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I think I am getting an understanding of where you are erring.<br>
<br>
<b>The Shulchan Aruch (E.H. 154) is discussing the issue of what
force is allowed where the GEMORA KESUBOS 77 MENTIONS that a
divorce is either forced or required.</b> It is not talking about
cases where the Gemora says or indicates that husband has the
perogative whether he wants to get divorced. [BTW the Beis Yosef in
154 says that he discusses the case of forcing for ma'us alei in
simon 77]. Since in case of ma'su alei a get is not required by the
Talmud to give or be forced - then it is not being discussed in
simon 154. The harchokos of rabbeinu Tam are mentioned in 154
because according to Rabbeinu Tam they don't constitute force and
thus are relevant in a divorce case where force is not allowed or
where you want to be machmir to avoid a get me'usa. Thus at most you
can conclude is that in a case where a get is totally optionally
according to the gemora - that the Rema would allow the use of
harchakos of Rebbeinu Tam if beis din saw a need for the divorce. No
word of what the Shulchan Aruch would say. <b>So when you insist
that simon 154 is referring to all divorces - that is a major
error.</b> It is only dealing with all cases of divorces where the
gemora uses the term "force" or "required" or that "she goes out".
it is not dealing with cases where Get is totally optional according
to the gemora. <br>
<br>
In contrast you start with the assumption that the Shulchan Aruch
must hold like the Rambam that in a case of ma'us alei the Talmud
( Kesubos 63b) itself requires a divorce. In fact the Shulchan Aruch
says no such thing and but clearly states regarding ma'us alei in
77 - "if the husband <b>wants</b> to divorce" . Thus he clearly
disagrees with the Rambam who says he <b>must</b> be divorced in
ma'us alei - see Be'er Hagola and Magid Mishna . You explain this
difficulty away by claiming that simon 77 is only dealing with the
issue of kesuba. But the Beis Yosef says otherwise. And the Otzer
Haposkim would not attach a whole kuntres of "Forcing in a case of
ma'us alei "- if it weren't relevant to the simon. If you are
correct then the Shulchan Aruch would have to say that even though
the halacha is that we can force the husband - but the minhag or the
takana of the sages is not to. But he doesn't. In the Beis Yosef -
there is no statement that he agrees with the Rambam - and in fact
he brings a list of poskim who reject the Rambam. <br>
<br>
You also have a problem why those who are maikel in ma'us alei and
allow harchakos of Rabbbinu Tam - when they list those who agree
with the Rambam - do not mention the Shulchan Aruch or the Rema! The
Tzitz Eliezar in particular has a major dispute with Rav Eliashiv
about who agrees with the Rambam - he greatly expands Rav Eliashiv's
list of Rambam and Rashba - but does not include the Shulchan Aruch
and the Rema [He does say he has a diyuk which could be understood
in one place that Rema allows the use of force in those places where
the Rambam is accepted - hardly a support for your position].<br>
<br>
Tzitz Eliezar 4:21 [see also 5:26] <br>
<br>
שו"ת ציץ אליעזר חלק ד סימן כא <br>
<br>
אבל זה לבד עוד לא מספיק לנו בזמן שהמ"מ כותב על אתר שהרבה מן המפרשים
נחלקו על הרמב"ם בזה ושכבר פשטה הוראה בכל הארצות שלא כדברי הרמב"ם
בזה, וכ"כ גם הב"י בטור. ובזמן שהטור ובעלי השו"ע פסקו ג"כ שלא כדברי
הרמב"ם. <br>
<br>
<br>
<br>
On 5/13/2012 6:08 AM, Micha Berger wrote:
<blockquote cite="mid:20120513030809.GA54545@aishdas.org"
type="cite">
<pre wrap="">On Sun, May 13, 2012 at 12:52:56AM +0300, Daniel Eidensohn wrote:
</pre>
<blockquote type="cite">
<pre wrap="">On 5/9/2012 10:45 PM, Micha Berger wrote:
</pre>
<blockquote type="cite">
<pre wrap="">Both the SA and the Rama say that iqar hadin is like the Rambam and
we may use kefiyah even when the gemara doesn't explicitly require a
divorce. However, the SA has a "some say" not to, and the Rama lauds
the minhag of some areas not to allow kofin oso ad sheyomar "rotzeh
ani", and avoid the dispute. Where the gemara*does* require a divorce,
which I am not insisting is our case, there is not even a "yeish omerim"
against the Rambam. So yes, we do hold like the Rambam -- we just
prefer lemaaseh not to rely on him lekhat-chilah for beyond iqar hadin
reasons.
</pre>
</blockquote>
</blockquote>
<pre wrap=""> The above paragraph is a serious misreading of the Shulchan Aruch and
Rema.
It says *nowhere* in the Shulchan Aruch or Rema that they hold like the
Rambam in the case of where the wife claims Ma'us Alei (he disgusts me)
- the case under discussion...
</pre>
<pre wrap="">
In fact, it doesn't limit itself to any particular subset of divorces.
If you think the SA isn't referring to all divorces, show where he
says so or at least any of the nosei keilim do.
</pre>
</blockquote>
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