being married by
the surviving brother and giving birth to a son who will carry on the name of the deceased husband.
Yet an ‫ ילונית‬is incapable of having a child.

Therefore, R’ Assi rules that the ‫ ילונית‬remains a “brother’s wife who cannot perform yibum,”
and her disqualification results in exemptions for the co-wives from yibum, as well. R’ Assi would
explain that the Tosefta teaches that if this wife was found to be an ‫ ילונית‬while her original
husband was alive, the co-wives are allowed to do yibum. We might have thought that knowing of
her condition, the husband considered her physical limitation and nevertheless accepted her ashis
wife.

The lesson of the Tosefta is that even if the husband knew of it, he was not accepting of it (‫ות‬
‫ ) ח‬and her status as a full-fledged wife is rejected. In this case, the co-wives are therefore not
affected by her ‫ וה‬relationship, and yibum may be done. In other words, the chiddush of the
Tosefta is that yibum may be done even if the wife was known to be an ‫ ילונית‬while the husband
was alive. This is how we can understand the Tosefta from the perspective of R’ Assi.

Rava, however, is of the opinion that the co-wives of an ‫ ילונית‬are always allowed to do yibum.
The only time any‫רצה‬is affected is when the mitzvah of yibum could have applied, had it not been
that the one wife is an ‫ וה‬to the surviving brother.

Accordingly, when a woman is found to be an ‫ילונית‬ ,it is irrelevant whether she is an ‫וה‬ or not,

because yibum cannot be done in her case. She is removed from the equation, and a co-wife is
even permitted to be taken for yibum. What, then, is the lesson of the Tosefta? Tosafos answers
that the ‫ דוש‬according to Rava is in the case where the wife was discovered to be an ‫ ילונית‬after

the death of the first husband. Here, we might have thought that the co-wives should not be able
to do yibum, because at the moment of death, when yibum is to be considered, this woman was
not known to be an ‫ ילונית‬.

18
7
https://www.dafdigest.org/masechtos/Yevamos%20012.pdf

19
This might appear very suspicious to later allow the cowives to perform yibum based upon our
discovery of the ‫ וה‬being an ‫ ילונית‬.The ‫ דוש‬is that yibum is nevertheless allowed.

Rashi’s (1) comments indicate that even if a girl is less than twelve years old she is considered an
adult once she gives birth to a child.

Rambam (2), on the other hand, writes that a girl who is twelve, but has not yet produced the
physical signs of maturity, is considered an adult if she gives birth to a child. This indicates that a
girl who is less than twelve years old is not considered an adult even if she gives birth to a child.

Rav Chaim Halevi Soloveichik (3) explains that even though the Gemara declares that children
are a sign of maturity, the sign is meaningless if the girl has not yet reached the age of maturity.
Giving birth is only significant in conjunction with having reached the proper age.

Poskim inquire whether this sign applies for males as well. There was once a thirteen-year-old boy
who despite not having produced physical signs of maturity did yibum and the yevama became
pregnant. The young man intended to divorce her, but the question arose whether he should do
chalitza after he develops the physical signs of maturity. One could argue that chalitza is required
because yibum performed by a minor is meaningless and since he hasn’t yet produced physical
signs of maturity he is a minor.

On the other hand it could be argued that having children is the same as producing physical signs
of maturity and it can be assumed that he is, in fact, an adult and the yibum was valid. Teshuvas
Maharitatz (4) wrote that although the claim that this young man should be treated as an adult has
merit, nonetheless, his tendency is to rule stringently and require chalitza after the young man
produces physical signs of maturity.

Teshuvas Dvar Avrohom (5) cited opinions who maintain that the rule that children are a sign of
maturity applies even for boys under the age of thirteen. He challenges this opinion from our
Gemara. Even if one were to accept the assumption that regarding this matter there is no distinction
between males and females, nonetheless, there is a dispute whether this rule applies for minors or
only young adults who have not yet produced physical signs of maturity.

Therefore, Teshuvas Dvar Avrohom also hesitates to follow the opinions who would apply this
rule to boys who are minors.

20
Rabbi G. does outreach at a community college on the East coast but found his efforts with a
certain student thwarted when a non-observant acquaintance challenged the newcomer about one
of the issues discussed on our daf.

Citing Yevamos 12b, this other person framed the issue of the possibility of a minor pregnancy
posed in the Gemara as proof that the Chachomim sanctioned sexual abuse, chalilah. Not knowing
how to respond, Rabbi G. deferred the question to a more advanced scholar from Yerushalayim.
After outlining the problem, Rabbi G. said, “Of course I have emunah that there is an answer, but
I can’t pretend that these questions don’t bother me too.

Why is kedushei ketanah permitted to begin with? Surely the child doesn’t know her own mind. I
have heard that earlier generations were different, but how can I explain that to someone with no
background?”

The other Rav explained, “First of all, see the Aruch Hashulchan (37:33) where it clearly states
that nowadays one should not marry off a ketanah, as we find in Kiddushin 41a. Even if the girl is
clearly willing, it is still better to refrain if we have a choice.

Earlier generations married their children off very young only when they had no other option!
Constant persecution meant that a Jew could lose his property suddenly or be forced into exile.
From that perspective, it was seen as the better of two evils to arrange marriages while children
were young, and the dowry was still at hand than to wait on an uncertain future. Also, during times
when people lived more circumscribed lives, it was harder to find a prospective chosson.

If a suitable person was found, it was seen as more provident to secure the match early than wait
and lose the opportunity. A third reason was to avoid the cruel draft laws, because youngsters who
were married were exempt. And a fourth reason was to protect girls from abduction and forced
marriage to the gentiles.

The Rav added, “Don’t think that this only took place long ago. I have a neighbor down the street
who was married off at twelve in Algeria to her second cousin and sent on foot to Israel to escape
the attentions of the local Arab nobleman. This was only sixty-five years ago!”

21
Sara Ronis writes:1

Today’s daf introduces us to a new category of woman: the aylonit.

Rav Asi said: The co-wife of an aylonit is forbidden. As it is stated: “The firstborn that she
bears” (Deuteronomy 25:6), which comes to exclude an aylonit, who cannot give birth.

If a man dies and leaves behind no children but two widows, and one of the widows is an aylonit,
then according to Rav Asi, yibbum is forbidden with both women. Why? Because the biblical
command of yibbum insists that the point of levirate marriage is to have a biological child to carry on
the dead man’s name, and an aylonit cannot get pregnant.

But what is an aylonit? Some have argued that it is a woman who does not develop secondary female
sex characteristics. Professor Hillel Gray has suggested that this might refer to a woman who has XY
chromosomes and female external genitalia, a phenomenon known today as partial androgen
insensitivity syndrome. Though such a person looks like someone born biologically female, they have
no uterus or ovaries, and so cannot actually get pregnant or give birth. But what we know for sure is
that the aylonit is infertile.

In a world without chromosomal analysis, a woman and her potential husband might have had no
idea of her aylonit status and marry assuming that they can have biological children together. But
today’s daf notes that sometimes both parties were aware that the woman was an aylonit and chose
to marry anyway. That awareness had important legal implications.

Today’s daf cites a mishnah which directly contradicts Rav Asi’s statement:

And with regard to all of these women with whom relations are forbidden, if they died, or they
refused their husbands, or were divorced, or were found to be aylonit, their co-wives are permitted.

So while Rav Asi says that the co-wives of an aylonit are forbidden for yibbum, this mishnah clearly
states that they are. How do we resolve the contradiction? The Gemara explains:

It is not difficult. Here, Rav Asi is referring to a situation in which her husband knew that she was
an aylonit. There, in the mishnah, it is referring to a case where he did not know.

Let’s unpack what the Gemara is saying. If a man does not know that the woman he wants to marry
can never have biological children, it is possible that, had he known, he would have chosen to marry
someone else. This possibility calls the marriage into legal question, and opens up space for the
aylonit’s co-wives — the only “real” wives — to perform yibbum. However, if a man does know that
the woman is an aylonit, and chooses to marry her anyway, there is no legal question that he had all
the facts at the time of the marriage, so everyone agrees that the marriage is legal and exempts co-
wives from yibbum.

1
Myjewishlearning.com
22
At this point in our journey through Yevamot, we should not be surprised that the Gemara does not
appear to be interested in the woman’s own discovery of her aylonit status, or in how she feels when
her marriage is called into question. We should also not be surprised that the rabbis complicate ideas
of gender and sex, and recognize that these binaries don’t actually reflect the complexities of human
bodies and human experience.

But I think we can be surprised at the rabbinic recognition that a man might choose to marry an
aylonit knowing that biological children are not in their future together. The whole premise of this
tractate is that children are so essential to a marriage that if a man dies without having conceived any,
his brother is required to step into that void and bed his widow — a law that creates a mountain of
legal tangles (which we will continue to grapple with for more than 100 pages) not to mention untold
emotional upheaval. But here we see an alternative framing of ordinary marriage: The rabbis
recognize that marriage has many functions, not only procreation, and that if both parties enter into a
marriage fully aware of each other’s biological realities, such a marriage is legal and just as sacred as
any other marriage.

Rabbi Johnny Solomon writes:

Our daf (Yevamot 12a) contains a teaching of Rebbi which, though said with respect to the laws of
Yibbum and Halitzah, can be applied to many other realms of life. Specifically, Rebbi’s teaching
states that: ‫‘ – לא ישפוך אדם מי בורו ואחרים צריכים להם‬a person should not spill out extra water [from
their pit] when others need [the water]’.

From a simple reading of this statement we learn the importance of not wasting resources, and it is
noteworthy that numerous halachic authorities cite this teaching to emphasize the mitzvah of
recycling.

