QUESTION: In the Beraisa, Rebbi Yehudah states that a Nochris who converted, a female captive who was redeemed, and a Shifchah (maidservant) who was set free when they were over the age of three years and one day are required to wait three months before they may marry. The Chachamim enacted this period of waiting in order to distinguish between a child conceived from a Nochri and a child conceived from a Jew. If one of these women fails to wait three months, the fatherhood of her baby born soon afterwards is in doubt. Rebbi Yosi disagrees and rules that they may marry immediately and do not have to wait three months.

The Gemara explains that Rebbi Yosi does not share the concern of Rebbi Yehudah because he maintains that a woman who has illicit relations uses a Moch (cloth) to prevent pregnancy, and thus she may marry a Jew immediately after her conversion, redemption, or emancipation. RASHI (DH Meshameshes) explains that she uses a Moch after relations in order to prevent pregnancy.

The CHASAM SOFER (Chidushim, Satmar edition) points out that Rashi's words here contradict his explanation elsewhere. The Gemara later (39a) and in Yevamos (12b) states that three women must use a Moch: a minor, a pregnant woman, and a nursing mother. Rashi there (DH Meshamshos b'Moch) explains that these three women may insert a Moch before they have relations so that they not become pregnant. TOSFOS there (DH Shalosh) cites RABEINU TAM who asserts that the use of a Moch before relations is certainly forbidden because it constitutes an act of Hashchasas Zera. Rabeinu Tam instead explains that these women may insert the Moch only after relations. In this manner, the act of relations is performed in the normal way, and the woman transgresses no prohibition when she uses the Moch afterwards to absorb the Zera. Rabeinu Tam explains that since a woman is not commanded to fulfill the Mitzvah of Piryah v'Rivyah, she also is not prohibited from destroying Zera. (See Rashi to 39a, DH Meshamshos, and Tosfos DH Shalosh in the name of Rabeinu Tam. Rashi and Tosfos there are consistent with their respective opinions in Yevamos.)

Why does Rashi here explain that the Moch is used after relations, unlike his commentary later (39a) and in Yevamos?

ANSWER: The CHASAM SOFER answers that based on logical grounds Rashi here explains that the Moch is used after relations. If the Gemara refers to a Moch inserted before relations, Rebbi Yehudah would not require that she wait three months before she marries, for the chances of becoming pregnant with such a Moch are very low.

It is illogical to suggest that Rebbi Yehudah maintains that perhaps she forgot to insert a Moch before relations, because it is clear from the Gemara that a promiscuous woman does everything she can to avoid pregnancy. This is apparent from the words of Rava in the end of the Sugya. Rava states that according to Rebbi Yosi, the adulterous woman turns herself over after relations in order to prevent pregnancy, while Rebbi Yehudah is concerned that she does not turn herself over thoroughly enough to prevent pregnancy. The fact that the Gemara does not say that Rebbi Yehudah is concerned that she does not turn herself over at all shows that according to Rebbi Yehudah a promiscuous woman makes every effort to avoid pregnancy.

Since the Gemara here discusses a case of an illicit relationship, it must be that the woman was unable to insert a Moch before relations because the man insisted that she not use it. Rebbi Yehudah maintains that when the Moch is used after relations she still must wait three months before marrying, due to the concern that she does not clean herself thoroughly and may still become pregnant.

Accordingly, the three types of women mentioned by the Gemara later (39a) who are required to use a Moch (because pregnancy poses a danger to their health) are required to insert a Moch before relations. It does not suffice to use a Moch after relations, because such a use of a Moch is not a reliable form of protection against pregnancy and they will still be in danger. The Chasam Sofer sides with Rashi's opinion there (that the Moch is inserted before relations), because that form of usage is the only form that spares the woman from danger.

1. Based on this approach, the Chasam Sofer explains the words of TOSFOS in Megilah (13b, DH v'Toveles). Tosfos asks that when Achashverosh took Esther as his wife, she did not wait three months from the time she lived with Mordechai until the time she lived with Achashverosh. Why did Esther not observe this mandatory period of waiting? Tosfos explains that Esther used a Moch to avoid pregnancy. The TUREI EVEN asks if Esther used a Moch, how did she conceive and give birth to Daryavesh (Darius)?

The Chasam Sofer answers that Esther did not use a Moch when she lived with Achashverosh because he objected to its use. Rather, Tosfos means that she used a Moch after relations. However, since such a method of contraception is not entirely reliable, Esther became pregnant with Daryavesh.

