Wednesday, January 13, 2010

Baba Basra 146b - Planning for Divorce

The Rashbam learns the story of the "totranis" (woman who can't smell) to be a case where she is already fully married, and he is testing to see if he should give her a gett. The gemara concludes that since his intention was to divorce her if he finds her to have this problem, he loses the rights to inherit her. From this the Rashbam paskens that any time a wife dies while they are seriously fighting and he has already decided to divorce her, the husband doesn't inherit her. Tosafos and the Rosh both reject this approach and learn the gemara to speak specifically about a case of an arusa, who as it is he has no rights to inherit her. The Rama (E.H. 90:5) paskens like the Rosh and Tosafos who reject the Rashbam, therefore if she is safeik divorced he doesn't inherit, but if she is still married even though he intends to divorce, he still inherits. The Pischei Teshuva (7) quotes from the chasam sofer that perhaps the Rashbam only applies when it is completely in his control to divorce her, so when he intends to divorce her, it is considered a done deal. But, nowadays where there is a cherem against divorcing her against her will, since she must consent, his desire to divorce her isn't sufficient to make him lose the inheritance.
Although we don't pasken like the Rashbam regarding inheritance, the Maharshal in Gittin (perek 2) writes that for aveilus we always follow the lenient opinion, therefore if a wife would die while they are in the middle of divorce negotiations, even before she receives a gett, the husband would not have to sit shivah for her. The maharshal writes that the chachmei Eretz Yisroel agreed, and the Pischei Teshuva quotes the Yeshuas Yacov where he relied l'ma'aseh on this maharshal. However, R' Shlomo Kluger points out that based on what we quoted from the Chasam Sofer that even the Rashbam only said his din in a case where you can divorce her against her will, it would not apply nowadays even to exempt the husband from sitting shivah.

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