English translation — תצא ג

Sicha Gimmel <pg>138</pg>

A.

The Rambam wrote in Hilchos Gerushin<sup>1</sup>

"A man should not marry a woman with the intention of divorcing her,

and she should not be living under him and serving him with the intention of divorcing her."

And he repeated and taught this law in Hilchos Isurei Biah<sup>2</sup>,

and this is its wording: It is forbidden for a man to marry a woman with the intention of divorcing her, as it is said<sup>3</sup>

Do not plot harm against your fellow when he dwells securely with you,

And if he informed her at the outset that he is marrying her for a limited time, it is permitted.

And ostensibly, one must examine,

Why did the Rambam need to bring the law in two places — in Hilchos Gerushin and in Hilchos Isurei Biah<sup>4</sup>?

Also one must [understand] the differences between the two places: In Hilchos Gerushin,

he also brought the law "and she shall not be sitting under him and serving him while his mind is to divorce her" — which he did not write in Hilchos Isurei Biah; and in Hilchos Isurei Biah — a)

he brought a source for this from the verse "Do not plow etc.",

b)

he added a case where this prohibition does not apply — "and if he informed her at the outset..

it is permitted."

And behold, the source of these laws is in two sug­yas in the Shas

(as brought in N”K)

: in Maseches Yevamos<sup>5</sup>

a baraisa of R’ Eliezer ben Yaakov was brought: “A person should not marry his wife

(a woman<sup>6</sup>)

with intent to divorce her, because it is said, ‘Do not plot harm against your fellow who dwells securely with you’”; and in Maseches Gittin<sup>7</sup>

: R’ Mesharshiya said to Rava: If his heart is to divorce her and she sits under him and serves him, what [is the law]? He applies to him: “Do not plot harm against your fellow who dwells securely with you.”

And from this that in the Gemara the verse “Do not plot harm etc.” is brought both regarding the law of “he should not marry etc. with intent to divorce her” and regarding the law of “his heart is to divorce her and she sits under him etc.” it is proven,

that also the second law has its source in this verse.

And if so, it must be said,

why did the Rambam bring this verse only in Hilchos Isu”B as a proof for the first law

(he should not marry etc.)

and not in Hilchos Gerushin

(where he brought the two aforementioned laws)?

2.

And it can be said in all this: It is known that it is not the way of the Rambam in the book Yad to bring the sources in the verse

(that are brought in the Gemara etc.)

for the laws that he writes in the middle of the halachos and chapters,

except when the source pertains to the definition

(and the like)

<pg>139</pg>

of the halacha,

even though in the counting of the commandments at its beginning he was precise to bring the verse, and likewise at the beginning of the halachos

(that are from the Torah).

And therefore the verse brought specifically in the laws of Isurei Biah,

because there is explained through this the continuation of the halacha "And if he informed her at the outset that he is marrying her for days it is permitted",

that this is the novelty in the laws of Isurei Biah,

for this permission is

(according to the opinion of the Rambam)

only in the law of the beginning of marriage — "He shall not marry..

and his intention is to divorce her",

and not when she is already "dwelling under him" — and this is learned from the verse that he brought,

and as will be explained below.

And the explanation of this: in what is said "Do not plot against your fellow harm when he dwells securely with you"

(it is understood,

that this verse speaks of "harm" that in itself is permitted according to Torah<sup>8</sup>),

one must clarify — what is the essence of the prohibition in this,

which can be explained in two ways: a)

the emphasis in the prohibition of "Do not plot etc." is — the disgraceful conduct

(and bad character trait)

of the man who plots harm,

who deceives his fellow and plots harm against him when his fellow "dwells securely with you"; b)

that the main thing is the pain and humiliation of one's fellow — that his dwelling "securely with you" is in a degrading manner

(since he plots harm against him).

And the practical difference from this to halacha — when the "plotter of evil" informed his friend about this,

but his friend is in a situation that nevertheless he continues to sit with him

(for whatever reason)

: according to the first way,

since he informed him about this,

and now his sitting with him is not in a manner of "securely",

and there is no deception here,

behold this is not the conduct that the Torah prohibited; but according to the second way — he did not leave the prohibition through this notification,

since after all

(it is difficult for the friend to leave this sitting with this one who plots evil against him,

and)

he is distressed by this,

and therefore there is in this [a violation of] "Do not plot..

evil against your fellow".

