The Keztos (275:4) discusses how to understand the requirement for kavana by chalitzah: Is it the same din of kavanah that is required for all mitzvos based on the rule of mitzvos tzerichos kavanah, or is it a kavanah similar to the da'as required to make a kinyan?
Tosfos (Bechoros 19b) based on the Yerushalmi writes that m'doraysa a ketana can perform chalitza. The Chacham Tzvi (quoted in the Ketzos) argues that since a ketana has no da'as, she would not be able to meet any requirement of kavanah based on mitzvos tzerichos kavanah. The kavanah requirement must be similar to kinyan, in which case so long as a gadol is the counter-party in the transaction, his kavanah for the kinyan fulfills the necessary requirement (da'as acheres makneh).
However, Tosfos elsewhere (Yevamos 104b) writes that the requirement of da'as for chaliztah is satisfied by the fact that the ceremony is performed in the presence of Beis Din -- gadol omeid al gabav is sufficient. The din of omed al gabav usually comes into play when there is a requirement of lishma, e.g. baking matzah. It never comes into play in the context of kinyanim. Apparently the type of kavanah/da'as required for chalitzah does not fall neatly into the kinyan category the Chacham Tzvi places it in.
This topic is discussed b'arichus in the seforim of various roshei yeshivas: R' Chaim, R' Shimon in Sha'arei Yosher, and others. Too much of an arichus for me to write about now.
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does the ketana here need kavanah to 1) enable the brother-in-law to do his mitzvah, or 2) to do her own mitzvah of chalitzah, or 3) both? as the need may change, mightn't the answer?
ReplyDeletefor 1), maybe "his kavanah for the kinyan" would suffice for her's (and gadol omed is Not in play); for 2), direct chinuch "al gabov" might be required, & understood to be operative; for 3), we play both
sides with a swiveling strobe light...
THe chidhushei haran in Chulin quoting the ramban (and quoted by the maharatz chayos in chagiga) explains that the machlokes of mtizvos tzrichos kavana by the amoraim has nothing to do with the machlokes of tanaaim in various places about whether specific mitzovs (shechita, tevila, etc) need kavana. The former is kavana WHY you are doing it (to be yotzei the mitzva) and the latter is kavana WHAT you are doing (ie I am shechting an animal, etc). The chiluk is relevant where an action is not only a kiyum hamitzvah but also creates a status (kosher meat, taharah etc). I dont believe that chalitza is mentioned by the Ran explicitly. But it is mistaber that the whole discussion would apply to chalitza that it is the WHAT kavana and not the WHY kavana
ReplyDeleteAnon1 -- I get the chiluk, but I am not sure where you are going with it. How does it help in the case of ketana by chalitza? Either type of kavanah requires da'as, doesn't it?
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