However, beyond recycling and other efforts to protect our environment, the word ‘resource’ can be
explained in a broader manner. Accordingly, whenever Rav Aharon Kotler (1891-1962) was in a taxi
with some spare seats, he would ask the driver to stop and pick up people standing by the road who
were looking for a ride towards the same direction (see Kuntress Chaim V’Chessed p. 75). When
asked why he did so, he explained that it was based on this teaching of Rebbi - meaning that he had
something (in this case, a ride) that he could offer to another, and therefore rather than ‘wasting’ those
extra seats, he shared them with others.

However, Rav Kotler didn’t just do this with his physical resources but also with his very self, and
this is why he would make sure to learn Torah with students studying in his Yeshiva who were
struggling to find a shidduch with the knowledge that if people knew that if they were worthy to study
with Rav Kotler, it suggested that they were impressive Torah scholars (ibid.). What this means is
that Rav Kotler understood Rebbi’s teaching to refer not just to physical resources, but also to the
impact and influence that we can have on others.

Significantly, Rav Kotler was not the only one who understood this message, and in our generation,
a Torah leader who gave of himself in so many ways was Rabbi Chaim Kanivesky zt’l (1928-2022)
- who died on Erev Shabbat.

For those unaware, Rav Chaim made himself and his wisdom available to a huge range of people,
23
and through doing so he personified Rebbi’s teaching – which means even more given the notion that
Torah is often compared to water - that, ‘a person should not spill out extra water [from their pit]
when others need [the water]’. Here is just one story expressing this sensitivity as recorded by R’
Krohn in his ‘In the Splendor of the Maggid’ pp. 131-132:
“Many years ago, in Bnei Brak, Rabbi Chaim Kanievsky went to a store to purchase a lulav. The
proprietor gave him a few to choose from. Reb Chaim picked up one, examined it carefully, shook
his head and then put it down. He picked up a second one, looked it over slowly, and that one too
he put down. The third lulav met with his approval. He paid for it and left the store.

Someone who had been watching Reb Chaim in the store found it incredulous. He followed him
outside and said to Reb Chaim’s son-in-law, who had accompanied him, “I can’t get over your
father-in-law’s mazel (good fortune). It takes me hours to find a good lulav and look how Hashem
blessed him. In less than 10 minutes Reb Chaim found a lulav to his liking.”

The son-in-law smiled and said to the gentleman, “Come, walk us home.” When they entered the
apartment, the son-in-law took the man into a room and showed him that Reb Chaim had more
than a dozen lulavim on a table! “You see,” the son-in-law said, “Rav Chaim knows that people
watch his every move.

If he were to go into a store, examine a few lulavim, and leave without buying one, that owner
would not be able to sell another lulav. People would assume that his merchandise is inferior. So
no matter what store he goes into, my father-in-law buys at least one, so as not to hurt the
storekeeper’s reputation.”

What we see from this story is not only great human sensitivity, but also the idea that where we can
positively influence, assist, encourage or endorse others, then we should do so.

24
 Shomer Peta'im Hashem - God Watches Over the Unwise

Rabbi Ari Enkin writes:8

One can't help but notice how so many people routinely engage in dangerous activities without
thinking twice. This conduct seems to contradict the Torah's prohibition against engaging in
anything which may be damaging to one's health.[1] Indeed, we are required to avoid dangerous
activities even more so than ritual prohibitions.[2] Whether it be smoking, air travel, skiing, riding
roller coasters, and even speeding when driving, such activities seem to be tolerated, if not outright
acceptable. How is it permissible for a Jew to do such things?

The justification for engaging in dangerous activities is based on a halachic concept known as
"shomer peta'im Hashem"[3] which translates as, "God guards the unwise." According to this
principle, something which is considered to be a mainstream or routine activity is permitted to be
performed even though it includes dangerous elements. This is true as long as the risks involved
are proven to be negligible.[4]

It is explained that the prohibition against engaging in dangerous activities does not include those
things which most people routinely engage in. As such, one may engage in all recreational sports,
pastimes, and other pursuits even though they may not be completely safe, as long as they are
considered normative activities.[5] Although air travel poses a number of significant risks, one is
permitted to fly since it has become a standard method of transportation despite the dangers
involved.[6]

The principle of shomer peta'im Hashem pertains exclusively to situations where the danger is
minimal and disaster only occurs in a negligible number of cases.[7] Nevertheless, it is permitted
to engage in slightly higher-than-normal risks if doing so is required as part of one's livelihood or
work responsibilities.[8] Even so, any act which poses a direct and immediate risk to one's life is

8
https://outorah.org/p/49805/

25
always forbidden.[9] God does not provide any Divine protection whatsoever for those who
intentionally engage in activities which are considered by most people to be extreme or
exceptionally risky.[10]

An unfortunately all too common habit which many people engage in is smoking. Although one
may be led to believe otherwise, smoking is completely forbidden according to Torah law, as it is
harmful to one's health. [11] While it is absolutely forbidden for one to take up smoking, it is
unclear, however, if those who currently smoke is required to immediately quit. This is especially
true regarding those who started smoking many years ago before it was revealed how dangerous
the habit truly is. Some authorities argue that those who are genuinely unable to quit smoking
qualify under the clause of shomer peta'im Hashem despite the health risks involved.[12] In
addition to smoking, the use of any substances which are harmful to the body are likewise
forbidden.[13] One is even forbidden to purchase cigarettes on behalf of another person, as doing
so is assisting them in harming themselves.[14]

[1] Devarim 4:15

[2] Chullin 9b
[3] Tehillim 116:6
[4] Shabbat 129b, Yevamot 12b, and Nidda 31b, Avoda Zara 30b
[5] Aruch Hashulchan O.C. 3:6
[6] Chelkat Yaakov C.M. 31
[7] Achiezer 1:23
[8] Bava Metzia 112b
[9] Binyan Tzion 1:137
[10] Kovetz Shiurim;Ketubot 136
[11] Rivevot Ephraim 8:586, Tzitz Eliezer 15:39, Aseh Lecha Rav 2:1
[12] Igrot Moshe C.M. 2:76
[13] Bava Kama 92a
[14] Aseh Lecha Rav 6:58, 7:65

26
 Ps 116:6

What are the parameters of shomer pesaim Hashem?

chortkov2 writes:9

While the Torah forbids one to place himself into a situation of danger, some degree of slightly
risky behavior is allowable under the concept of shomer pesaim Hashem. Are the parameters of
this concept based on some objective quantifiable degree of mortality or on generally accepted
behavior among one's peers?

9
https://judaism.stackexchange.com/questions/114750/what-are-the-parameters-of-shomer-pesaim-hashem

27
 If it's the latter, would one look at the generally accepted behavior of his geographic or
philosophical peers? For example, would a Haredi person, living in a Modern Orthodox
community, evaluate generally accepted behaviors in his geographic or philosophical "location"?

Below is a quote from R' Shlomo Zalman Aurebach, written in his responsa Minchas Shlomo (V2,
Siman 37)

‫בה אלא שמצדברא‬,‫ גם אנכי בעניי הסתפקתי טובאז‬, ‫ ועד איפה הוא הגב‬,‫ולענין עיקר הדבר מה נקרא ספק פקו"נ ומה לא‬
‫ וקרינן ביה בכה"ג‬,‫נלע"ד דכל רך רוב בני אדם לברוח מזה כבורח מפני הסכנה הרי"ז חשיב כספק פיקו"נ‬
‫"באבנהליםמופחדים ה "ז חשיב סכנה וכו‬‫ אבל אם ן בנ‬,‫מרתיפאםףא פ"כ ן ' י בהם ולא שימות בהם‬
‫שתן ילותבוזריזותלויפכך אף אם באימתש בזה קצת סכנה הו"ל כמ"ש חז"להואידנא‬
‫יליןעלו‬
‫'וילחלה לחלל שבת עבור כך וכו 'ה‬

According to R' Shlomo Zalman, it is depending on whether it is something that people generally
don't shy away from because of the risk, but perform the activity disregarding the risks involved,
although they still do so somewhat 'cautiously'.

See also Binyan Tzion Siman 137 (Responsa written by the author of Aruch L'ner), who
differentiates between a present danger and a statistical risk. [I'm not sure if this is an accurate
translation. See the tshuva and draw your own conclusions.]

28
 KEEP IT SIMPLE

Pure faith bypasses the mind; it’s rooted in the soul

Baila Vorhand writes:10

(With Rav Moshe Wolfson)

A century ago, Einstein transformed the world of physics with the discovery E=mc2. He was
eminently up to the task of explaining exactly how and why matter converts into energy. I have no
understanding of physics and I therefore have no choice but to simply believe Einstein’s theory of
relativity.

This is what Shlomo Hamelech means when he says “Pesi yaamin l’chol davar, v’arum yavin
la’ashuro — the simpleton believes everything, but the clever one understands properly” (Mishlei
14:15). The smarter a person is, the less he needs to believe those around him, because he can
investigate matters with his rational mind. Only the simple, uneducated, naive person has to believe
what he’s told without question.

Beyond the Mind

When it comes to emunah, however, things are a bit more complicated.

True, if a person insists on only believing in G-d to the extent that his rational mind allows him to
and will then expend exhaustive efforts searching for the true religion, and will do so with sincerity
and honesty, he will in all likelihood discover the principles of emunah. The evidence proving the
existence of Hashem and truth of the Torah is overwhelmingly obvious to the unbiased mind.

However, emunah based on logical observation alone is very limited. Hashem is absolutely and
completely beyond the understanding of the human mind. As the Rambam says, “The mind of a
person cannot understand and is incapable of grasping and investigating Him” (Hilchos
Yesodei HaTorah 1:9).