And based on this we can say the reason for the dispute of the poskim in our case when "she dwells under him and serves him and his mind is to divorce her" — if his notification that his mind is to divorce her helps: some say that notification helps only at the beginning of the marriage,

for "if at the beginning she agreed to be with him for a limited time, she accepted and agreed, but when he later informed her [of his intent] to divorce her, what can she do and her heart is distressed within her and we apply to it 'Do not plot evil against your fellow'"⁹,

for they hold like the second way above; but according to the view of several poskim¹⁰,

"the essence of the prohibition"¹¹

of one who plots evil is specifically when "he sits securely",

and therefore "if he informs her that his mind is to divorce her, it is fine, and the verse thus implies: 'Do not plot evil against your fellow while he sits securely with you' — if he does not sit securely, i.e., he informs her, we have no problem with it"¹²,

and like the first way above.

3.

And it can be said,

that according to the Rambam, both are present in it,

namely, that there are two laws in the prohibition<pg>140</pg>

the aforementioned

(one law from the aspect of man's conduct and a second law from the aspect of his fellow's pain),

and their source is in two sugyas of the Talmud:

In Yevamos

(in the baraisa of Rabbi Akiva ben Yosef)

"A man should not marry a woman with the intention of divorcing her, because it is said, 'Do not plow [evil] etc.'"

It stands in the law of the prohibition from the perspective of the disgrace of the one who plows evil,

that this is the simple meaning of the verse — doing evil to one's fellow in a situation where his fellow "sits securely with you",

and this prohibition applies

(according to the Rambam)

specifically when the sitting with one's fellow came from the outset in a manner of plowing evil,

namely that this is his intention at the beginning of the marriage — in order to divorce her afterwards;

However, in tractate Gittin Rava innovates,

that even "if his heart is to divorce her and she sits under him and serves him",

this is not a fitting conduct according to the verse "Do not plow [evil] etc.",

but this is not

(so much)

from the aspect of the disgrace of the conduct of this one who plows evil,

but rather because his fellow's sitting with him "securely" is a degrading and distressing situation,

since he plots evil against him,

as above.

[But this is not the plain meaning of the verse,

and therefore he was precise in his language and did not say "it is forbidden because of 'Do not plow with an ox and a donkey together' etc." and the like,

but rather "he applies to it the verse 'Do not plow with an ox and a donkey together etc.'" — that even about this a person can apply the verse "Do not plow with an ox and a donkey together etc."].

And it is understood that from the perspective of this law of "Do not plow with an ox and a donkey together",

namely the prohibition of causing pain to one's fellow,

prior notification is not effective when she is sitting under him and serving him and his mind is to divorce her.

And as above.

And they are the two halachos in the Rambam: in Hilchos Gerushin he brings the law of Rava

(that is in Maseches Gittin)

that "she should not sit under him etc." due to causing pain to another; whereas in Hilchos Isurei Biah he brings

(from the Baraisa of Rabbi Eliezer ben Yaakov)

the prohibition to marry a woman with the intention to divorce her.

And therefore he needed to bring here the verse "Do not plow etc.",

and he did not write also the law of "she should not sit...

and his intention to divorce her" — because his intention here is to define the halacha and the novel law in this,

that this law its prohibition is because of "Do not plow"

(and not because of causing pain etc.)

and therefore — "if¹³

he informed her at the outset¹⁴..

it is permitted"¹⁵.

But still it is not settled completely,

for from the plain language of the Rambam in Hilchos Isurei Biah "it is forbidden for a man to marry a woman with the intention to divorce her, as it is said etc. and if etc.",

it implies that he comes to inform not only the definition of the halacha that he already wrote in Hilchos Gerushin

(and the manner in which it is permitted),

but also

(and primarily)

the essence of the prohibition.

Also: according to the above that the two halachos are distinct in their definition — it should have brought the prohibition of "a person should not marry a woman with the intention of divorcing her" only in the laws of Isur v'Heter,

together with

(the source from the verse and)

the permission,

and in the laws of divorce it should have brought only<pg>141</pg>

the law

(of Maseches Gittin)

that "if she is living with him etc."?

4.

