Shiur #8 of Telephone Conference - More on Negation of Marriage Because of a Blemish Wed 9:30 PM

Shiur #8 Telephone Conference – More on Negation of Marriage  because of a Blemish

Wed May 20  9:30 PM – Call 605-562-3130 then enter code 411161#

1.       We discussed in Shiur #7 last week that HaGaon Reb Moshe Feinstein is lenient but many Gedolim are strict about whether a major blemish negates a marriage. Today we want to look into this further.

2.       Gemora Kesubose 57b -  A woman is an Aruso, married to a man, but stays in her father’s house until the Chupa, when she becomes a NISUO, fully married.  If it is discovered that the Arusa has a major blemish, the marriage is negated. See Rashi there.

3.       This would seem to be a proof to Reb Moshe that a serious blemish can negate a marriage. However, this is only about an Arusa, but perhaps once someone has Chupah the conditions for negating marriage are themselves negated, as we discussed last week at length. See Shulchan Aruch EH 38:35,36 and Yevomose 107. A pious Jew does not want to have relations with a woman without marriage, and he cancels his conditions.

4.       Tosfose Kesubose 72b ד"ה על מנת  writes that even though the gemora says that a blemish can negate the marriage, the gemora in Kesubose 73b brings two opinions. One is that the woman’s marriage is negated and turns into a doubtful marriage, and she needs a GET. The other opinion is that the Torah permits her, but the rabbis require a GET. The Rosh 72b says that the opinion that it is a doubt is a sin diorayso to remarry without a GET and Tosfose Kesubos 72b  ד:ה על מנת says the same thing.

5.       If so, a marriage negated can still require a GET. Bais HaLevi and Ain Yitschok disagree with Reb Moshe  as he quotes in Igeres Moshe EH I:79:1. Ayin Yitschok of the Kovneh Rov I:34:7:44 quotes those who forbid her remarriage as the Chavass Yoir, Besomim Rosh, Rashbatz and Shevuse Yaacov. Thus, the gemora and the many authorities who forbid the remarriage based on a blemish would prevent a woman from remarrying even if her husband has a major blemish, even if there is a possibility that the marriage is negated, as is taught in Kesubose 73b.

6.       The gemora Kesubose 73b says that a woman who has a blemish of nedorim that a husband doesn’t tolerate, and therefore by the Torah the marriage is negated as the husband did not know this before he married her, nonetheless, Rabo holds that she needs a GET by rabbinical law. Rovo says that there is a doubt in the Torah itself if she needs a GET in such a case. Thus, even if the marriage is blemished, she needs a GET.

7.       Reb Yosef ben Leib considered the rebbe of the Bais Yosef writes in volume II:19:3 that the custom of rabbis is when rabbis argue about if a woman can remarry that even if a majority of rabbis permit her to remarry, if a minority forbid it, we are stringent and the woman cannot remarry. In a case of a person with a blemish, the majority of rabbis forbid a woman to remarry, and in that case, surely the woman has a problem remarrying.

8.       Tosfose there in Kesubose 72b says that some blemishes require a GET and some do not. Tosfose mentions the blemish of EILENUSE [whereby a woman can have biah but cannot have children, as she has a blemish in her entire system and is not like other women] does not need a GET. But other blemishes do not free the woman without a GET.

9.       Some rishonim hold that even when the husband did not know that she is an Eilunes, and he discovers that she is, even though this is a serious blemish, she needs a GET.

10.   Rambam Ishuse 4:10 – If one makes kiddushin whether the man is a Serise Chamo or Seris Odom, and so with an Eilenuse who is married with Kiddushin [Erusin] these are complete marriages [the couple is married by Torah law].

11.   Magid Mishneh quotes on the above Rambam that Rabbeinu Tam ruled that an Eilunes who was not known to be one and married with Erusin, that she needs a GET.

12.   Rambam Ishus 24:2 “One who marries a woman and does not know her blemish and she turns out to be an Eilunes, she does not get a Kesubo nor does she get the Conditions of a Kesubo, but extra gifts from the husband to his wife she does keep.”

13.   Rambam ISHUS 7:8 One who makes kiddushin [erusin] to a woman, and it is discovered that she has a blemish that render a woman unfit or one of the oaths that she made renders her unfit, and afterwards he discovers that she has this blemish, the marriage is a doubt if it is negated [because he did not make a clear condition].”

14.   From this we see that if the husband or wife did not make a clear condition and then it is discovered that they have a bad blemish, the marriage is a doubt, maybe it is negated, maybe not, and she needs a GET and without it she cannot marry.

15.   The Magid Mishneh explains that the Rambam paskens like Rovo that if it is discovered after the Kiddushin that the woman has a bad blemish it is a doubt and she requires a GET to remarry. The gemora there says clearly that she needs a GET if no specific condition was made to negate the marriage if she had this problem.

16.   This again is a proof that even in serious blemishes we don’t allow the woman to remarry without a GET, and many poskim hold like that, not like Reb Moshe.

17.   Rambam rules Ishuse 7:23 that if a man made a condition in Erusin that he did not want a wife with certain blemishes, and the wife had them, the marriage is negated. But if afterwards  he married her with Chupah or took her to his house and they were together and then he did not make a condition, the woman is married and she needs a GET. Thus, even if there is proof that Erusin is negated by a blemish, if there is Nisuin the conditions may be negated and the woman needs a GET. Thus all people who want to negate a marriage because of a blemish, if they did not make a clear condition before the Chupa, they are married and the wife needs a GET. How does this agree with Reb Moshe’s lenient negation of marriages, that seem to mean even if they were married a few years and maybe even if they had children, the marriage is negated?

18.   The Meiri Kesubose 72b D “H “One who marries a woman, etc.” says that when a man marries a woman who has the blemishes of oaths that men don’t tolerate, and he did not know about them, the marriage is negated and no GET is needed. This is a proof to Reb Moshe that a strong blemish negates the marriage.

19.   Reb Moshe and Chelkas Mechokake EH 39:9 say that the woman must immediately leave the marriage if she discovers a major blemish in the husband. But how do we know that she did leave immediately?

20.   Thus, the issue of a blemish to negate a marriage has various aspects and opinions. The majority who discuss this do not permit the woman to remarry without a GET. Then we have the opinion of Rosfose Kesubose 72b that it may depend on the level of blemish. If so, who can determine what the thoughts of Chazal were in considering this?

21.   The latest assaults on Shulchan Aruch by people who are inventing new ways to free a married woman based on some invention in defiance of the Shulchan Aruch, are far away from the ideas taught here.