We’re also told, “Will you find G-d through rational investigation?” (Iyov 11:7) and the Zohar
declares, “No mind can grasp him at all” (Tikuna Shivin 121:71). In addition, in the Shir HaKavod
at the end of Mussaf we say, “I compare You with various descriptions, but I [still] don’t know
You.”

10
https://mishpacha.com/keep-it-simple/

29
Listen to My Painting

Is the problem that we’re not smart enough? No. Even if we were to bump our IQ up to 500, we
would not understand Hashem. We cannot understand Hashem with human intelligence not
because we have too little of it, but because it is the wrong “sense” for grasping G-dliness.

Your friend’s cheeks are pink and her tone animated. “You’ll never believe it! I was in Carnegie
Hall and there was a symphony so beautiful, I was able to see it! I also went to the Museum of Art
where there was a painting so magically beautiful, I was able to hear it!”

Rather than being amazed, you’d regard your friend with concern.

Why are you concerned about your friend’s mental state? Perhaps the song was so marvelous that
she was actually able to see it with her eyes? No. You know that no matter how harmonious a
symphony, it can only be heard; and no matter how masterful a painting, it can only be seen. Each
stimulus can only be absorbed through the sense created to assimilate it.

Similarly, no matter how quick or deep, the human mind cannot understand Hashem, because it’s
the wrong “sense” for grasping G-dliness.

The sense that comprehends G-dliness isn’t the human mind but the Jewish neshamah, which is
chelek Elokai mima’al, a part of Hashem. The more developed and active a Jew’s emunah
peshutah, the more he can experience nearness and connection to Hashem.

The rebbi walks into the beis medrash Erev Shabbos and finds Yankel the shoemaker reciting Shir
HaShirim with tears streaming down his cheeks. “Yankel, do you know what the words mean?”

“Rebbi, who needs to know the meaning of the words when the words alone are so sweet!”

Yankel connected to the emotionally evocative words of Shir HaShirim, not because he understood
their meaning with his mind. His vibrant emunah peshutah allowed him to experience the G-dliness
of the words.

This is why so many gedolei Yisrael rejected chakirah — philosophy, intellectual acrobatics — as
a means to reach emunah. In a play on words, Rav Wolfson notes, “v’ligduloso ein cheiker,” you
cannot achieve an understanding of Hashem’s greatness through chakirah, investigations.

Today, most people are not interested in philosophy because of its abstract nature and, since, by
its own admission, is an unreliable source of truth.

The more a person is in contact with his neshamah, the more he can “understand” Hashem.
Tzaddikim, who are in deep contact with their neshamos have a much greater grasp of Hashem
then average people. We call this ruach hakodesh. In its most developed form, this is nevuah.

30
Follow Your Instinct

Tanya (ch. 18) interprets Dovid Hamelech’s words in Tehillim (73:22), “I am foolish and
ignorant, I am an animal with You,” in a way that would seem to insult our human intelligence.
He teaches, “Because I am foolish and like an animal, that is why I am able to be with You
[Hashem].” What does this mean?

Animals lack rational intelligence. They may display behaviors that seem to imply brilliance, but
they don’t understand the wisdom of their own actions. The bee doesn’t understand the chemical
processes involved in creating honey, nor has the beaver mastered the science of engineering.

Tanya is teaching that if we’re to truly be with Hashem, we have to be like animals. The beaver,
bird, and spider follow their instincts. You, Jewish man, woman, and child, follow your instincts!
Connect to your instinct of emunah peshutah, which is rooted in your neshamah, so that you should
be able to be with Hashem.

“Hashem guards a fool,” a pasuk in Tehillim (116:6) tells us. The Tanya comments on this that a
person who lives like a fool — i.e., he connects to Hashem through his instinctive emunah — will
be protected by Hashem.

Similarly, regarding the pasuk “The Torah of Hashem is true, it makes the fool wise” (Tehillim
19:8), Tanya tells us that a person who allows himself to be a fool — i.e., to connect to Hashem
through instinctive emunah rather than rational emunah — will be able to absorb the wisdom of
the Torah.

Awaken the Connection

How do we awaken our natural, inborn emunah peshutah? We’ve previously discussed learning
Torah, davening, performing mitzvos, and surrounding ourselves with good Jews. Another
powerful way of awakening our instinctive connection to Hashem is merely by bringing it to the
fore of our consciousness.

When faced with the ordinary, everyday temptations of life, or when we feel too lazy to put forth
the energy to daven, learn, or perform mitzvos properly, Tanya advises us to meditate for a few
minutes: “I would go through the worst tortures in order not to deny Hashem’s existence because
my soul is incapable of disconnecting from Hashem. Can’t I give up a little bit of my comfort and
convenience to maintain and strengthen that connection? If I would go through the hottest flames
for Hashem, can’t I bite my tongue, delay that gratification, get off the couch, control an urge, etc.,
for His sake?”

Knowing that real emunah isn’t the product of intellectual understanding, enables us to understand
a puzzling statement of the Baal Shem Tov: “After all my lofty spiritual achievements and sublime
comprehensions of Hashem, bin ich a nar un ich gleib, I’m a fool and I believe.”

31
The Baal Shem Tov understood that the most valuable form of emunah is emunah peshutah. In
order to connect to Hashem, it was more critical that he instinctively believe in Him than that he
understands Him. Simple emunah bypasses the mind, it is rooted in the instincts of the Jewish soul.

In a nutshell: Use your logical mind to understand the world you live in but use the instincts of
your neshamah to try to grasp G-dliness.11

Halachic Musings

Rabbi Yair Hoffman writes:12

In the first week of January, a New Jersey native was Colorado’s first fatality in the 2016 skiing
season. He was actually snowboarding, not skiing. But this does give rise to a question: Is skiing
an activity that halachah permits, or is it forbidden?

11
Originally featured in Family First, Issue 672

12
https://www.5tjt.com/braving-the-slopes/

32
Safety is an extremely important issue in halachah. Many believe that the issue is so important
that there is a mitzvah in the Torah about it. This view, however, is not completely accurate. There
are actually threemitzvos in the Torah that deal with safety. One is “V’nishmartem me’od
l’nafshoseichem” (Devarim 4:15)–the mitzvah of protecting our health and well-being. But there
is another mitzvah six verses earlier (4:9), “Rak hi’shamer lecha u’shmor nafshecha me’od.” This
verse is understood by most poskim to comprise a separate mitzvah to take special care (see Rav
Chaim Kanievsky, Shaar HaTeshuvos #25). The third mitzvah is “Va’chai ba’hem”–“and you shall
live by them” (Vayikra 18:5).

We thus have three Torah mitzvos involving safety

The Ben Ish Chai writes that a person should make every effort to ensure the general safety of
himself and those around him (ParashasPinchas year cycle #2). The Turei Zahav in his
commentary to Choshen Mishpat (427:10) cites a midrash on Shir HaShirim saying that when one
does this and protects himself from dangers and damage, he is protected and receives extraordinary
credit for the mitzvah, too.

Skiing Statistics

So is skiing forbidden?

To ascertain the answer to this question, we first need to ask how many people die annually, on
average, from skiing and snowboarding accidents.

According to the National Ski Areas Association, an average of 38 people in the U.S. are killed
each year while skiing or snowboarding. Colorado accounts for about 25% of these deaths.

33
But there are millions of people who ski each year. In last year’s season, Colorado logged some
12.5 million skier visits. In the entire country, there are some 53.6 million skier visits, as reported
by Snow Sports Industries America.

So what is the death rate for skiing? About 1 in 1.4 million people die when they ski. A person is
more likely to be killed driving his kid to school.

Where do most of the fatal accidents in skiing actually happen? The fatal accidents happen in the
well-groomed blue cruiser trails, where the average speed of skiers ranges from 25 to 40 mph.

Who is most at risk of dying while skiing and snowboarding? It is more dangerous for male skiers.
Dr. Jasper Shealy of the Rochester Institute of Technology has studied ski-related injuries for more
than 30 years. His studies have found that 70 percent of ski-fatality victims are men in their late
teens to late thirties.

Of the 35 national fatalities in the 2014—15 season, 28 were male skiers and one was a female
skier. The other six deaths were on account of snowboarding–and all six of the snowboarders were
women.

Risk Levels In Halachah

There is a fascinating debate between Rav Moshe Feinstein, zt’l, in his IgrosMoshe (C.M. I427:90)
and Rav Chaim Ozer Grodzinsky, zt’l, in his TeshuvosAchiezer (Vol. I #23) as to how halachah
views various risk levels. There is a halachic concept based upon a versein Tehillim (116)
known as “shomer p’sa’im Hashem–Hashem watches over fools.”The Talmud (Shabbos
129b) uses this idea to permit certain behaviors that would otherwise be considered dangerous. It
is utilized in combination with the idea of “kivan d’dashu bei rabbim–

34
since the masses have already trodden there.” We apply the idea that Hashem watches over fools
and permit the item under discussion in terms of halachah.

Rav Feinstein, zt’l, seems to interpret this concept as social acceptability–if the danger is not one
that is socially acceptable, then it is not halachically permitted, because the verse of “va’chai
ba’hem” comes into play and the person would be in halachic violation of endangering himself.
For example, driving 62 miles an hour in a 55-mph zone may be illegal and involve some danger,
but according to Rav Feinstein’s parameters it would not be a violation if it is socially acceptable.
Traveling 90 mph in a 55-mph zone is not socially acceptable and would therefore be a full
violation of halachah as well. Skiing is a socially acceptable form of sport activity. According to
his view, it would probably be permitted.

According to Rav Chaim Ozer Grodzinsky, the concept of shomer p’sa’im Hashem was only
applied in the Talmud to remote concerns and a situation where there is only a small percentage
of danger. It seems to this author that Rav Chaim Ozer is considering empirical data in the
halachic definition of what constitutes a danger much more so than does Rav Feinstein. Rav
Feinstein’s halachic definition is more predicated upon the public perception of the danger.