And it will be understood with an introduction the precision in the change of language of the Rambam between the Laws of Divorce and the Laws of Forbidden Relations,

for in the Laws of Divorce he wrote "A man should not marry a woman with the intention of divorcing her",

and in the Laws of Forbidden Relations he wrote "It is forbidden¹⁶

for a man to marry a woman with the intention of divorcing her"¹⁷.

And it stands to reason to say,

that according to the Rambam there are here two different laws,

a law in the Laws of Marriage and Divorce,

and a law in the manner of conduct between a man and his wife,

and it is

(in the Laws of Forbidden Relations)

from the verse "Do not plow with an ox and a donkey together".

And the explanation of this:

The essence and definition of marriage of a man and woman

(as is proper)

is — in the language of the verse¹⁸

"and he shall cleave to his wife and they shall be one flesh",

acquisition and perpetual cleaving,

without any detail that leads and causes cessation

[And the matter of divorce is something that is renewed after the betrothal and marriage,

that weakens and contradicts and even cuts off the bond

("cleave")

this].

But when the acquisition and content of the marriage is in a manner that has in it a detail opposite of "and cleave",

whether at the beginning of the marriage¹⁹

or after some time,

behold this is a deficiency in the essence of the marriage²⁰.

And this is the content of the halacha in the Laws of Divorce: "A person should not marry a woman with the intention to divorce her, and she should not be sitting under him and serving him while he intends to divorce her",

meaning that even though there is no prohibition in this,

nevertheless this is not the matter of "marriage" in its truth according to Torah,

and therefore "a person should not marry etc. and she should not be sitting etc. while he intends to divorce her".

And therefore the Rambam continues in that same halachah: "And a man should not divorce his first wife unless he finds in her a matter of indecency, as it is said, etc., and it is not proper for him to hasten to send away his first wife,"

for the content of these laws is one: the definition of the matter of marriage in itself — "and he shall cleave,"

which does not give place to its opposite

(separation)

at all²¹.

However, there is an additional law — the verse "Do not plot against your fellow harm while he dwells securely with you,"

and it is a prohibition in the conduct of people with one another,

and likewise in the conduct of a man and a woman — that "it is forbidden for a man to marry a woman with the intention of divorcing her."

And therefore the Rambam wrote this law in Hilchot Issurei Biah,

in the chapter where he explains the definitions of the conduct of a man and a woman with one another,

among them

(and likewise regarding their children, etc.).

5.

And it can be said,

that the source of the Rambam is from the two aforementioned statements in the Talmud — the baraisa of R. Elazar b. Yakov in tractate Yevamos and the inquiry of R. Mesharshiya

(and Rava's answer to this)

in tractate Gittin:

In tractate Yevamos, the statement of R. Elazar b. Yakov comes in continuation of several statements regarding forbidden marriages

(due to concerns and pitfalls that can come from this)

—<pg>142</pg>

And these laws, thus the Rambam brought in Hilchos She’achz, in Hilchos Isurei Biah there²²

— And in continuation of this comes the statement regarding the prohibition toward his wife: “A man should not have marital relations with his wife

(woman)

with intent to divorce her, because it is said, ‘Do not plot harm against your neighbor, while he dwells securely with you’”;

But in Gittin it is in continuation of the sugya and the discussion in explaining the dispute of Beis Shammai, Beis Hillel, and Rabbi Akiva: when is it permitted to divorce, for we derive from the verses in the chapter of divorce²³

“And it will be if she does not find favor in his eyes because he found in her a matter of nakedness”; and in continuation of Rava’s answer to Rav Papa’s question: “He found in her neither a matter of nakedness nor a thing, what then?” — “Since the Merciful One revealed regarding the rapist²⁴

he may not send her away all his days, etc., there the Merciful One revealed, but here, what is done is done”

(And afterwards it continues

(in the baraisa of Rabbi Meir)

several opinions

(measures)

regarding the connection of a man and a woman — in relation to divorce).

And apparently, what does it belong within this topic — whose content: when is it permitted to divorce,

and if the divorce is effective — the question of Rav Mesharshiya to Rava: "If his heart is to divorce her and she is sitting under him and serving him, what is [the law]"

(is there a punishment in the matter or not<sup>25</sup>)?