The Chasam Sofer explains that the conception and birth of Daryavesh was Divinely guided. Hash-m decreed that Esther's attempt to prevent pregnancy should fail so that Daryavesh would be born, since he would later become the builder of the second Beis ha'Mikdash. (See also TESHUVOS CHASAM SOFER YD 172, where the Chasam Sofer explains further that although the Halachah does not allow a woman to rely on the use of a Moch after relations to permit her to marry immediately and not wait three months, nevertheless it is possible that Esther was more expert at its use and relied on her expertise. Hash-m, however, caused her to fail to clean herself thoroughly one time so that Daryavesh would be conceived.) (D. Bloom)

QUESTION: The Beraisa discusses whether one may render payment in place of receiving punishment. The Torah states that the owner of a bull which killed a person must pay a fine of "Kofer" -- "redemption" money, with which he "redeems" himself from the death penalty (Shemos 21:30). The Torah implies that this payment takes the place of Misah bi'Yedei Shamayim (death at the hands of Heaven), for which the owner of the bull is liable for not sufficiently guarding his animal. One might have thought that this law also applies when a person is liable for Misah bi'Yedei Adam (death at the hands of Beis Din) -- perhaps he may pay a fine of Kofer instead of being punished with death. The Torah therefore teaches, "Any condemned person who is doomed to death shall not be redeemed, but shall surely be put to death" (Vayikra 27:29).

Rebbi Yishmael states that the extra word "Kol" in the verse ("Kol Cherem Asher Yachoram Min ha'Adam...") teaches that one cannot exempt himself from death through payment even from a "light" form of death penalty ("Misos Kalos"). (A "light" form of death penalty is one administered for a transgression for which one is obligated to bring a Korban Chatas (or flee to an Ir Miklat; Rashi DH Misos) when transgressed inadvertently.

The Beraisa implies that for any transgression punishable with Misah b'Yedei Shamayim one may pay Kofer and exonerate himself from further punishment. It is only Misah bi'Yedei Adam for which one may not exonerate himself. Accordingly, a Kohen who ate Terumah while he was Tamei (for which one is liable for Misah bi'Yedei Shamayim; Vayikra 22:9) should be able to attain atonement and exonerate himself from death by paying Kofer. REBBI AKIVA EIGER asks that this leniency is mentioned nowhere in the Gemara. May one exonerate himself from Misah bi'Yedei Shamayim by paying Kofer as the Beraisa implies, or may he not exonerate himself from Misah bi'Yedei Shamayim?

ANSWER: The KOVETZ SHI'URIM (#133) answers this question based on the words of TOSFOS (DH Misos). Tosfos in the name of the RASHBA asks, why is the verse "Kol Cherem" (Vayikra 27:29) necessary to teach that Kofer does not exonerate a person from "Misos Kalos"? One opinion in Bava Kama (40a) maintains that the amount of Kofer one must pay (when his bull killed a person) is determined by the victim's assessed monetary value (Demei Nizak). According to that opinion, Kofer is applicable only to a sinner guilty of causing the death of another person. In a case in which a sinner is put to death by Beis Din for a sin other than murder or bodily harm (for example, for desecration of Shabbos), in which the value of Kofer cannot be determined by the victim's monetary value (since there is no victim), how can Kofer apply?

The Rashba answers that the Gemara here follows the view of Rebbi Yishmael. In Bava Kama (40a), Rebbi Yishmael rules that Kofer is determined by the value of the owner of the bull (Demei Mazik). Therefore, if not for the verse of "Kol Cherem," one would have thought that a person who is liable for Misah bi'Yedei Adam for a sin other than murder (for example, he desecrated Shabbos) may pay a Kofer in the amount of his own value, similar to the amount he would pay if his bull would kill someone.

Since the Halachah follows the opinion that the value of Kofer is determined according to the value of the person killed, the verse of "Kol Cherem" indeed is not necessary to teach that one who desecrated Shabbos may not pay Kofer for atonement. Similarly, according to this opinion it is not possible to attain atonement for transgressions for which one is liable for Misah b'Yedei Shamayim (such as one who eats Terumah while he is Tamei), because in such cases there is no "Nizak" (victim) by whom to assess the value of Kofer.

(This answer does not resolve Rebbi Yishmael's opinion. RAV Y. S. ELYASHIV shlit'a (quoted in He'oros b'Maseches Kesuvos) asks this question and gives this answer, but leaves the opinion of Rebbi Yishmael unresolved.) (D. Bloom)