It would seem that according to both opinions, skiing would be a permitted activity. However,
each person should pose the question to his or her own rav or posek. The author has been told that
one of the gedolei ha’dor had actually forbidden it. It is unclear whether the disapproval was from
the perspective of “What do you need it for?” or whether he holds that it is genuinely forbidden.

Extreme Skiing

On the other hand, extreme skiing is neither socially acceptable nor statistically safe. What is
extreme skiing? It is a form of skiing that is generally performed on long, steep slopes in
mountainous terrain. Typically the slope ranges from 45 to 60 degrees, or grades of 100 to 170

35
percent. The French actually coined a term for it as early as the 1970s. It was called “le ski
extreme.” Among the first practitioners was Swiss skier Sylvain Saudan. In 1967, he made the first
descents of slopes in the Swiss, French, and Italian Alps that were previously considered
impossible.

Conclusion

Older readers will recall the invariable broken leg that often-accompanied ski trips in the past. By
and large this form of injury has been virtually eliminated as the technology of the equipment has
vastly improved since those times. The emphasis upon safety in the sports manufacturing world
has generated great change. These changes could affect the halachah. One thing that has not
changed, however, is that skiing involves a lot of bitul Torah. That being the case, it should only
be done by those who need the diversion.

13

13
https://images.shulcloud.com/562/uploads/ShavuosNightLearning-Risk-in-HalachaShavuos5780.pdf

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Harav Yehuda Amital writes:14

Even though a person it is forbidden for a person to place himself into a situation of danger, and
this may even be prohibited by Torah law, as will be clarified below, we find instances where
Chazal granted an allowance to enter into a perilous situation, based on the verse, "Shomerpeta'im
Hashem," "The Lord preserves the simple" (Tehillim 116:6). This notion appears in severalGemarot.

The Gemara in Avoda Zara (30b) deals with regulations related to the danger of snake
venom, and says: "The opening of a fig does not come under the rules relating to [liquids] left
uncovered…. For it has been taught Rabbi Eliezer says: One may eat grapes and figs at night
without suspecting any harm, for it is stated: 'The Lord preserves the simple.'" And in Nidda (31a)
we read: "It was taught: He who indulges in marital intercourse on the ninetieth day [of pregnancy]

14
https://etzion.org.il/en/talmud/seder-nezikin/massekhet-avoda-zara/shomer-petaim-hashem-1-lord-preserves-simple

51
is as though he had shed blood. But whence could one know this? Rather, Abaye said: One carries
on marital intercourse in the usual manner and 'the Lord preserves the simple.'" Andin
Yevamot (72a): "Rav Pappa said: Hence, no circumcision may be performed on a cloudy day oron
a day when the south wind blows; nor may one be bled on such a day." And the Gemara adds:"At
the present time, however, since many people are in the habit of disregarding these precautions,'the
Lord preserves the simple.'" And similarly in Shabbat (129b): "He who possesses ancestral merit
may let blood on Monday and Thursday, because the Heavenly Court and the human court are
alike then. Why not on Tuesday? Because the planet Mars rules at even-numbered hours of the
day." There too the Gemara adds: "But on Friday too it rules at even-numbered hours? Since many
people are in the habit of disregarding this precaution, 'the Lord preserves the simple.'"

A question may be raised regarding this allowance: Is the permit based purely on the fact
that many people disregard the relevant precautions though the danger remains, or does the fact
that many people disregarding the precaution defined the situation as one that does not pose a
danger?[1] This question might have practical ramifications regarding a person who does not want
to rely on the principle of shomer peta'im. Regarding such a person, do we consider the situation
as one of danger which can set aside a mitzva or a prohibition because of possible piku'ach
nefesh (saving a life), or do we say that the situation is free of all danger to life? Another practical
ramification relates to the question whether reliance on shomer peta'im is considered proper and
recommended behavior, for in such a case there is no danger, or whether pious conduct demands
that one should not rely on it. This question depends on what the Terumat ha-Deshen writes (no.
211, cited by the Bet Yosef, Even ha-Ezer, no. 9) regarding marrying a woman whose was widowed
twice:

The matter requires further study, whether the principle of shomer peta'im applies to a Torah
scholar who knows and recognizes and is regarded as distinguished in his generation. And even
regarding an ordinary person it is difficult to issue an allowance, as there is concern about danger.

The implication is that according to the Terumat ha-Deshen, since it is appropriate for a
Torah scholar to refrain from relying on the principle of shomer peta'im, he clearly maintains that
the danger continues to exist, only that shomer peta'im allows a person to enter into that danger. It
should be noted, however, that the Terumat ha-Deshen implies that it is only about a scholar who
is "distinguished in his generation" that we say that it is fitting that he refrains from relying
on shomer peta'im.

A commonly asked question is whether one is permitted to expose oneself to some remote
danger for the sake of a pleasure trip or some other optional activity. Regarding this matter, Rav
A.Y. Kook wrote to his son R. Tzvi Yehuda (Iggerot Ra'aya, III, no. 852, p. 132):

Regarding an excursion in a place where there is even a remote concern about danger, God forbid,
I have already expressed my opinion, I believe in one of our letter exchanges, that it is not proper.[2]

The Iggerot Moshe (Orach Chayim II, no. 59), on the other hand, implies that under such
circumstances one is permitted to expose oneself to the danger:

52
So too when a person goes off on a journey where the possibility exists that he will be exposed to
a certain danger, but nevertheless he decides to go for some necessary purpose or even for pleasure
– this is permitted with respect to the issue of possible danger, because it is a very remote danger…

This question arises even beyond the context of shomer peta'im. If an individual is worried
about some danger that people don't generally worry about, e.g., he wants to raise the security level
at his house or in his community, more than is commonly accepted – is it permitted for him or
others to desecrate Shabbat because of this concern (to turn on a light, to send out an additional
security vehicle, or the like)? On the other hand, one may ask: What is the level of danger beyond
which one is forbidden to enter? Is the same criterion of danger for which one may desecrate
Shabbat to be applied to determine what is considered a danger to which one is forbidden to expose
oneself? Or can we distinguish between piku'ach nefesh with respect to mitzvot and the definition
of danger with respect to the prohibition to endanger oneself, and say that one is permitted to
expose himself to certain dangers for which one would be permitted to desecrate Shabbat?[3]

II

Logically it might be argued that the rationale underlying all the above-mentioned talmudic
passages is that "many people disregard those precautions," even where this rationale is not
explicitly mentioned, with the fact that many people disregard those precautions proving that there
is no danger in those situations. This is implied in the words of the Rosh (Avoda Zara, chap. 4, no.
7):

Nevertheless, there is reason for leniency regarding [wine touched by] gentiles in our time, since
they do not intend to dabble [in the wine] whatsoever. And furthermore, since non-Jews do not
offer libations in our times, an allowance should be granted. This is similar to exposed liquids,
about which we are not concerned, because snakes are not common among us. [This is true] even
though this is not absolute proof, for libations was a decree enacted by a quorum, and another
quorum is needed to permit it, even though the reason no longer applies. And it is not like exposed
liquids, where the prohibition was enacted only because of the danger, and they made no decree
for in a place where there is no danger. And regarding many matters we do not take precautions,
as it is stated: "The Lord preserves the simple."

Note that the Rosh proves from the fact that there are numerous matters where we do not
take precautions that there is no need to be concerned about matters where the reason for the
prohibition no longer applies. Thus, it is clear that he understood that the principle of shomer
peta'im allows a person to expose himself to apparent danger, because it is not considered to be a
danger, just as we are not concerned about exposed liquids, because snakes are not common among
us. On the other hand, in the next shiur we shall discuss in detail the passage in Ketubbot (39a)
regarding women who may use an absorbent during sexual relations, where the Gemara's wording
seems to imply otherwise. The Gemara there states: "And mercy will be vouchsafed from heaven,
as it is stated, 'The Lord preserves the simple,'" which implies that a danger exists, but that we rely
on the principle of shomer peta’im, nonetheless.

III

53
 It seems that the question whether the principle of shomer peta'im permits a person to
expose himself to danger, or merely defines such a situation as one that does not involve danger,
depends on the source of the prohibition to expose oneself to danger. If the prohibition is by
Rabbinic decree, it may be suggested that in a situation of shomer peta'im, Chazal permit a person
to expose himself to danger. But if the prohibition is from the Torah, we must say that shomer
peta'im does not permit a Torah prohibition, but rather it states that such a situation is not defined
as one of danger.

The Rambam writes (Hilkhot Rotze'ach u-Shemirat ha-Nefesh 11:4):

[The requirement to build a guardrail] applies to a roof and to any place that might present a danger
and cause a person to stumble and die. For example, if a person has a well or a cistern in his
courtyard, he must erect embankment ten handbreadths high around it or make a cover for it, so
that a person will not fall in and die.

Similarly, it is a positive mitzva to remove any obstacle that could pose a danger to life, and to be
very careful regarding these matters, as it is stated (Devarim 4:9): "Take heed to yourself, and keep
your soul diligently." If a person leaves a dangerous obstacle and does not remove it, he negates
the observance of a positive commandment, and violates the negative commandment: "Do not
cause blood to be spilled" (Devarim 22:8).

It would seem that, according to the Rambam, one is obligated by Torah law to take
precautions against any danger to life. On the other hand, in the next two halakhot (5-6), he writes:

Our Sages forbade many matters because they involve a threat to life. Whenever a person
transgresses these guidelines, saying: "I will risk my life, what does this matter to others," or "I am
not careful about these things," he should be punished by lashes for rebelliousness. They include
A person should not place his mouth over a conduit through which water flows and drink. Nor
should he drink at night from rivers and lakes, lest he swallow a leech without seeing. Similarly, a
person should not drink water that was left uncovered, lest a snake or other poisonous crawling
animal might have drunk from them, and as a result, the person would die.

