Issurei Biah - Chapter Twenty One

Compare to Halachah 6.

As evident from Halachah 3, although such acts are forbidden whenever sexual relations are prohibited, lashes are given only when the woman is one of the arayot (Maggid Mishneh).

The verse teaches that not only is undesirable sexual conduct itself forbidden, but also preliminary acts that lead to such conduct.
This teaching is significant from a theoretical perspective. Our Sages (Avot 1: 1) teach: “Make a fence around the Torah,” i.e., enact prohibitions to safeguard Scriptural prohibitions and prevent them from being violated. Our Rabbis, however, question if there is a concept of “making a fence” in Scriptural Law itself, i.e., are there Scriptural prohibitions that exist solely to prevent one from violating more severe prohibitions?
It would appear that this prohibition would fall into that category (see Halachah 4). Why are these acts of closeness forbidden? Because most likely they will lead to intimacy. One may, however, explain that these acts of closeness are, in and of themselves, “abominable practices,” and hence, forbidden.
The above discussion is relevant according to the Rambam’s approach. The Ramban [Hasagot to Sefer HaMitzvot (negative mitzvah 353) differs and does not consider the prohibition mentioned here of Scriptural origin. Instead, he views it as a Rabbinic safeguard, “a fence” instituted by the Rabbis to protect Scriptural Law.

The Maggid Mishneh considers the following as Rabbinic safeguards. The Beit Shmuel 21 :2 mentions opinions which consider some as having a Scriptural source.

As Avot 1 :5 teaches: “Mirth and frivolity habituate a person to immorality.”

In his Commentary to the Mishnah (Sanhedrin 7:4), the Rambam quotes the Pesikta Rabati, ch. 25, which interprets the commandment lo tinaf, as “Do not take forbidden pleasure with your nose.”

For if a person does not look at a woman before he marries her, he may have an unpleasant surprise afterwards (Kiddushin 41a). The Ra’avad suggests that a pious person should rely on the opinion of others rather than looking at his intended himself, but the Shulchan Aruch (Even HaEzer 21:3) quotes the Rambam’s view.

Indeed, a woman may adorn herself during this time so that she will not appear unattractive to her husband (Chapter 11, Halachah 19).

This applies only to portions of her body: which are usually revealed. He should not look at those portions that are usually covered (Ra’avad).

This applies even if the woman does not actually touch him [Shulchan Aruch (Even HaEzer 21 :5)].

Implied is that outside one’s presence, this is permitted.

For they all suggest a certain measure of intimacy. Compare to Chapter 11, Halachah 19.
When commenting on the quotation of these laws by the Shulchan Aruch, the Rama mentions certain leniencies, e.g., if the tasks are performed in a public place, if there is no indication of closeness involved.

Our translation is based on the gloss of the Maggid Mishneh who explains that it is permitted to inquire concerning a woman’s welfare.

I.e., he has no fear that this closeness will lead to intimacy.

Nevertheless, if one has no pleasure or desire, the act is not punished by lashes [the Rambam’s Commentary to the Mishnah (Sanhedrin 7:3)].

The Chelkat Mechokek 21:10 adds that one may show physical closeness to one’s granddaughter and to one’s infant sister.

I.e., even unclothed.

In Hilchot Keriat Shema 3:19, the Rambam mentions that the children must also have reached the age of majority, thirteen for boys and twelve for girls. In our translation, however, we have focused on the physical characteristics, because as emphasized by the Chelkat Mechokek 21: 12 this is what is of primary importance.

The Rambam borrows the wording ofEzekiel 16:7 which l,terally means “her breasts are developed and her hair has grown.”

The Maggid Mishneh states that this applies even if she is merely consecrated.

Even when children reach the stage when they and their parents are required to sleep together while clothed, their parents are still allowed to embrace them and kiss them (Beit Shmuel 7:15).

Sifra, commenting on the above verse.

By Scriptural Law. The verse is not merely cited as support for a Rabbinic injunction.

As stated in Sefer HaMitzvot (negative commandment 353), this is a general prohibition, including all types of forbidden sexual behavior. As stated in Hilchot Sanhedrin 18:2-3, lashes are not given for the violation of prohibitions that are of a general nature.

As would apply were this to be considered as adultery.

This represents a change of opinion from his statements in his Commentary to the Mishnah (Sanhedrin 7:3) where he writes that even according to Rabbinic Law, no punishment should be given.

The Beit Shmuel 25:1 quotes many authorities who forbid a man from kissing his wife’s genitalia.

See Halachah 18.

In Hilchot Deot, ch. 3, the Rambam elaborates on the concept that all of a person’s actions, even his sexual conduct, must be for the sake of heaven. In Chapter 5, Halachot 4-5, the Rambam elaborates on refined habits of sexual conduct.

