Finishing the Second Part of the Petihah Kollelet

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by R. Gidon Rothstein

We have a few categories left in Peri Megadim’s list of unusual Jews, each treated briefly. Notably, he does not discuss the “ordinary” Jew, nor the differences between Kohanim, Levi’im, and Yisre’elim. It reminds me of the story of two younger fish who swim by an older one, the latter says “how’s the water today, boys?” After they swim on, one turns to the other and says, “what’s water”?

We can miss what is all around us; in this second part of his Petihah KolleletPeri Megadim has focused on whose halachic status differs from others, and how.

The Intersex Androginus

The androginus flips the situation of the tumtum we saw last time. Where the tumtum lacks any clear gender, the androginus has physical indications of both (intersex, in today’s terminology). Peri Megadim pauses to declare his insufficiency to address the topic (I think because he feels the Talmudic sources are not clear), then suggests three ways to look at an androginus: the person is either male or female and we do not know which; is partially male, partially female (counts as either or both in various contexts); or is a biryah bifnei atzmah, stands as its own category.

[Were this third way of looking at it the halachically true one, we would be saying Judaism recognizes three gender categories, male, female, and androginus. I think those who hold this view still do not speak this way because of the relative rarity of the androginus.]

Ramifications of the Unclear Androginus Status

Tosafot Hagigah 4a assumes the male and female side of an androginus each have halachic significance. Beit Yosef Orah Hayyim 589 explains an androginus’ halachic standing to blow shofar for him/herself. A person of mixed identity, such as a half-servant normally cannot perform such rituals, because the side of lower level of obligation cannot act on behalf of the side with the higher level. With the androginus, the female side is not Biblically obligated to blow.

However, Maggid Mishneh suggests the androginus is not a separate type, but since the mixed-type status comes naturally (from Heaven), the two sides of the person do not conflict with each other in terms of fulfilling a mitzvah.

(Later, he quotes Perishah, who thought the Torah only rejected the ability of the half-servant because there was an easy fix, freeing the half-servant part. He seems to assume Gd would never let it happen that a person be unable to fulfill mitzvot him/herself; I am not sure that assumption holds up elsewhere in halachah, but we can leave it for another time).

Yoreh De’ah 315;9 rules a first-born androginus animal is a bechor, an halachic first-born, despite usually treating androginus as a separate category. Shach says it is a stringency, to account for the view of the androginus as mixed gender.

An androginus’ marital status is also complicated. Even Ha-Ezer 44;5 says we have a doubt if the androginus marries either a man or a woman. Rema cites some who say the androginus definitely counts as at least a man; if the andorginus gives kiddushin to a woman, this view would see her as definitely married to him, not only possibly. Still, Shulhan Aruch says we would not recite a blessing when circumcising an androginus, because we are not certain it counts as male.

Some situations seem to imply an androginus’ gender can shift, because Magen Avraham 589;2 tells us Rif thought an androginus cannot act to fulfill the obligation of other androginus’s, since this one might be a woman at the time the other is a man.

For any halachic issues where men and women are equally obligated, the androginus would be as well. [I wanted to write “clearly,” except the likelihood the androginus counts as a separate gender-type could in theory have meant s/he had wholly different halachic obligations. For example, I previously suggested a heresh might be exempt from mitzvot because of the difference of his/her experience of life rather than incompetence. I could have imagined a similar idea about an androginus, a reason for Peri Megadim to disabuse us of this notion.]

Onen

The next category is an onen, who is situationally different from other Jews. The onen has lost a close relative-parent, child, sibling, or spouse, not yet buried, and the onen is freed of all mitzvah obligations to involve him/herself with the burial and as a sign of respect for the deceased. Hacham Tzvi pointed out the exemption extends only to obligations, to have the person refrain from acting; it is not a pass to violate the Torah.

Peri Megadim adds prohibitions violated by inaction to the exemption, such as getting rid of hametz before or on Pesah. For all there is a prohibition of bal yera’eh, against owning such leaven, the onen need not take action to get rid of it.

Hametz owned by a Jew on Pesah usually becomes prohibited forever, both for eating and gaining benefit. Were a Jew to have had hametz come into his/her possession while an onen on the eighth day of Pesah (Hacham Tzvi adds the seventh, because we can theoretically have non-Jews bury the person for us), the Jew need not get rid of it, and can use it after Pesah, or collect payment from a non-Jew who ate it.

