This may be obvious, but....
The Hagahos Ashri writes on our sugya that one is not allowed to hit is wife and is chayev for any damages for injuring her. If he continues to hit and embarass her in public, we force him to divorce her and she is entitled to kesubah. The Yam Shel Shlomo (21) elaborates on the severity of the issur. He explains that if one is responsible for unintentional injury that she incurs through tashmish hamitah, certainly when he intentionally hits her. He also quotes in the name of the Maharam:
ואין זה דרך בני עמינו להכות נשותיהם כמנהג הגוים, חלילה לכל בן ברית מעשות כדבר זה, ואם היה בא לפנינו דין זה שאשה קובלת על בעלה שמכה אותה היינו מחמירים עליו מאילו היה מכה את אחר
5 comments:
The gemara seems to make a distinction between reshus beis din in which it is permitted to do something but you are still obligated if damage ensues versus reshus mitzvah which you are obsolved of liability (ner chanukah and running on erev shabbos). If there is a mitzvah to be with one's wife, why is one liable for damages if she is hurt during tashmish, it should be reshis mitzvah?
There may be a difference what you are actually doing. In the case of ner Chanuka, the liability stems from negligience of not properly safguarding a fire. The same will hold for running on an errand Erev Shabos and colliding with another. In the case of Tashmish, it is the very act he is doing which harmed and resulted in damage.
Not sure I understand how that leads to liability. If the very act is in fact deemed a mitzvah and the husband is not negligent in performing that mitzvah, why is he obligated to pay nezek (or all 4 things minus embarrasement according to the Tur). he had a mitzvah to do the act just like he had permission to light the candles outside and he should not be liable for any resulting damage.
first, thank you for the question, it is very thought provoking. i think that the answer is that we have to focus on what chazal permitted, and whether there was negligence beyond what they permitted. By ner chanuka they permitted the lighting of ner chanuka outside, knowing that it is prone to damage. They did this without requiring one to stand over his candles guarding them the entire time they are burning. Since it is a mitzvah that is with the "reshus beis din", they cannot hold you liable for damages. But, the mitzvah to have relations with one's wife is to do it in way where he is careful not to cause injury. When he has relations in a careless manner that results in injury, his negligence surpassed the permission that he was granted by the torah, and is therefore liable.
Maybe it is only a mitzvah during the appropriate onah but not during that time it isn't a mitzvah
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