And further: behold it is explicit in the baraisa of Rabbi Eliezer ben Yaakov that a man should not marry a woman with the intention to divorce her because of "Do not plow etc.,"

and what was the doubt to him, to Rav Mesharshiya<sup>26</sup>?

And from this he proved<sup>27</sup>

the Rambam,

that the question of Rav Mesharshiya is whether this is from the essence of the matter of marriage

(and divorce),

and not only a particular prohibition on account of "Do not plow etc.";

And Rava's answer "it is applicable to him 'Do not plow etc.'" — his intention is not that it is forbidden from the aspect of "Do not plow"

(because then it should have said "she should not be sitting..

because of 'Do not plow',"

or "it is forbidden because of 'Do not plow'" and the like),

but rather — that this verse is a revelation of the matter that these are not a proper marriage,

because in such marriages "it is applicable to him 'Do not plow evil against your neighbor when he dwells securely with you'";

And thus the distinction between the baraisa of Rabbi Elazar ben Yaakov in Yevamos and the statement of Rava in Gittin is: In Yevamos the verse "Do not plow evil against your neighbor etc." comes as the source of the law that "a person should not marry a woman with the intention of divorcing her",

and in Gittin it is a revelation of the matter in the definition of marriage according to Torah,

that during the entire time of the marriage the "and he shall cleave to his wife" is complete without the detail of an interruption etc.

And based on this, it is also understood the reason that the Rambam did not bring in Hilchos Gerushin that which "if he informed her beforehand etc. it is permitted" — because the permission in "informed her" is only regarding the prohibition of "Do not plot against your neighbor when he dwells securely with you",

but this does not touch and change in relation to the deficiency in the essence of the definition of marriage

(and divorce)²⁸,

because even when he informs her that his intent is to divorce her,

this detracts from the essence of the matter of marriage

(and divorce)²⁹.

<pg>143</pg>

6.

And it can be said in the inner aspect of the matters:

Man and woman in all their details below,

they are in the likeness of

(and they came and descended from)

"Man and woman" — this is the Holy One, blessed be He

(Man)

and the children of Israel

(Woman),

as explained at length in Song of Songs and in the words of our Sages, may their memory be blessed.

And so it is regarding our subject — marriage of

(and divorce of)

man and woman,

this comes and branches off from the marriage,

so to speak,

that is between the Holy One, blessed be He, and the Congregation of Israel.

And according to the wording of the blessing that is said at the betrothal of each and every one of Israel: "Who sanctifies His people Israel through chuppah and betrothal."

That is to say, their wedding

(betrothal and marriage)

of each and every one of Israel,

this is a detail,

so to speak,

of "Who sanctifies His people Israel,"

from the general "marriage" that is between the Holy One, blessed be He, and His people

(the Congregation of Israel).

And based on this it will be sweetened most what is from the definitions of marriage — that they are in an eternal bond&lt;sup&gt;30&lt;/sup&gt;,

because the marriage of the Holy One, blessed be He, and the Congregation of Israel,

and as it is said&lt;sup&gt;31&lt;/sup&gt;

on the day of His wedding

(of the Holy One, blessed be He, with the children of Israel)

this is the Giving of the Torah,

it is an eternal bond

(that it is impossible that in this&lt;sup&gt;32&lt;/sup&gt;

there be an interruption, heaven forbid).

7.

However,

according to what we have learned regarding the definition of the prohibition of "to marry a woman with intent to divorce her" — that this is

(not only an improper conduct on the part of the man,

but rather)

a deficiency in the essence of marriage — explanation is needed regarding the marriage of the Holy One, blessed be He, and the Congregation of Israel:

It is known,

that the totality of the matter of the exile is analogous to the matter of divorce³³,

and as it is brought in the Midrash "I judged them with divorce"³⁴.

And as it is brought in the Gemara³⁵

"An overwhelming answer the Congregation of Israel answered the prophet etc. A woman whom her husband divorced, does the one have any claim on the other?"; and since the Holy One, blessed be He, knew that there would be the matter of the exile — behold it is found that in this,

so to speak,

is there [an element] of "A man should not marry a woman with the intention of divorcing her"?

Simply, it can be said that it is not applicable to say about this that "his intention is to divorce her",

because the entire matter of the exile is only a result of the conduct of Israel,

and there is in this complete free choice,

and only "because of our sins

(ours)

we were exiled from our land",

and were it not for our sins, there would not have been the divorce at all.

