While last week we saw takkanat hashavim in some monetary situations, Rambam uses this term in a revolutionary way. He was asked about a young man who had a live-in maid. His father’s wife and her three children also lived with him, so there were minimal problems of yihud, of their being alone together in a place where they were likely to remain undisturbed. This maid was seen by the Jewish community as not Jewish, but had presumably been partially converted (as if she were a shifhah kena`anit, a non-Jewish slave).

During a dispute with his brothers, the non-Jewish authorities became aware of this woman’s existence, and investigated the matter, since it was illegal for a Jew to have a non-Jewish servant. Asked by the judge as to her religion, the woman claimed she was Jewish, born and bred. The judge offered her the opportunity to convert to Islam, but she refused, sticking to her claim of being Jewish. Freed by the judge, the two then returned home, where the rumors were that they were conducting themselves as husband and wife. The questioners asked Rambam what their responsibilities were as a community in terms of controlling this couple’s conduct.

Rambam ruled that the man should free her (accepting the claim that she was only partially converted and was indeed "owned" by the man) and marry her (assuming that is what they wanted). The surprising part of this ruling is that the Talmud (Yevamot 24b) and Rambam himself explicitly prohibit a man from marrying a freed slave with whom he was suspected of consorting while she was still a slave. True, if a couple ignore that rule and marry anyway, we do not coerce a divorce, but how could Rambam permit this in advance?

Rambam recognizes the problems in his ruling, and says that he has ruled that way many times, because of takkanat hashavim. That seems to mean that Rambam takes Hazal’s financial principle and applies it to a much different realm. To encourage the man to cease violating a relatively serious offense—living with a non-Jewish slave prior to her full conversion—we dispense with a protective ordinance Hazal had instituted to avoid exactly such situations.

We do not own slaves today, so this might seem a mere historical curiosity, except that the same passage that prohibits marrying a freed slave where there were suspicions of improprieties mentions a convert. In that case, if the rumors were that this convert (male or female) had improper relations with a Jew prior to conversion, they also are not allowed to marry once the non-Jewish partner has converted. Would we be willing to apply takkanat hashavim here as we had in the case of freed slaves?

Ahiezer (R. Chaim Ozer Grodzenski, 3:26, par. 7) addresses that question in a lengthy teshuvah. He was asked about a couple who were married civilly while the wife was not Jewish, and she now wishes to convert, so they can raise their family as Jews. Even if we allow her to convert (another thorny issue, since the halakhah is fairly clear that we do not allow people to convert if their motives are marriage), can she stay married to her husband? The questioners also point out—and R. Chaim Ozer took this aspect of the question seriously as well—that if we prohibit their marriage, they may simply go to a Reform rabbi, for a completely invalid conversion.

Some avenues of permissibility that R. Chaim Ozer considers (along the way to relying on Rambam’s formulation) include the question of why Hazal prohibited this marriage. Some opinions thought it was a question of not wanting to confirm the earlier rumors, while others simply claimed that the relationship prior to conversion makes the conversion itself suspect (since we wonder whether it was only to allow the continuation of the relationship). According to the first view, an existing civil marriage is easier to permit, since we are not dealing with rumors of an improper relationship, but fact, so that allowing them to stay together will not add more information.

Even according to the second view, R. Chaim Ozer is of the opinion that we can accept a convert as long as we can be reasonably certain that the convert will fundamentally adhere to Judaism. That does not necessarily mean faithful observance, since no one is fully observant; rather, as long as basic mitsvot are followed, we can consider the person a convert.

In terms of allowing them to live together, however, R. Chaim Ozer is forced to rely on Rambam’s leniency, takkanat hashavim. In trying to make a life of observance easier on a returning sinner, we allow even something the Talmud explicitly prohibited. That should not—I hope this is obvious—lead us to think that the sinners are profiting from their sin; it just means that we recognize situations where the full and proper repentance would be too burdensome on the penitents, and that we therefore seek a middle ground that they can live with, in order to help them return to a life of observance.

To close on a different note: R. Moshe Feinstein ztllh"h was asked about a couple who were becoming observant and had expensive porcelain dishes (I assume this means fine China) that they had not used for over a year; could takkanat hashavim allow them to kasher what is ordinarily not? For various reasons, R. Moshe allowed them to do hagalah (putting the plates in hot water) 3 times and use the plates. May Hashem grant us all the opportunity for teshuvah and accept us with a takkanat hashavim that brings us closer to His service. Shabbat Shalom.