One of the people in may shiur asked me this morning whether one is required to marry a girl who is assur to him b'issur d'rabonon like a sheniya l'arayos, since on a Torah level she is permited there should be a chiyuv to marry her.
I found that the Rambam (Na'arah 1:5) and Shulchan Aruch both say that if she is assur m'drabonon he does not have to and is not allowed to marry her. The Kesef Mishna (also brought in Beis Shmuel) explains that since the Torah recognizes the ability for the rabbonon to impose issurim, the torah recognizes rabbinic arayos i.e. shniyos to be assur and therefore would not qualify as "a woman who is fit to him". The Mishnah l'melech quotes R' Ahron Sason who disagrees with the explanation of the kesef mishna and says that the peshat in the Rambam is that although m'doraysa there is a mitzvah to marry her (since the issur d'rabonon is not recognized by the Torah), the Rabbonon were gozer not to marry her based on the rationale of "yeish koach b'yad chachamim l'akor davar min hatorah".
The gemara on 36a which entertains the possibility that there is not k'nas for shniyos who are assur m'drabonon, says that since she is fit m'doraysa why shouldn't there be k'nas? Rashi explains the question that since on a Torah level she is permitted, we should apply the pasuk of "lo tihyeh l'isha" since she is technically permitted so there should be k'nas (even according to r' shimon ben m'nasya). Clearly the gemara holds that on a Torah level, we consider shniyos d'rabonon as being "fit for him", and therefore he should have a mitzvah to marry her m'doraysa. So the only rationale for the opinion of the Rambam not to marry her is that the Rabbonon were oker davar min hatorah (not like the kesef mishnah). See the Mishna l'melech who pushes off this proof and says something similar to the kesef mishna that when the torah says "lo tihye l'isha" refers to a "woman permitted to him", it automatically excludes any woman who is not permitted, even if the issur is only m'drabonon.
The gemara on 36a which entertains the possibility that there is not k'nas for shniyos who are assur m'drabonon, says that since she is fit m'doraysa why shouldn't there be k'nas? Rashi explains the question that since on a Torah level she is permitted, we should apply the pasuk of "lo tihyeh l'isha" since she is technically permitted so there should be k'nas (even according to r' shimon ben m'nasya). Clearly the gemara holds that on a Torah level, we consider shniyos d'rabonon as being "fit for him", and therefore he should have a mitzvah to marry her m'doraysa. So the only rationale for the opinion of the Rambam not to marry her is that the Rabbonon were oker davar min hatorah (not like the kesef mishnah). See the Mishna l'melech who pushes off this proof and says something similar to the kesef mishna that when the torah says "lo tihye l'isha" refers to a "woman permitted to him", it automatically excludes any woman who is not permitted, even if the issur is only m'drabonon.
The Mishna l'melech concludes that even though the kesef mishna implies that according to shimon hateimani who darshens "lo tiyeh l'isha" includes any women to whom there is tefisas kiddushin, he would be required to marry even chayvei lavin; it is clear from the gemara that the drasha is not the real reason, but since the asei is up to her will and is therefore weak (as i posted yesterday), it does not have the power to push off any issur (even acc. to shimon hataimani).
1 comment:
reminds me a little of the question whether there can be lifnei iver d'oraysa when you get somebody to do an issur d'rabanan (though, there we have an additional consideration that it is "lo gara m'eitza ra'ah")
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