[And even though it is explicit in the Torah&lt;sup&gt;36&lt;/sup&gt;

"When you beget children and children's children and you will have grown old in the land and you will act corruptly etc. and the L-rd will scatter you among the peoples etc.",

that it is said in the language of certainty

(as indeed it will be in actuality),

and the Torah preceded the world&lt;sup&gt;37&lt;/sup&gt;,

so it is found that already at the time of the Giving of the Torah it was, as it were, "in His mind to divorce her" after a time

(when "you will have grown old in the land etc.")

—

This is not a question,

because

(a)

These verses were said after the Giving of the Torah,

in the fortieth year,

and as long as it was not revealed in the speech of the Holy One, blessed be He,&lt;sup&gt;38&lt;/sup&gt;,

a change could still occur in this; and also

(b)

Even if we say that they are considered as "speech",

and even after they were said in actuality,

behold the Rambam wrote&lt;sup&gt;39&lt;/sup&gt;

regarding words of calamity that the prophet says "if his words do not stand, there is no refutation of his prophecy..

that the Holy One, blessed be He, is slow to anger and abundant in kindness and relents from the evil,

and it is possible that they repented and it was forgiven them"].

But still it is not settled completely,

for since after all the Holy One, blessed be He, knew at the time of the Giving of the Torah&lt;pg&gt;144&lt;/pg&gt;

that there would be the matter of exile,

if so, even if you say that it is not in the category of "His knowledge

(and His will)

to divorce her" — because choice was given to man to conduct himself in a manner that there would not be exile

(and this is the will of the Holy One, blessed be He)

— nevertheless,

after all the marriage was not made

(from His side, blessed be He)

in a manner of a permanent bond,

an eternal bond — and thus there is a deficiency, heaven forbid, in the marriage of the Holy One, blessed be He, and Israel?

8.

And the explanation in this:

In the Gemara there³⁵

It continues that the Holy One, blessed be He, answers the Congregation of Israel: "Where is the bill of divorce of your mother which I sent her?"

That is, there was no divorce

("bill of divorce").

And it must be said,

That this which is stated in the Gemara there before this "A decisive answer the Congregation of Israel answered etc. A woman whose husband divorced her etc.",

This is because exile is a matter of divorce

(only)

from the perspective of the Congregation of Israel,

that during the time of exile the children of Israel do not feel the closeness of the Holy One, blessed be He, to them,

and therefore they claim that this is a state of "a woman whose husband divorced her";

But the truth is,

that even during the time of exile the marriage between the Holy One, blessed be He, and the Congregation of Israel was not severed, heaven forbid

(except that it is not seen in a revealed manner).

And on the contrary,

the entire intention of the hiding of the face of the time of exile,

"And I will surely hide My face, says the Lord"⁴⁰,

is only so that there will be "and you will seek from there the Lord your God and you will find when you seek Him with all your heart and with all your soul..

and you will return to the Lord your God and listen to His voice"⁴¹,

through which is revealed a deeper connection of "and cleave",

that even when the children of Israel are scattered among the nations,

they are the wife of the Holy One, blessed be He, and cleave to Him.

And by the children of Israel conducting themselves as a "kosher wife" and showing their devotion to God

(in the fulfillment of Torah and commandments)

behold,

measure for measure,

also the conduct of the Holy One, blessed be He, with Israel is in such a manner,

that

(even)

all the nations see that there is no divorce between the Holy One, blessed be He, and the children of Israel,

and they see clearly the guarding and providence of the Holy One, blessed be He, over Israel,

and He, blessed be He, fulfills all their needs

(her food, her clothing, and her conjugal rights⁴²)

in a manner that even in

(the end)

of the time of exile there is "abundant goodness for the house of Israel"⁴³

literally,

And they go immediately and at once to the true and complete redemption,

that then there will be in revelation the completeness of the marriage between the Holy One, blessed be He, and the Congregation of Israel, "And it shall be on that day, says the Lord, you will call Me 'my husband' and you will no longer call Me 'my master'"⁴⁴,

with the coming of our righteous Mashiach, truly immediately.

(From the talks of Shabbat Parshat Korach 5745,

Lag BaOmer 5746)