THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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YEVAMOS 46-65 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
1) CHILDLESS, OUTSIDE OF ISRAEL
QUESTION: The Mishnah states that if a man and woman are married for ten
years without having children, he should divorce her and marry another woman
in order to fulfill the Mitzvah of Piryah v'Rivyah. The Gemara derives the
ten-year period from Avraham Avinu, who took a second wife after ten years.
The Gemara points out that he married his second wife ten years after
arriving in Eretz Yisrael; he was actually married to Sarah Imeinu for more
than ten years when he took a second wife. The Gemara says that those years
are not counted because Avraham Avinu was in Chutz la'Aretz during those
years, and thus perhaps it was the fault of living in Chutz la'Aretz that
caused him not to have children.
Does this mean that anyone who is in Chutz la'Aretz has no grounds on which
to divorce his wife if they do not have children for ten years, and it is
assumed that it is the fault of living in Chutz la'Aretz that prevents them
from having children? We see that many people in Chutz la'Aretz do have
children, so how can it be that living in Chutz la'Aretz causes a particular
couple not to have children?
(a) The RASHBA cites RASHI (to Bereishis 16:3) who explains that the reason
Avraham Avinu had to wait ten years after coming to Eretz Yisrael is because
Hashem only promised him, "I will make you a great nation," after Avraham
fulfilled the commandment to go to Eretz Yisrael ("Lech Lecha..."). Hence, it
was only Avraham Avinu for whom the years of living in Chutz la'Aretz did not
count. Avraham was physically unable to have children, and Hashem promised
him that his nature would change and he would have children only after coming
to Eretz Yisrael. Therefore, there was no point in counting the years during
which he lived in Chutz la'Aretz. Those years did not count because he was
physically unable to have children there, and not because of the misdeed of
living in Chutz la'Aretz.
(b) The ROSH (6:12) explains that we find that Avraham was in Eretz Yisrael
at the time of Bris Bein ha'Besarim, when he was 70 years old (as Rashi says
in Shemos 12:40). At the time that he moved to Eretz Yisrael with his family,
however, he was 75 years old (Rashi, Bereishis 12:4). How could he be
traveling to Eretz Yisrael when he was 75 if he was already there when he was
70? The answer is that Avraham made a "pilot trip" at age 70, without the
rest of his family. Five years later he returned with his family in
fulfillment of Hashem's command to him. Hence, we find that Avraham delayed
the fulfillment of Hashem's command for five years, and that is why he did
not merit to have a child in Chutz la'Aretz. He was punished for staying in
Chutz la'Aretz because of his delaying of Hashem's specific command to him to
go to Eretz Yisrael. Other people, though, do not have such a specific
command, and thus they do count the years that they live in Chutz la'Aretz
towards the ten years of marriage with no children.
In addition, the ROSH and RA'AVAD (cited by the RASHBA) point out that after
his first trip, Avraham left Eretz Yisrael to go to Chutz la'Aretz. *Leaving*
Eretz Yisrael to go to Chutz la'Aretz is considered a misdeed that can cause
a person not to have children, and that is why Avraham did not count the
years that he lived in Chutz la'Aretz. In contrast, one who always lived in
Chutz la'Aretz and who did not leave Eretz Yisrael to go there is not held
accountable and does count the years that he lives in Chutz la'Aretz,
(c) The RAMBAN explains that perhaps a person is required to divorce and
remarry after ten years in Chutz la'Aretz. However, if he goes to Eretz
Yisrael after ten years the count starts anew, because perhaps the *Zechus*
of Eretz Yisrael will enable him to have children (and not that the *sin* of
living in Chutz la'Aretz prevents him from having children).
(d) The HAGAHOS MAIMONIYOS (Hilchos Ishus 15:4) cites a number of Rishonim
(Tosfos, Semag, Ra'avyah) who indeed say that a person in Chutz la'Aretz
cannot be forced to divorce his wife, because it might be the sin of Chutz
la'Aretz that is preventing him from having children, and thus it will not
help to marry another wife. That this Halachah applies to anyone living in
Chutz la'Aretz is also implied by Rashi (DH Miketz) in our Sugya. (For the
current day practice regarding this matter, see next Insight.)
2) HALACHAH: GETTING DIVORCED AFTER TEN YEARS OF CHILDLESSNESS
OPINIONS: The Gemara concludes that even nowadays, the law of the Mishnah
remains in force. If a couple have not had children after being married for a
full ten years, then they should get divorced and the man should marry a new
wife in order to have children.
