The gemara brings a machlokes when one is married for 10 years without children, whether there is a chiyuv to divorce. Rashi makes it clear that the issue is whether we force divorce so that he will fulfill the mitzvah of p'ru u'rvu, just as we force for all mitzvos aseh. The gemara also implies that the issue is not her complaint, since even if she accepts to stay married we would still force divorce. Why is the mitzvah of p'ru u'rvu different from other mitzvos aseh that we force for? Why is there a dispute whether or not we force? Perhaps it is because we are not directly forcing to fulfill the mitzvah, as rashi points out it is only called a d'rabonon, even though the actual mitvah is d'oraysa, we refer to it as d'rabonon since the mitzvah would only require him to marry another woman, not necessarily to divorce this one. That is why R' Asi says that we don't force at all since there is no way to directly force to do the mitzvah. Nevertheless, we pasken (Even Haezer 154:10) that we do force, but nowadays we don't force (Rama).
The halacha seems to imply that although nowadays the custom is not to force divorce, but he is really obligated to divorce. Based on this the Pischei Teshuva (154:27) deals with a Talmid Chacham who wants to stay married to his wife since he is ill and she is a real yarei shamayim and takes great care of him, but they don't have kids, so must he divorce her? After quoting various limitations of this halacha (i.e. only in E"Y....), he says that one is not required to spend more that 20% on a mitzvas aseh, and since her kesubah happens to be expensive, he would not be required to spend that much on p'ru u'rvu, especially since this mitzvas aseh is weaker than others since there is an opinion in the gemara that we don't force for it (since even if he gets divorced we don't know if he will really perform the mitzvah).
The halacha seems to imply that although nowadays the custom is not to force divorce, but he is really obligated to divorce. Based on this the Pischei Teshuva (154:27) deals with a Talmid Chacham who wants to stay married to his wife since he is ill and she is a real yarei shamayim and takes great care of him, but they don't have kids, so must he divorce her? After quoting various limitations of this halacha (i.e. only in E"Y....), he says that one is not required to spend more that 20% on a mitzvas aseh, and since her kesubah happens to be expensive, he would not be required to spend that much on p'ru u'rvu, especially since this mitzvas aseh is weaker than others since there is an opinion in the gemara that we don't force for it (since even if he gets divorced we don't know if he will really perform the mitzvah).
I would suggest that even if her kesubah is less than 20% he would still not be obligated to divorce her since she is worth more to him that 20% of his assets. R' Menchem Spira pointed out that R' Moshe (Igros Moshe 1:57) makes a similar claim regarding a widow who cound not find a job to support her kids if she would cover her hair. Based on Rashi Kesubos 72a he considers it to be a mitzvah to cover rather than an aveira not to (so not covering would be a bitul mitzvas aseh), so she would not have to spend more than 20%, and the ability to find a job is worth more to her than 20% of a normal person's assets.
5 comments:
your are putting emotional value as part of the 20%, in halacha we don't deal with emotional value per say. no?
i am not sure what you mean. everything that a person would pay money to prevent has a value (although for damages you may not have to compensate for that value i.e. emotional damage). But, if one would have to sacrifice a limb or become ill to fulfill a mitzvah, we would presumably determine whether he would be willing to give up more than 20% of his assets to avoid that illness, and if he would then he would not have to do the mitzvah since it is more valuable to him than a chomesh n'chasav. Similarly if a person would not be willing to give up a wife for less than a chomesh, the rules would be the same.
i think this is a big chidush, do you have proof in a similar case where its not directly money related. (if the wife is making money, or if he would have to hire a servant instead of her etc. maybe i would agree more readily, but that would also be a chidush)
the minchas asher (breishis 39) quotes the avnei nezer (y.d. 2:321) and chelkas yoav both write that a person is not chayev to get sick for a mitzvah "since it is no worse than spending more than a chomesh". Obviously one can push this off and say that a chomesh is a limit since we are afraid of him becoming poor (as it says in the gemara itself) but w/o that concern he would have to spend everything on a mitzvah, so by becoming sick or emotional stress where this is not a concern one would be chayev to "invest" everything into the mitzvah.
the practical implications then become... almost wild... don't tell this to high school boys!
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