It may be asked: What is the difference between the things mentioned in halakha 4, which
are forbidden by Torah law, and the things mentioned in halakhot 5-6. which are forbidden only
by Rabbinic decree? The distinction may be understood in two ways: 1) It is possible that the
prohibition to endanger others is by Torah law, but the prohibition to endanger oneself is only by
Rabbinic decree. 2) To endanger oneself is also forbidden by Torah law, but the Sages spelled out
certain cases that are included in this prohibition due to the higher degree of danger involved, while
those cases mentioned in halakhot 5-6 are forbidden only by Rabbinic decree, since the danger
involved in them is of a lesser degree.

The Be'er ha-Gola (Choshen Mishpat 427:10) cites a dispute as to whether the prohibition
to expose oneself to danger is by Torah law or by Rabbinic decree.[4] The Tevu'ot Shor (13:2)

54
quotes from the Levush in Yoreh De'a (116:1) that the prohibition is Rabbinic in origin. It would
seem that the reference is to what the Levush says there:

The verse states: “Take heed to yourself, and keep your soul diligently” (Devarim 4:9), and
it says: “Take good heed to yourselves” (ibid. v. 15). These formulations imply that a
person must take care of himself, so as not to bring himself to danger. Even though this is
not the plain meaning of these verses, nevertheless Chazal relied on these verses and
forbade all things that bring a person to danger.

The plain meaning of this citation indeed supports the Tevu'ot Shor's understanding that
according to the Levush, that the prohibition to endanger oneself is by Rabbinic decree. However,
the Levush in Choshen Mishpat (426:11) states explicitly that whenever a person transgresses these
guidelines, saying: "I will risk my life, what does this matter to others," or "I am not carefulabout
these things," he is punished by lashes for rebelliousness, for he has transgressed a Torah
prohibition, as it is written: "Take heed to yourself, and keep your soul diligently." A comment of
the Sema also implies that this is a Torah prohibition. Regarding the Shulchan Arukh’s statement
on this topic (427:9): "Our Sages forbade many matters," the Sema writes: "As it is written: 'Take
heed to yourself and keep your soul diligently.'" On the other hand, see the Darkhei Teshuva
(Yoreh De'a 116:57), who cites Acharonim who maintain that the prohibition to expose oneself to
danger is Rabbinic in origin.[5] He also writes that the Levush changed his position on the matter,
and he cites the Shem Aryeh who distinguishes between the danger of a threatening wall or a shaky
bridge, where the prohibition is from the Torah, and the things that the Rabbis forbade which are
only possible dangers, and are like other Rabbinic prohibitions

It stands to reason that the prohibition to expose oneself to danger is only by Rabbinic
decree, because the source that the Rambam cites for the prohibition, "Take heed to yourself, and
keep your soul diligently," does not deal with protecting one's body, but rather it warns against
forgetting what happened at Mount Sinai. See Minchat Chinnukh (mitzva 546, s.v. od katav ha-
Rambam), who raises this objection. Furthermore, the Rambam here treats this verse as a positive
commandment, whereas the Gemara treats this verse in various places as a negative commandment
regarding other laws. See Menachot (99b), where it is the source of a prohibition regarding one
who has forgotten some of his learning, and Shevu'ot (36a) where it teaches a prohibition regarding
one who pronounces a curse on himself. Indeed the Rambam himself (Hilkhot Sanhedrin 26:3)
rules that one who curses himself receives lashes, based on this same verse.

Thus, it seems that this verse is a negative commandment and not a positive one (though it
should be noted that it may be that the prohibition to curse oneself is really a function of the
prohibition to curse another person, and the derivation from this verse is only an asmakhta, a source
of secondary support). It is possible that the Rambam does not mean that one who endangersanother
person transgresses the positive commandment of "take heed to yourself," for that verse ismerely
an asmakhta; rather, the person transgresses the positive commandment to build a railing.Indeed,
the Rambam in his Sefer ha-Mitzvot does not count "take heed to yourself" as a separate
commandment.

55
 Yet, we find support in the Gemara for using this verse in connection with a threat to life.
The Gemara in Berakhot (32b) states:

Our Rabbis taught: It once happened that a certain pious man was praying by the roadside, when
an officer came by and greeted him, and he did not respond to the greeting. So he [the officer]
waited for him until he had finished his prayer. When he had finished his prayer he [the officer]
said to him: Fool! Is it not written in your Torah: "Only take heed to yourself and keep your soul
diligently," and it is also written: "Take you therefore good heed of yourselves?”[6]

One could claim that this was the mistaken understanding of the gentile. However, this
cannot be dismissed entirely, for we find that one of the Rishonim included the commandment of
"take good heed to yourselves" as the source for piku'ach nefesh (Tashbetz Zohar ha-Raki'a 118).15

[1]
This question is particularly relevant to those situations in which people disregard precautions, even though the dangers are well-
known, e.g., smoking cigarettes, which all agree poses a danger to one's health. Here we can use the argument of shomer
peta'im only if we say that it provides an allowance to enter into danger (the first approach), but it cannot be used if we say that it
defines the situation as not dangerous (the second approach).
[2]
See the responsum there where he utilizes this distinction to reconciles a discrepancy between the Yerushalmi and the Bavli. See
also Beiur ha-Gra, Orach Chayim, 531:4, and Damesek Eliezer, no. 8. It seems that Rav Kook is of the same position as the Vilna
Gaon on this matter.
[3]
As for the question whether or not one is obligated to save a person who intentionally entered himself into a dangerous situation,
see Even ha-Ezel, Hilkhot Yesodei ha-Torah 5:9, regarding the Rambam's ruling about a man who is love-sick with a woman and
the doctors say that he has no remedy but to engage in sexual relations with her, that he should be allowed to die rather than engage
in sexual relations with her. The Mirkevet ha-Mishneh writes that this is because he brought the problem upon himself. The Even
ha-Ezel argues that this explanation does not suffice, because now he is in danger. See also R. Y. Kutner, Yeshu'ot Yisrael (Choshen
Mishpat, no. 21, 1).
[4]
He says this in the name of the Bet Yosef (Yoreh De'a 116), who cites a dispute as to whether the prohibition is by Rabbinic
decree or by Torah law, but it should be noted that the discussion there is related to the prohibition of "bal teshaktzu," regarding
eating foods that are loathsome. See Shem Aryeh, Yoreh De'a 27, cited by Darkhei Teshuva 116:57.
[5]
This approach is taken in Responsa Rabbi Azriel Hildesheimer (II, Even ha-Ezer, Choshen Mishpat and Milu'im, no. 184): "That
a person must not endanger himself is only a Rabbinic prohibition, as is explained by the Rambam, Hilkhot Rotze'ach 11:5,
and Shulchan Arukh, end of Choshen Mishpat."
[6]
The Vilna Gaon (Beiur ha-Gra, Shulchan Arukh, Choshen Mishpat 427:6) cites this Gemara as the Rambam's source.

16

The question, discussed in the previous shiur, of whether the notion of shomer peta’im assumes
an absence of danger or a permit to overlook danger, needs to be understood in light of a passage
in tractate Ketubbot (39a):[1]

15
Translated by David Strauss

16
https://etzion.org.il/en/talmud/seder-nezikin/massekhet-avoda-zara/shomer-petaim-hashem-2-lord-preserves-simple

56
 Three [categories of] women may use an absorbent during sexual relations: a minor, and
an expectant and nursing mother. The minor, because otherwise she might becomepregnant
and die. An expectant mother, because otherwise she might cause her fetus to degenerate
into a sandal. A nursing mother, because otherwise she might have to wean her child
[prematurely]… these are the words of Rabbi Meir. But the Sages said: Any of thesewomen
carry on marital intercourse in a normal manner, and mercy will be shown from heaven,
for it is stated: "The Lord preserves the simple."

The wording of the Beraita, "and mercy will be shown from heaven," implies that the danger
exists, but nevertheless an allowance is granted based on the principle of shomer peta'im. Only
that regarding this passage we find a disagreement between Rashi, on the one hand,and
Tosafot and the Ritva, on the other, as to how we are to understand the dispute between RabbiMeir
and the Sages. Rashi writes with respect to the viewpoint of Rabbi Meir: "They are permittedto use
an absorbent during sexual relations, and they are not considered as destroying [their husband's]
seed."[2] Some Rishonim (Ritva and Ra'a, ad loc.) understood that according to Rashi, since Rabbi
Meir maintains that these women are permitted to use an absorbent during sexual relations, this
implies that the Sages maintain that they are forbidden to do so. The Ritva raised anobjection
against this understanding: "The Sages who said: 'Any of these women carry on maritalintercourse
in a normal manner' – that is to say, they are forbidden to use an absorbent during sexual relations.
But why - if there is danger involved, do we say that because 'the Lord preservesthe simple,' this
is forbidden, and she must enter herself into danger?" He therefore explainslike Tosafot, that
according to Rabbi Meir, these women must use an absorbent during sexual relations, whereas
according to the Sages, they may, if they so desire, carry on marital intercoursein a normal manner,
and they are not obligated to use an absorbent.[3]

It seems that the disagreement between Rashi and the Ritva whether, according to the Sages,
these women are forbidden to use an absorbent, or they are permitted to rely on the principle
of shomer peta'im, but they are also permitted to use an absorbent, depends on the question
discussed in the previous shiur, namely, whether shomer peta'im defines the situation as one in
which there is no danger, or that shomer peta'im establishes that one is permitted to expose oneself
to danger. Rashi must understand that shomer peta'im defines the situation as one in which there
is no danger, and therefore he says that these women are forbidden to use an absorbent during
sexual relations. This understanding eliminates the difficulty of the Ritva's question, for shomer
peta’im indicates that there is no danger, not that she is endangering herself and relying on shomer
peta'im.[4] According to the Ritva on the other hand, shomer peta'im constitutes an allowance to
enter into danger, and therefore the Sages say that these women may use an absorbent, since there
is a danger, even though it involves destruction of the husband's semen, but they are not required
to do so if they are willing to expose themselves to the danger.[5]

However, on this understanding of the Ritva, that one is permitted to expose oneself to
danger relying on the principle of shomer peta'im, a difficulty arises. According to the Sages, once
there is a permit to enter into the danger, why is the woman permitted to use an absorbent; surely
there is a prohibition to destroy seed?[6] A similar difficulty arises within Rashi’s explanation of
Rabbi Meir’s view. Why does he write that these women are permitted to use an absorbent,
implying that they are not obligated to do so; if there is a danger which sets aside the prohibition

57
to destroy seed, and therefore they are permitted to use an absorbent, they should be obligated to
do so, owing to the danger! Why then are they permitted to enter into the dangerous situation?