Does this Halachah require that Beis Din force a man to divorce his wife
after ten years, or is it merely an obligation upon the husband himself to
divorce her on his own accord, and Beis Din does not get involved? This
question is debated among the Amora'im in Kesuvos (77a) and it is also the
topic of discussion among the Rishonim in our Sugya.
(a) RASHI (65b, DH Hu and DH Hi) says that Beis Din forces a man to divorce
his wife. This is also the ruling of the RIF and the RAMBAM (Hilchos Ishus
15:7). They write that Beis Din forces him to divorce her, even if it means
that they must use physical force, in order to have him fulfill the Mitzvah
of Piryah v'Rivyah. (The ROSH (6:15-16) adds that this means that Beis Din
also forces him to marry another wife; otherwise there would be no point in
divorcing the first one. Similarly, he adds, Beis Din is enjoined to force,
at a certain point, a bachelor who refuses to get married.)
(b) TOSFOS (DH Yotzi) and RABEINU CHANANEL rule, based on the YERUSHALMI
(Kesuvos 11:7), that Beis Din does not force the man to divorce his wife.
Rather, Beis Din tells him that he is obligated to divorce his wife and that
if he does not, it will be permitted to call him a sinner.
(a) As far as *who* is enjoined to remarry after ten years:
1. The Poskim cite the YERUSHALMI which states that the Halachah of our Sugya
applies not only to someone who did not have children or who had stillborns,
but even to a person who had children who died and he no longer has any
living children (or grandchildren) -- he must divorce his wife if ten years
go by and they do not have any more children.
(b) As far as the actual current practice on this issue:
2. The Mishnah says that this applies if ten years pass "without giving
birth." The RAMBAN and other Rishonim infer from here that if a man's wife
bore him a single child, he does not have to divorce her (even though he has
not fulfilled the Mitzvah of Piryah v'Rivyah with the birth of but a single
child). The REMA cites this ruling. The PISCHEI TESHUVAH adds, quoting the
ME'IL TZEDAKAH (#93), that even if the wife is no longer capable of having
children and they will never have a second child, Beis Din still does not
force him to marry another wife.
1. The SHULCHAN ARUCH (EH 154:10) cites the RIF and the RAMBAM who rule that
Beis Din forces the man to get divorced after ten years. However, others
limit, or entirely do away with, this practice for a number of reasons:
2. A number of Rishonim (RASHI, HAGAHOS MAIMONI; see previous Insight) rule
that this applies only in Eretz Yisrael and not in Chutz la'Aretz.
3. The Hagahos Maimoni (Hilchos Ishus 15:4) adds in the name of the AVI'ASAF
that nowadays, even in Eretz Yisrael Beis Din does not force a person to
divorce after ten years, because the Gemara in Bava Basra (60b) states that
the Chachamim wanted to make a Gezeirah prohibiting marriage from the time
that the nations started persecuting the Jewish people, on the grounds that
it is better for us to refrain from having children and cause our own end
than for our enemies to destroy us, but the Chachamim could not make such a
stringent Gezeirah on the people. Nevertheless, the proposition of such a
Gezeirah teaches us that it is enough that Beis Din not force a person to
fulfill the Mitzvah of Piryah v'Rivyah.
4.The REMA (EH 154:10) concludes that nowadays, it is not the practice of
Beis Din to use force (in such matters of Ishus in general).
Regarding whether the person himself should divorce his wife l'Chatchilah,
even though Beis Din does not force him to, the PISCHEI TESHUVAH cites the
SEFER BIGDEI KEHUNAH (#1) who rules that if a man's wife is a G-d-fearing
woman and they are happily married, then they may remain married even
l'Chatchilah, because of the opinions which maintain that in Chutz la'Aretz
one does not need to divorce his wife, and because of the logic that one can
never know for sure that the source of the problem is not his own inability
to have children (and thus divorcing her and marrying someone else will not
help). Therefore, he should remain with his wife.
This has been seen to be the practice of many great Talmidei Chachamim who,
Rachmana Litzlan, did not have children, as mentioned by RAV MOSHE STERNBUCH,
shlit'a, in TESHUVOS V'HANHAGOS (1:790). Rav Sternbuch adds that even if the
couple are living in Eretz Yisrael, nowadays we are all so sullied with sin
that we cannot be sure that it is not one's sins causing him not to have
children. (In his Teshuvah, Rav Sternbuch describes some interesting Segulos
that he recommends for couples trying to have children.)