In his Commentary to the Mishnah (Sanhedrin 7:3), the Rambam writes:
The intent of sexual relations is the preservation of the species and not only
pleasure. The aspect of pleasure was introduced only to motivate the created beings
toward that ultimate goal....
The proof of this is that desire and pleasure cease after ejaculation; this was the
entire goal for which our instincts were aroused. If the goal were pleasure,
satisfaction would continue as long as man desired.

The point of the laws mentioned in this halachah is that one should not look at one’s wife while engaging in relations.

When it is a mitzvah to engage in relations.

If one can cover the light or create a partition in front of it in a manner permitted on the Sabbath, there is no prohibition [Chelkat Mechokek 25:4; Rama (Orach Chayim 240:11)].

I.e., one feels very aroused (Magen Avraham 240:25).

In Hilchot Deot 5:4, the Rambam gives a rationale that at this time a person’s food will have been digested and yet, he will not be overly hungry. The commentaries to Nedarim 20b explain that in this manner, the man and his wife will have forgotten all their daytime concerns and will be able to focus their attention on each other and the holiness of the experience.

See Hilchot Ishut, ch. 14, which explains the frequency of the conjugal duties a husband has to his wife. This factor is dependent on the nature of the husband’s work and the manner in which it taxes him.

See Hilchot Kriat Shema 4:8 which explains that originally, Ezra enacted such a decree for the reason mentioned by the Rambam. Afterwards, our Sages checked and saw that this decree had never fully spread throughout the Jewish community. Hence they nullified it

Nedarim 20b.

See Hilchot Deot 5:4-5 which states:
[Relations should be conducted] with their mutual consent and joy. He should
converse and dally with her somewhat, so that she will be relaxed. He should have
intercourse [with her] modestly and not boldly .... Whoever conducts himself in this
manner [may be assured that] not only does he sanctify his soul, purify himself, and
refine his character, but furthermore, if he has children, they will be handsome and
modest, worthy of wisdom and piety.

I.e., exhibits any of the undesirable behaviors described above. The rationale is, as explained in Iggeret HaKodesh and other sources, a person’s intent at the time of sexual relations has a major effect in determining the character of his children.

Nedarim, foe. cit ..

As stated in Hilchot Gerushin 11: 16, whenever a woman is divorced or widowed, she should wait 90 days before remarrying, so that the identity of her child’s father will be clearly established.

For surrendering oneself to one’s desires without control within the context of marriage may lead one to surrender oneself to one’s desires outside the context of marriage.

According to Scriptural Law, a person may consecrate his wife by engaging in relations with her. Nevertheless, our Sages forbade such a practice because of its immodest nature (Hilchot Ishut 3:21).

As Hilchot Ishut 3:22 continues, the latter two practices were forbidden as a safeguard to lewd conduct. Our Sages feared that if women would be consecrated in this manner, the people would look at marriage and intimacy in a much baser manner.

Kiddushin 12b.

For an extended period of time. Needless, to say, there is no difficulty with making a short visit.

Lest this arouse undesirable thoughts [Rashi, Pesachim 51a; see Rama (Even HaEzerv 23:6)].

I.e., a widow or a divorcee. A woman who never married may wear her hair uncovered (Chelkat Mechokek 21 :2).

When stating this prohibition, Shulchan Aruch (Even HaEzer 23:1) adds: “This transgression is more severe than any of the sins in the Torah.”

See the commentaries to Genesis, ch. 38, which relate that this was the sin of Judah’s two sons: Er and Onan. They married Tamar, but did not desire that she become pregnant. Hence they did not release their sperm within her. Their sin angered God and He caused them to die.

For in essence, whenever the couple engage in intercourse, he will be releasing sperm without purpose, because she is not old enough to become pregnant. Niddah 13b states that those who marry minors hold back Mashiach’s coming.
It must be emphasized that if a man does marry a minor, he is permitted to engage in relations with her [Rama (Even HaEzer 23:5)]. Similarly, relations are permitted in other instances where they will not lead to pregnancy: e.g., when the woman is already pregnant, directly after birth, or she is past menopause. Since a man has conjugal duties to his wife, he is not allowed to ignore them even though she will not become pregnant.

See Chapter 22, Halachah 21. See also Avot D’Rabbi Nattan 20:1 which implies that this is not merely a matter of will power and mind control. Instead, directing one’s attention to the Torah awakens spiritual influences which prevent a person’s attention from focusing on sexual thoughts.

This analogy for the Torah is taken from Proverbs 5: 19.

Needless to say, it is forbidden for one to sleep on his belly.

Our translation follows the authoritative manuscripts and early prmtmgs of the Mishneh Torah. This also follows the text of Avodah Zarah 20b, the Rambam’s apparent source. The standard printed text of the Mishneh Torah employs a slightly different version.