The solution to these questions seems to stem from a fundamental difference between the
definition of danger with regard to the fulfillment of mitzvot, and the definition of danger with
respect to the prohibition falling upon a person to endanger himself. It seems that proofs can be
adduced in support of this distinction, and in this way we can reconcile the difficulties raised
against both Rashi and the Ritva:

1) The Mishna in Yoma (83a) states: "Every danger to human life sets aside Shabbat. If
debris fell on someone, and it is doubtful whether or not he is there, or whether he is
alive or dead, or whether he is a non-Jew or a Jew – one should remove [even on
Shabbat] the heap of debris for his sake." The Tosafot (85a, s.v. u-le’fakei'ach) explain
that whenever there is some factor that will lead to a situation of piku'ach nefesh, one
may desecrate Shabbat, as the verse states (Vayikra 18:5): "That you shall live by
them." And the mitzvot apply only in a situation that does not involve danger. They
write as follows:

Ri says that the reason is that regarding piku'ach nefesh we do not follow the majority, as
it is written: "That you shall live by them," and not that you shall die by them, that it [refrain
from Shabbat violation and the like] cannot lead, in any situation, to the death of a Jew.

Tosafot indicate that the setting aside of mitzvot even on account of doubtful piku'achnefesh,
is not because of a special law regarding the definition of danger and piku'ach nefesh, butrather
that the mitzvot do not apply when there is an element of danger. According to this, it can be argued
that, on the one hand, one is permitted to expose oneself to a certain degree of danger, without
violating the prohibition of "take good heed of yourselves," while on the other hand, all of the
mitzvot in the Torah are set aside by the rule of "that you shall live with them" to save someonefrom
such a situation.

This approach may be inferred from the Peri Megadim. In Hilkhot Shabbat he rules (Orach
Chayyim 329, Mishbetzot Zahav no. 1): "If debris fell on someone, and it is doubtful whether or
not he is there, or whether he is alive…, even if there are several doubts [one should remove the
debris], for regarding the laws of piku'ach nefesh, we do not follow the majority, or the number of
doubts." But elsewhere (Orach Chayyim 173, Mishbetzot Zahav, s.v. she'eila) he rules:

Question, does a double doubt (sefek sefeka) help regarding danger or not? Now, according
to what I wrote in Yoreh De'a (110), that in the case of a sefek sefeka where there is a
presumption (chazaka), there is no prohibition… we see then that we do not rely on
a chazaka with respect to danger. The same is true that a sefek sefeka doesn't help. And
according to him who maintains that a sefek sefeka is like a majority or even better than
that, it may be suggested that a sefek sefeka helps in a case of danger like in a case of
prohibition, but a single doubt is certainly forbidden. The matter requires further study.

58
 We see then that the Peri Megadim is in doubt whether or not a person is permitted to enter
into a dangerous situation that falls into the category of a sefek sefeka, and he leaves the matter
unresolved. We saw above that it was obvious to him that all the mitzvot are set aside even by
doubtful danger (and even a sefek sefeka). Here, in contrast, he writes that in a case of sefek sefeka,
it is possible that a person is permitted to enter into a perilous situation. This proves that even
though a person is permitted to place himself into a situation that involves a minor danger, for the
same level of danger he is permitted to desecrate Shabbat and violate other prohibitions, because
the mitzvot do not apply in a situation where there is any element of danger, based on the rule of
"that you shall live with them."

2) The Gemara in Chullin (9a) states:

As Rabbi Abba asked Rav Huna: If a wolf came and carried away the intestines [of a
slaughtered animal], what is the law? [You ask] 'carried away'! Then they are not here!
Rather, say: 'and perforated the intestines.' 'Perforated the intestines!' Then it is evident that
the wolf did it! Rather say: 'carried away the intestines and brought them back perforated.'
Now, what is the law? Are we concerned that the wolf inserted [its teeth] in a perforation
that was there previously, or not? Rav Huna replied: We are not concerned that it inserted
[its teeth] in a perforation. [Rabbi Abba] thereupon raised an objection [from the following
Beraita]: If one saw a bird nibbling at a fig or a mouse nibbling at a melon, one must be
concerned that it was nibbling in a pre-existing hole! He replied: How can you compare
what is forbidden ritually with what is forbidden on account of possible danger to life! In
the latter case we are certainly more apprehensive. Rava said: What difference is there?
Whenever there arises a doubt concerning a prohibition based on danger to life the stricter
view is preferred, and the same is the case with regard to a doubt in connection with a ritual
prohibition!
Abaye said to him: Is there then no difference between laws concerning danger to life and
laws concerning ritual prohibitions?

The concern here is that the bird might have made a hole in the very spot that a snake had
previously made a hole, so that there is a danger to life (Rashi 9b, s.v. shema). According to Abaye
a distinction is made between laws concerning danger to life and laws concerning ritual
prohibitions, with greater stringency adopted in cases of danger than in cases of ritual prohibition
(and thus in a comparable situation regarding a ritual prohibition we may be lenient). On the face
of it, Rava's objection, why is a possible danger to life different than a ritual prohibition, is
puzzling, for it is obvious that we distinguish between danger, about which we are stringent even
in a case of doubt, and other things, for surely we are stringent even in a case of doubtful danger
to life! Rather, the Gemara is not dealing with setting aside mitzvot because of danger to life, but
rather with the allowance to enter into danger, and it seems that the special stringency in the case
of sefek sefeka with respect to a danger to life was only said with regard to setting aside mitzvot,
because mitzvot do not apply when there is danger. But it is possible that at this same level of
doubt, a person would be permitted to endanger himself.

Using this principle, we can explain Rashi's position regarding the viewpoint of Rabbi Meir.
While there is a certain degree of danger here, this is an intermediate situation: On the one hand,

59
the woman may use an absorbent and not be concerned about destroying the man's seed, because
the mitzvot and prohibitions do not apply in a situation where there is even a small amount of
possible danger to life. On the other hand, since this is only a slight concern, the woman is
permitted to endanger herself. Accordingly, she is permitted to use an absorbent, but if she wishes
she is permitted to take the risk.[7] This is also the way we can understand the position of the Ritva
with respect to the view of the Sages: Indeed there is a danger, and therefore if the woman does
not want to enter into danger, she may use an absorbent owing to the danger of getting pregnant,
and the danger sets aside the prohibition of destroying her husband's seed. But if she so desires,
she may engage in relations in the normal manner, and she is permitted to endanger herself in this
way. Even though danger of this degree would be adequate to set aside prohibitions, nevertheless
a person is permitted to enter into such a danger.

There is also a practical difference between the viewpoints of Rashi and the Ritva with
respect to circumcision on a cloudy day. Regarding the passage in Yevamot (72a) cited above, the
Ritva writes: "According to this reason, someone who doesn't want to circumcise on a cloudy day,
may refrain from doing so, and he does well not to rely on the principle of shomer peta'im. And
similarly it is fitting not to circumcise on Shabbat when it is cloudy." The Ritva here is consistent
with his own position, that in cases of shomer peta'im there is a danger, but one is permitted to
enter into that danger. A person can, however, decide not to endanger himself, and thus put off
circumcision owing to that level of danger. And it is even fitting not to circumcise in such a case
when it falls out on Shabbat. On the other hand, according to Rashi, since there is no danger, it
stands to reason that he would be obligated to perform the circumcision (just as the Sages forbid
the use of an absorbent, because there is no danger).

VI

The Radbaz (Responsa, III, no. 596) proposes that everyone agrees that “the three women”
are permitted to use an absorbent, for even if we say that because of shomer peta'im, there is no
danger, this is because God turns the dangerous situation into one that is danger-free. However,
each individual is permitted to be concerned that "perhaps I am not deserving of heavenly mercy."
Therefore, all agree that if she wishes, she may use an absorbent. The Achiezer (ResponsaAchiezer,
I, no. 23, 2, s.v. ve-hineh) understands that this is also the position of Rashi. The Achiezer
notes that Rashi in Nidda (45a) seems to agree with Tosafot, that according to RabbiMeir these
women are obligated to use an absorbent, for Rashi writes there (s.v. meshamshot be- mokh):
"Their remedy is to use an absorbent during sexual relations, so that they not become pregnant,"
which implies that they must use an absorbent. As for the Sages, the Radbaz writes that even
according to Rashi these women are permitted to use an absorbent. Thereforethe
Achiezer writes that Rashi in Ketubbot should be understood along these lines as well: all agreethat
the three categories of women may use an absorbent during sexual relations. According to Rabbi
Meir, the permit leads to an obligation to do so. According to the Sages, even these three categories
of women are permitted but not obligated to use an absorbent during sexual relations, because of
shomer peta'im. If, however, they do not wish to rely on shomer peta'im (as the Radbazwrites,
because "perhaps I am not deserving of heavenly mercy"), even the Sages permitted themto use an
absorbent.[8]

60
 According to this understanding, both Rashi and the Ritva agree that these women are
permitted not to use an absorbent during sexual relations, choosing not to rely on shomer peta'im.
There is, however, a difference between Rashi and the Ritva about how to understand the principle
of shomer peta'im. The Ritva understands that the danger remains, and that is why the women must
use an absorbent in sexual relations, according to Rabbi Meir, and they are permitted to use an
absorbent, according to the Sages (this is explicit in his words in Yevamot 12b, s.v. shalosh
nashim). According to Rashi, on the other hand, there is no danger here according to the Sages,
but nevertheless one is permitted not to rely on shomer peta'im out of concern that one is not
worthy of God's mercy.

