[Avodah] Just what ARE the rules of p'sak anyway?

[Yitzhak Grossman]

On Thu, 8 Nov 2007 14:29:10 -0000
"Chana Luntz" <chana at kolsassoon.org.uk> wrote:

> RYG writes:
> 
> > --- Begin Quote ---
> > 
> > [Quoting the T'rumas Ha'deshen:] But in the [aftermath of 
> > the] decree of Austreich they [women who had been captured by 
> > gentiles - see the previous section of the DM] were 
> > permitted, on the authority of Gedolim, to their husbands 
> > too, even to Kohanim ...
> > 
> > [The DM himself:] And it seems to me that perhaps the Gedolim 
> > who permitted did not do so Mi'dina but for a Zorech Sha'ah, 
> > for they saw that we must be concerned for future women, that 
> > if they were to know that they would be unable to return to 
> > the husbands of their youth, they might sin, and so they were lenient.
> > 
> > And do not say, can we be lenient with regard to an Issur 
> > De'oraisa? It seems to me that they relied on that which it 
> > is stated "kol d'me'kadesh a'da'ata d'rabbanan m'kadesh" and 
> > Beis Din has the authority to nullify their Kiddushin and 
> > they are therefore as single women and even if they have 
> > strayed they are permitted to their husbands, so it appears to me.
> > 
> > --- End Quote ---
> > 
> 
> I must be missing something here:
> 
> A) why did they not rely on the more usual their zera is considered like
> susim? (I always thought, despite the unhappiness of the Sridei Aish
> about this idea, that it was precisely for these reasons, and because
> this sort of thing happened too often, that it was good we held this
> way);

You seem to be referring to the celebrated opinion of Rabbeinu Tam.

A)  RT's famous ho'ra'ah, as cited by the Rishonim [0], was a
permission for a woman who had committed adultery to marry her gentile
paramour who had subsequently converted; it said nothing about whether
such a woman is permitted to remain married to her original husband.

B)  Shittah Mekubezes [1] states explicitly that Rabbeinu Tam didn't
permit the woman to her husband.

C)  Meiri [2] claims that "mikzas rabboseinu ha'zarfatim" permitted the
woman to her husband, but he seems to reject the shittah in toto.

D)  Terumas Ha'deshen [3] is apparently unsure, but he seems to lean
in favor of limiting RT's leniency to the adulterer.

E)  Hafla'ah [4] says that RT agrees that she is prohibited to the
husband, but not as a sotah, and perhaps from an edict of BD of Shem.

F)  P'nei Yehoshua [5] seems to conclude that RT agrees that there is a
De'o'raisa prohibition to the husband.

G)  The Poskim give at least two other reasons to justify RT's ruling
(see Rosh [6] and Mordechai [7]),  neither of which applies to the
husband.  SA [8] cites Rosh as a "yesh omrim", and the Rama and Nosei
Keilim don't seem to even mention RT's actual reason.

H)  I am unfamiliar with the responsa literature on the subject, and I
haven't seen the S'ridei Aish; where is it?

Summary: although I am not expert in the issue, I do not know the basis
for your assumption that we hold like RT, and additionally, it is far
from clear that RT is even relevant to the husband.  OTOH, if the DM
was really that desperate to understand the Gedolim cited by the
T'rumas Ha'deshen, I suppose he might at least have considered your
suggestion.

> B) How would afkinu help for Cohanim anyway, whether she was considered
> married to her husband the Cohen at the time or not, the problem of
> zonah would surely still exist?

Quite a baffling question indeed; the Avnei Mi'luim [9] asks it and has
no solution.  Ozar Ha'poskim [10] cites a couple of resolutions, but in
my quick perusal, neither of them seemed particularly compelling.

[0] Tosfos kesuvos 3b s.v. ve'lidrosh, Rosh ibid., Mordechai Sanhedrin
#720.  Although the Mordechai seems to indicate that RT permitted 
her to her husband, the text is problematic; see the Bach's
emendation.  I would think that the basic fact that the only recorded
ruling of RT was about an adulterer who subsequently converted
indicates that he was not lenient in the presumably rather more common
case of a woman wishing to remain married to her husband after adultery
with a Gentile.
[1] kesuvos 3b s.v. ve'ivra 
[2] ibid. s.v. eshes
yisrael
[3] I #219
[4] ibid.
[5] ibid.
[6] loc. cit.
[7] loc. cit.
[8] EH 178:19
[9] EH 7:11 (5)
[10] ibid.

> > Yitzhak
> 
> Regards
> 
> Chana

Good Shabbos,
Yitzhak
--
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