When quoting this law, the Shulchan Aruch (Even HaEzer 21:1) clarifies that it applies even when the woman is not wearing the garments. The clothes themselves may prompt the man’s imagination.

For watching her body might arouse him.

Even if his wife is not together with him (Beit Shmuel 23:4).

See Shulchan Aruch (Orach Chayim 3: 14) which grants a man permission to hold himself below the corona of his organ, for this does not stimulate him sexually.

See Shabbos 118b, 53b.

I.e., directly after a youth becomes thirteen (Chelkat Mechokek 1:3).

I.e., having foresight with regard to one’s children’s sexual behavior will prevent sin. See the conclusion of Hilchot Sotah where the Rambam cites the same verse in a different - although somewhat related - context.

According to Scriptural Law, a man cannot consecrate a woman until he reaches the age of thirteen and demonstrates signs of physical maturity. Hence, if a couple are married beforehand, all relations are comparable to promiscuity. See Chelkat Mechokek, loc. cit. and Beit Shmuel 1 :4 who discuss certain views that maintain that it is permitted to marry beforehand.

Lest he be prompted to sexual thoughts.

This certainly applies before the man has fulfilled the obligation to be fruitful and multiply (i.e., he fathered a boy and a girl). Even after he has fulfilled that mitzvah, he should marry a woman capable of bearing children [Hilchot Ishut 15:7, 16; Shulchan Aruch (Even HaEzer 1 :8)]. In the latter situation, however, there is room for certain leniencies.

For she is not bound by the commandment of procreation.

We assume that the difference in age will lead to a lack of sexual harmony and cause the man and/or woman to seek fulfillment outside of marriage.

If, however, the woman was merely consecrated, the couple will not have shared familiarity and there is less grounds for suspicion, as mentioned at the conclusion of the halachah.

In the Talmudic era, the custom was to build blocks of homes that opened up to a communal courtyard. Several of these courtyards would open up to a single lane. If a man and his divorcee would dwell in a single courtyard - and even in a single lane - they would meet each other on a frequent basis. In such a situation, we fear that the familiarity that they shared in the past might lead them to be intimate.
Rav Moshe HaCohen and others question the Rambam’s ruling, noting that as long as the woman has not remarried, there is no prohibition against relations between the couple. They cite the standard text of Ketubot 27b which reads “A woman should not marry in his neighborhood.” They maintain that the prohibition applies only when the woman remarries. She and her new husband should not dwell near her previous husband lest this lead to adultery.
The Shulchan Aruch (Even HaEzer 119:7) quotes the Rambam’s wording. The Rama, however, mentions that if a woman remarries, she should not dwell in the same lane as her ex-husband even if he is not a priest.

Since he is also bound by the prohibition against relations with a divorcee, there are more severe restrictions.

Rather than demand payment herself. In this way, they will share less contact.

For one of them should have appointed an agent so that they would avoid meeting each other.

Since they never lived together, we do not fear that meeting each other will lead to intimacy.

This applies if the home belongs to the husband and even if the woman also owns a home in that courtyard or the couple’s home was rented (Chelkat Mechokek 119:27). Ketubot 28a explains that it is more difficult for a man to leave his home than it is for a woman.

In this instance, she is not “dwelling securely,” because she was informed of the temporary nature of the relationship from the outset. See Yevamot 37b which gives the example of several Sages who would marry women for brief periods of times after informing them beforehand.
See also the Chelkat Mechokek 119: 1 and the Beit Shmuel 119: 1 which debate whether it is proper for a man to engage in relations with his wife in such a situation. For as stated in Halachah 12, a man should not engage in relations with his wife if he intends to divorce her.

Since they live apart from each other, it is possible that they will not know of the other’s existence. If they visit that other locale, they may marry a relative without knowing of the family connection.

For then, it will be unlikely that his descendants will intermarry unknowingly.

For we fear that he will die as they did. See the Rama (Even HaEzer 9: 1) who mentions certain leniencies concerning this situation.

The commentaries cite the Biblical narrative concerning the marriage of Judah’s sons to Tamar (Genesis, ch. 38) as proof of these laws. At the outset, Judah did not want her to marry his third son. After he had relations with her, however, he married her and continued living with her as man and wife.

The term am haaretz which we translated as "unlearned" has broader implications. As indicated by the following halachah, it also has the connotation of one who is not careful in the observance of the mitzvot and whose character is unrefined and underdeveloped.

Pesachim 49b.

The commentaries note that Pesachim, op. cit., states “it will lead to poverty.” Some resolve the differences by explaining that poverty will lead a family to strife.

I.e., we can assume that his wife will return to her family and that the children will be raised according to the prevailing atmosphere in that home. From the statements of Rama (Even HaEzer 2:6), we can conclude that if an unlearned person is precise in his observance of the mitzvot, these words of caution do not apply.