VII

According to the Radbaz, a person who is concerned may choose not to rely on shomer
peta'im in a given situation. What is the law in a situation which is generally considered to be free
of danger, but there are some other people who are concerned about a certain danger? Is one
permitted to desecrate Shabbat because of the concerns of other people? The Rogatchover has a
novel position on this issue. The Mishna in Berakhot (10b) states:

Beit Shammai say: In the evening every man should recline and recite [the Shema], and in
the morning he should stand, as it says (Devarim 6:7): "And when you lie down and when
you rise up." Beit Hillel say that every man may recite it in his own way, as it says (ibid.):
"When you walk by the way." Why then is it said: "And when you lie down and when you
rise up?" [This means that it should be recited] at the time when people lie down and at the
time when people rise up. Rabbi Tarfon said: I was once walking by the way [in the
evening] and I reclined to recite the Shema in the manner prescribed by Beit Shammai, and
I incurred danger from robbers. They said to him: You deserved to come to harm, because
you acted against the opinion of Beit Hillel.

Rabbi Tarfon was travelling and wished to practice stringency in accordance with the
position of Beit Shammai, despite the fact that it involved a certain danger. The question may be
raised: How could he have entered himself into danger? (Even if the law was in accordance with
Beit Shammai, it seems that he should not have endangered himself.) The Tiferet Yisrael (no. 25)
writes that when there is no certain danger, and the injury is not probable, one is permitted to rely
on the fact that the mitzva will protect him.[9]

The Gemara in Berakhot (33a) states that even if a snake is wound around a person's foot
he should not interrupt his prayers (amida). The Kovetz Shiurim (Pesachim, no. 32) asks: But
surely in matters involving danger to life we do not follow the majority, and so the person should
be concerned that there is a minority of snakes that are lethal. He answers as follows:

It is clear from here that the danger of a scorpion is not considered a probable injury. But
in Berakhot 33 it says that they only taught [the ruling that one may not interrupt] about a
snake, but for a scorpion he must interrupt his prayer. And Rashi explains that this is
because most snakes are not lethal. And the objection is raised: But surely in matters
involving danger to life, we do not follow the majority, and so one should be concerned
about the minority [of snakes] that are lethal. It may be suggested: Since the majority are

61
 not lethal, it is not a probable injury, and so one can rely on the fact that “agents sent to
perform a mitzva do not suffer injury” (Pesachim 8a). But in the case of a scorpion, he
must interrupt his prayers, because of probable injury. And there he sees the scorpion, but
here regarding [checking for chametz in] holes, where he does not know at all whether
there is a scorpion, it is called an improbable injury.

According to the Kovetz Shiurim, since most snakes do not cause injury, injury is not
probable, and therefore one can rely on the principle that agents sent to perform a mitzva do not
suffer harm. R. S.Z. Auerbach (brought in Shemirat Shabbat Ke-hilkhata, chap. 25, note 15) raises
a question from the fact that one is permitted to kill a snake on Shabbat, even if it is not pursuing
him, which indicates that snakes do in fact present a danger. If so, why must one rely on the
principle that “agents sent to perform a mitzva do not suffer harm” rather than interrupt one's
prayer when a snake is wound around his foot? He writes along the lines of the Kovetz Shiurim,
that since he sees that the snake is not agitated, he is certain that it will not cause him injury, but
nevertheless when he is not engaged in prayer, he is permitted to kill it, even on Shabbat. But he
raises an objection against the Rambam who maintains that one is liable for a melakha performed
on Shabbat not for its own sake, but nevertheless he permits killing a snake on Shabbat even if
there is no present danger, while on the other hand, he does not permit a person to interrupt his
prayer when a snake is wound around his foot.

The Rogatchover (in a postcard that he sent to Rav Segel, and came into my possession,
published in Responsa Tzofnat Pa'ane'ach, no. 39) asked further on the Rambam who ruled
(Hilkhot Shabbat 2:24) that if one person is being pursued by a snake, even another person is
permitted to kill it, implying that only a snake that is chasing someone presents a danger. On the
other hand, he rules (ibid. 11:4) that one is permitted to kill a dangerous creature, e.g., a snake in
Eretz Yisrael, even if it is not pursuing anybody. The Rogatchover explains, based on an inference
drawn from the Mishna (Shabbat 29b): "If one extinguishes the lamp because he is afraid of
gentiles, robbers, or an evil spirit, or so a sick person can sleep, he is exempt," that the allowance
is "because he is afraid." The Mishna did not write simply "because of gentiles," because here we
are dealing with a case where there is no objective fear, but the particular person is concerned
about danger, and since he is concerned, he is permitted to desecrate Shabbat. Based on this he
explains the Rambam's rulings, that if the dangerous creatures are not pursuing a person, there is
no danger, and one is forbidden to desecrate Shabbat. But if they are pursuing him and he is afraid,
he is permitted to kill them, even if there is no objective danger. This also answers the question
that we raised earlier. If a person is worried about a danger that others don't regard as a danger, it
would seem that according to the Rogatchover, he himself is permitted to desecrate Shabbat, but
others are not permitted to do so.

According to this explanation of the Rogatchover, we can also answer the question raised
by R. S.Z. Auerbach, that according to the Rambam, one is forbidden to kill a snake if it is not
pursuing him, unless he is afraid, in which case he is permitted to kill the snake.[10] It would appear
that the Gemara is addressing a case of a snake wound around a person's foot where the person is
not afraid of the snake, but if he were in fact afraid of the snake, he would be permitted to interrupt
his prayer.17
17
Translated by David Strauss

62
[1]
This is also cited in Yevamot (12b and 100b) and Nidda (45a).
[2]
It follows from Rashi that a woman is also bound by the prohibition to destroy seed. Rabbeinu Tam (Tosafot, s.v. shalosh)
disagrees with Rashi, arguing that there is no prohibition of destroying seed during normal sexual relations. The Ritva maintains
that there is a prohibition, but nevertheless he explains the passage as Tosafot do, that according to Rabbi Meir, these women are
obligated to use an absorbent.
[3]
The Ra'a adds another reason to reject Rashi: The Gemara in Yevamot states that "according to one version, where she to conceive,
she would certainly die. If this is the case, when the Sages say that mercy will be shown from heaven, this means that she will not
conceive, for where she to conceive, she would certainly die. This being the case, what is the reason that she is not permitted to use
an absorbent? Without a doubt, then, [Rabbi Meir rules] they are obligated to use an absorbent during sexual relations, and the
Sages say they are not forbidden, but they are permitted…."
[4]
This is also the understanding of Responsa Torat Chesed (Even Ha-Ezer, 44:3): "The reason of the Sages with respect to the
three women [having relations] without an absorbent is that since we haven't heard of injury, God forbid, we see then that regarding
this matter ‘God preserves the simple.’ And since injury is not probable, we are not concerned."
[5]
The position of the Terumat Ha-Deshen cited in the previous shiur that a Torah scholar should be stringent upon himself and not
rely on shomer peta'im, fits in with the view of the Ritva that there is a danger to which a person is permitted to expose himself. But
according to Rashi that shomer peta'im defines the situation as lacking danger, in which case anyone should be permitted to rely
on shomer peta'im.
[6]
See Responsa Torat Chesed (Even Ha-Ezer, no. 44, 2) who raises the opposite objection against the Ritva: Why would the Sages
rule that these women may engage in sexual relations without an absorbent –given that we permit the prohibition owing to the
danger, they are not permitted to be stringent upon themselves and reject the allowance!
[7]
See Responsa Yabi'a Omer (I, Yoreh De'a, no. 9), who discusses the Peri Megadim, and brings in the name of Mishmeret Shalom
that a distinction can be made between piku'ach nefesh and entering into danger. However, the distinction proposed there is different
from the one that we are suggesting.
[8]
The Achiezer also responds to the Responsa Binyan Tziyon (no. 137) who writes that according to Rashi, the Sages forbid these
women to use an absorbent. The Binyan Tziyon’s rationale is that when there is no present danger, but only concern that a danger
will develop, we follow the majority, even regarding piku'ach nefesh (and we perform the mitzva, despite the concern of piku'ach
nefesh. He applies the same principle to the issue of entering into danger, and for this reason he permits sea travel, because there is
no present danger). The Achiezer writes that it is difficult to determine what weight to give to factors that are not mentioned
explicitly in the primary sources with regard to questions of danger. He therefore writes that the prohibition of the Sages, according
to Rashi, stems from the fact that we are dealing with a remote danger. He also applies the Radbaz's understanding to Rashi,
according to which even the Sages permit these women to use an absorbent.
[9]
And this is indeed the practical ruling adopted by the Pitchei Teshuva (157:3), the Petach Devir (brought in Sedei Chemed 9, p.
3760), and Responsa Dovev Meisharim (I, no. 20).
[10]
This answers the objection raised against the Rambam who permits killing a snake that is not pursuing a person, even though
he rules in accordance with Rabbi Yehuda that one is liable for a melakha performed not for its own sake (see Maggid Mishneh, ad
loc.). According to what we have said, this situation is treated as one of piku'ach nefesh, even though the snake is not pursuing
anybody, because the person is afraid of the snake.