The onen still counts as theoretically obligated, such that if he performs a mitzvah on behalf of others while an onen, the act will count as a mitzvah act and they will have fulfilled their obligation. A person who plans to bury his relative on Rosh HaShanah, either with non-Jews doing it on the first day or he himself on the second (as is allowed by halachah) is an onen, yet if he were to blow shofar for the community—especially if no one else knows how—the blowing will count. It is the act of an obligated Jew, even if this onen could have exempted himself because of his involvement with another mitzvah, the burial.

The onen stays an onen however long s/he is still anticipating burying this relative, and stops being an onen as soon as s/he is no longer involved [in our time, such as relatives not going to Israel with the body, they start mourning as soon as they turn away from the deceased; in our Zoom times, I think some poskim allow the person to continue to think of him/herself as an onen even if participating only by Zoom.]

Pesulei Kahal—Maritally Restricted Jews

His tenth category are those Jews disallowed from marrying ordinary Jews. Such Jews must observe everything in the Torah, like any other Jew, with the exception of certain marital rules. For example, a mamzer, a person born of an unacceptable relationship (at a capital punishment or karet level, like an adulterous affair), may not marry a regular Jew but may marry a shifhah, a partially converted servant. [In our times, I think this provides one solution if a Jew finds out he is a mamzer. I think one recommendation is to find a woman planning to convert and ask her to instead convert to be a shifhah. That way, the children will be servants, the father can free them, and they will be Jews free of any mamzer status.]

Mamzerim may also marry converts to whom the Torah attached special rules. We assume we do not know who Ammon, Moav, or Mitzrayim are; were we to identify them, they could convert to Judaism, but neither they nor their descendants could marry ordinary Jews [the Gemara assumes Rut showed the restriction did not apply to women]. A mamzeret could marry such a convert, because mamzerim are not part of the kahal the Torah said could not absorb the Ammonite or Moabite man.

The petzu’a daka, a person with genitalia damaged by human hand, is also not allowed to marry ordinary Jewish women (but may marry converts), as may a kohen with such an injury.

Areas Other Than Marriage

Converts can only serve on a court to judge other converts, where a mamzer and/or a petzu’a daka can serve on courts for monetary issues. Mordechai said a mamzer cannot serve as hazzanPeri Megadim thinks only where the mamzer has already himself fulfilled the mitzvah, because he is not included in arevut, the bond among Jews telling us if one Jew has not fulfilled a mitzvah, the issue matters to all Jews.

The mamzer also cannot write a sefer Torah, some say, Shach says Mordechai offers two reasons, the aforementioned arevut one as well as the question of whether a mamzer can write wholeheartedly, since he has complicated feelings towards the Gd so frequently mentioned. We are not sure he will write Gd’s Name with the necessary intent.

[Mordechai clearly sees the mamzer as having broader ramifications than whom he can marry. The Gemara refers to the mamzer mostly as a matter of whom he may or may not marry. Treating him as unable to lead a community or write a sefer Torah makes it a more universal problem.]

The Unsighted

The Gemara knew of opinions exempting someone who cannot see from all mitzvot. (R. Eisenberger points us to Baba Kamma 87a, the view of R. Yehudah.) Rabbenu Yeruham, of early fourteenth century Provence, accepted his view, where everybody else seems to have rejected it. [It’s interesting to see Peri Megadim discuss it, because I am not sure we always or even often make sure to deal with rulings of Rabbenu Yeruham’s outside the mainstream.]

For the berachah of borei me’orei ha-esh in havdallah, the blessing of the creation of the light of fire, the unsighted person would seem not included, because s/he cannot see and appreciate the light. Shu”t Ha-Rashba thought this exempted the unsighted person from the havdallah recited with a cup of wine, where Shulhan Aruch ruled it was only this particular berachah. Even for that second view, the unsighted person would not be able to recite the havdallah for others, because he has no obligation in the blessing over the light, could not say it on behalf of others.

A one-eyed person is a completely ordinary Jew, with the possible exception of halitzah, where the Torah refers to seeing the woman spit in his shoe. There, Shulhan Aruch Even Ha-Ezer 169; 48 thinks the one-eyed brother should ideally not be the one to perform halitzah, and in the Seder Halitzah, the step by step guide to halitzah Shulhan Aruch provides, Rema takes the position a one-eyed person should not serve on the court for the halitzah.

That concludes our summary of the second part of Peri Megadim’s Petihah Kollelet. Next time, I will review what we found, to see any overall themes on who does and does not count for halachic concerns. After that, with the advent of Elul, we will turn to Mabit’s Beit Elokim, to see his interesting nuances in the topic of repentance.

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