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

[Chana Luntz]

> > 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 ---
> > > 

...

> 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.

This seems all very odd to me, because the reference to the view of
Rabbanu Tam as brought in Tosphos in Kesuvos 3b, and again in tosphos
Sanhedrin 74b, is brought as an explanation as to why a woman is not
(and in the case of Sanhedrin particularly, why Esther HaMalka was not -
to tie in two threads) required give herself over to death (given that
adultery is one of the big three that is yarog v'al yavor).  And clearly
the subtext of that discussion is that Esther was not thereby making
herself forbidden to Mordechai.  And that is precisely the Rivam's
criticism of Rabbanu Tam in both places that in such a case the biah of
an oved cochavim should not assur her to the baal (for which he quotes
Kesuvos 26b) and specifically vis a vis Esther what was the kasher
avaditi - ie if this was the reason it was OK for Esther, why did it
make a difference if she actively went to the king or not.  I agree that
it then goes on to say that on this basis Rabbanu Tam permitted a woman
to her gentile captor who later converted, but that is not the thrust of
the discussion in either place.

Is it possible (and I don't know the DM's position on this) that he held
like the Mishna and gemora on Kesubos 26b, which seems to imply that a
married woman in general even if not the wife of a cohen becomes
forbidden to her husband on captivity  on being violated and not like
the gemora on 51b which seems to hold that a captured woman who is not
the wife of a cohen is permitted to her husband, even if she is seen
doing things to help the bandits like hand them arrows, on the ground
that she is doing this because she is afraid of her life, in which case
it is considered like anus and hence she is permitted to her husband?

Because this situation as you describe it above in the time of the
Trumos Hadeshen seems rather odd vis a vis the women married to
Yisraelim - because prima facie as you describe it it would seem to fall
fair and square within the gemora on Kesubos 51b - so, unless the DM did
not hold like the gemora on Kesubos 51b (as it would seem the Rivam
might not have, given his citation of 26b), then there must have been
some other factors which took the case out of the gemora on Kesubos 51b
- unless of course the key question was the wives of the Cohanim, which
prima facie would be forbidden on the basis of the gemora on Kesubos
51b, but then it is hard to see how afkinu helps any better.

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

Sorry, this is a reference to a letter of the Sridei Aish (which I do
not have a copy of, but read one time or other) in which he discusses
difficulties he has with various aspects of Yiddishkeit, and
particularly the phraseology and the way non Jews appear to be dealt
with.  I am sure R Marc Shapiro would  be able to direct you to a
source.  However it is not a halachic reference.

> 
> 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.

I am also certainly no expert.  I confess that I drew this from a couple
of things I had been told (but have never seen in writing) about
situations of droight du seignour and how these were handled
historically (I would think post Rishonic, but I am really not sure).
Of course the gemora in Kesubos 3b that we are discussing deals with a
case of droight du seignour, but only if marriage was on a Wednesday,
and this problem could apparently be avoided by switching marriages to a
Tuesday.  But in places where the seignour was not so accommodating, you
(apparently) were faced with a situation where Cohanim could not get
married at all if one did not allow for this somehow. So be sha'as
hadchak I was told they fell back on Rabbanu Tam - and I just thought it
was a dvar pashut. However because I am relying on oral sources, which
are not always the most reliable, I  could well be wrong [Somebody also
told once me that droight du seignour was a myth, although clearly the
gemora does not believe it is a myth - and the two tales contradict one
another].

BTW, I am not sure if this is necessarily related, but there is a modern
day scenario that may also be sourced in Rabbanu Tam's position.  That
is, mother marries Orthodox, then divorces civilly and never receives a
get.  She them marries civilly a non Jew and has a child by that second
marriage.  Is the child a mamzer?  Now this was a kind of halacha
l'ma'ase situation for my husband in his single days, as there was a
girl loosely in his social circle at university who was precisely in
this situation.  And he was told that technically she was not a mamzeret
and technically he could go out with her and marry her (I don't think
they were compatable for a whole host of other reasons, but that is
another story).  But she did subsequently get married, and while I think
she found it difficult to find somebody in the UK who would marry her,
she did in the US, and I believe had an Orthodox wedding.  Now how else
do you explain this if not by way of Rabbanu Tam?   Or am I jumping to
conclusions here and can you derive it directly?

 
> Good Shabbos,
> Yitzhak

Regards

Chana