63
 Paradigm for Halachic Risk Taking

What level of risk must one take upon himself in performing mitzvot?

Rabbi David Shabtai, M.D. Raymond Sultan, M.D. write:18

Must a person literally “make himself sick", so that he can perform a mitzvah? How far does
preserving one’s health go in exempting a person from performing mitzvot? This issue arises a
number of times in halachic discussions, in the unfortunate case where a person must choose
whether to fulfill a certain mitzvah and in doing so, become physically uncomfortable or even
worse, seriously ill.

Saving a friend’s life

The issue in question is reflected in the classic case of whether or not one may (or must) save a
friend’s life from certain death when the rescue itself entails uncertainty to the life of the rescuer.
Rescuing a friend from danger is a component of the mitzvah of vahasheivota lo – “and you shall
return to him”28 – and the broader question really hinges upon the risk that one must take in
performing this mitzvah.29 The Beit Yosef (C.M. 426) cites the Hagahot Maimoniot (Rotzeach
1:14) quoting an unreferenced Yerushalmi that a person indeed must enter a situation of safek
sakkana (uncertain danger) to save his fellow from a vaday sakkana (certain danger).30 Although
the Beit Yosef quotes no other sources on this issue, he makes no mention of this requirement in
the Shulchan Aruch. The Sema (426:2) explains that since this halacha does not appear in the Rif,
Rosh, Rambam or the Tur, the Beit Yosef concluded that this stance, while noble, is not to be
considered normative. The Radbaz (Shu”t Radbaz 3:627) takes this position somewhat further
when asked about a rather terrible incident where a nonJew threatened to kill a Jew unless the
victim’s friend allowed his hand to be cut off or his eye gouged. Even assuming that severing a
limb entails no life-threatening circumstance, the Radbaz argues

18
https://www.medethics.org.il/wp-content/uploads/2021/12/11_Shabtai-Sultan_138-173.pdf

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that such an action on the part of the friend is not required but is nonetheless considered a righteous
deed. The Radbaz argues that since the Torah’s precepts are described as “darchei no’am” – ways
of pleasantness – it is impossible to assume that the Torah would require a person to have his eyes
gouged or his arm severed to save somebody else’s life.31 The Radbaz is clear however, that if the
amputations involves a risk to life (as it probably did in the early sixteenth century before the
advent of antibiotics and sterile technique), then one who goes through with such an action is a
chassid shoteh – a deranged pious person.32

Many poskim derive from this responsum that normative halacha does not require a person to risk
his own life to save his friend’s, even when the risk to the rescuer is only possible (safek) while
the risk to the friend is certain (vaday).33 b. “Three cardinal sins” There are well known instances
however, where one is obligated to risk one’s life or even give up one’s life so as not to violate
certain mitzvot, namely the “three cardinal sins” of murder, idolatry and forbidden sexual relations
(Shulchan Aruch Y.D. 157:1).

It must be noted that even the very formulation of this category of yehareg ve-al ya’avor – be killed
rather than violating the prohibition, applies specifically to passively refraining from performing
these prohibitions. Halacha does not demand that a person give up his life in the active performance
of a mitzvah.

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Regarding such instances the Gemara (Sanhedrin 74a) explains that the Torah (VaYikra 18:5)
requires “ve-chai ba-hem ve-lo she-yamut bahem” – [these are the mitzvot that] one should live
through [by] them and not die by them. However, certain poskim maintain that while halacha does
not require one to risk one’s life to fulfill a positive commandment, certain people may nonetheless
elect to do so. Tzaddikim or other Torah leaders may take upon themselves a life-threatening
danger when they feel that performing the mitzvah despite this risk will have some benefit to the
greater community, especially when death is not a certainty.34

This permission is not widely accepted nor extended to the general public and as such has limited
applicability with regard to metzitza b'peh. It seems clear therefore, that a person need not accept
a risk of death in performing mitzvot. c. Dwelling in a Sukkah There are other, more mundane
applications of this question as well.

The gemara already provides a model for exempting a person from performing a mitzvah based
on level of pain or discomfort that he must endure. Sukkah 26a relates that a person who is
mitzta’er (pained), is exempt from dwelling (eating, sleeping) in the Sukkah. 35 The Shulchan
Aruch (640:4) limits this exemption and explains that it does not apply on the first night of the
festival. The Acharonim debate whether the exemption of mitzta’er is a model to be used
throughout halacha even though it is only mentioned here or is limited to the mitzvah of sukkah.
36 The Chelkat Yo’av (dinei

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ones, anaf 7) explains that for sukkah there is a unique exemption for even somebody who is
suffering [or perhaps would suffer] from only minor discomfort. However, for all other mitzvot
there is also an exemption of one who is also mitzta’er, albeit requiring a more substantial
pain/discomfort (tza’ar gadol). Therefore, he exempts a choleh she-ein bo sakkana – a bedridden
sick person whose malady poses no risk to life – from mitzvah performance.

The Chelkat Yo’av agrees with Rema (640:4) that a mitzta’er is only exempt from dwelling in the
sukkah, when refraining from doing so will alleviate his tza’ar. However, if one’s ailing health
will not deteriorate by dwelling in the sukkah and the sukkah does not cause him any additional
tza’ar, he is obligated to dwell in the sukkah. A similar paradigm should apply throughout all areas
of halacha. 37

The Binyan Shlomo (47) following the rationale of Rabbeinu Manoach (Hil. Sukkah 6:2) argues
that a mitzta’er is exempt only from the mitzvah of sukkah (at all times except for the first night)
but is nonetheless obligated in all other mitzvot. In a similar manner to the Chelkat Yo’av above,
the Binyan Shlomo parallels a choleh she-ein bo sakkana to a mitzta’er, but because of his
understanding of the exemption of mitzta’er by sukkah, obligates a choleh she-ein bo sakkana in
all other mitzvot.38

The Maharam Schik (Shu”t Maharam Schik O.C. 260) goes slightly further and explains that even
when performing a mitzvah will certainly entail some physical harm, albeit not posing a risk to

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life, one is obligated to perform that mitzvah. d. Drinking Four Cups of Wine at the Seder This
issue also arises with the requirement to drink four cups on wine at the Seder. The Shulchan Aruch
(O.C. 472:10) writes that even a person who greatly dislikes wine or does not normally drink wine
because it harms him (maziko), must nonetheless push himself

to fulfill the mitzvah of drinking all four cups. The Mishna Berurah (472:35) limits this harm to
causing physical discomfort and/or developing a subsequent headache; the obligation does not go
so far as to require pushing oneself so far becoming bedridden (yipol le-mishkav). Subsequent
poskim debate whether this rule is applied to all mitzvot or is limited to drinking wine at the Seder.

The Sha’ar ha-Tziyyun (472:52) explaining the reason for the Mishna Berurah’s limitation, says
that such consequences would label the drinking as not in the manner of [exhibiting] freedom
(derech cheirut). It seems logical to conclude therefore, that in all other areas of halacha where this
unique characteristic does not apply, one must indeed perform any mitzvah even knowing that
consequently he will become so sick that he will become bedridden.

R. Tzvi Pesach Frank39 and R. Moshe Sternbuch40 reject this conclusion and claim that the
mitzvah of drinking the four cups of wine differs in other aspects as well and therefore has a unique
limiting factor. The Shulchan Aruch (O.C. 472:10) records that one is required to go to great
lengths not ordinarily required by other mitzvot to secure wine to drink at the Seder. One would
have therefore thought that the stringent nature of this mitzvah would permeate all aspects of its
performance and would require exerting oneself further than required by any other mitzvah, even
to the point of becoming bedridden.

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The requirement of derech cheirut is a reason for leniency in this stringent mitzvah that reduces
the level of required exertion by drinking the four cups to the level required by all other mitzvot.
The mitzvah of the four cups, in their opinion, is similar in character to all other mitzvot – none of
which require pushing oneself so far as to become bedridden. R. Chayyim Pinchas Scheinberg
argues against Rabbis Sternbuch and Frank’s logic.41 He cites numerous examples where the level
of exertion required for fulfilling the mitzvah of the four cups is compared and otherwise viewed
in parallel to several other mitzvot.

If, as Rabbis Sternbuch and Frank claim, the mitzvah of the four cups is unique in its stringency,
no parallel could be made between it and other mitzvot. R. Scheiberg therefore concludes that
the limiting factor of derech cheirut functions to lessen the level of required exertion only by the
mitzvah of the four cups.42 In all other mitzvot however, where this factor is irrelevant, one must
exert himself so much, that he would even become bedridden as a result of performing the mitzvah
at hand.

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 Are We There Yet?

Rabbi Joshua Heller writes:19

How do we know the pandemic is over?

What does Jewish ethics tell us about when it is considered “safe” to have in person activities?

If certain practices or rulings were adopted on an emergency basis, when does that permission
expire?

What if local and national governments, medical advisors, and clergy or lay leaders all disagree?

We won’t be offering a conclusive answer to these questions, but we will provide a toolbox of
sources and concepts that will help bring Jewish values into these thorny conversations.

19
https://www.rabbinicalassembly.org/sites/default/files/2021-05/SpeakerMaterialsFinalTLS.pdf

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 Jewish Sources on Preserving Oneself and Others

Elliot N. Dorff and Susan Grossman write:20

20
Masks During the Pandemic final.docx - The Rabbinical ... https://www.rabbinicalassembly.org › default › files

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References: https://www.rabbinicalassembly.org › default › files

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