Friday, January 29, 2010

Divorce in the Back of His Mind

The Gemora relates a story about a man that was told that his wife can't smell. Rashbam quotes a Gemora in Kesuvos regarding a man that was mekadesh a woman on the assumption that she has no mum (blemishes, or deficiencies) and finds out once they are married that she does, he can claim that it is a mekach ta’us (a mistaken purchase) and she leaves the marriage without a kesuvah. This only applies to a mum that is hidden (i.e. it was not noticeable before they got engaged), for example, she can’t smell. The Gemora continues: The man decides to test her. He takes her into a secluded place and hidden in his pocket is a radish. He remarks to her that he smells radishes from nearby Galilee. The point of this was to test her response, and from that he’ll be able to discern if she could really smell or not. His wife immediately understood what this whole charade was about, and jokingly replied that she can smell the dates (which in those days was eaten together with radishes). The man realized that she can smell after all, and was about to apologize, but calamity struck and the room that they were in collapsed on her, and she died.

The question is: Can the husband inherit his wife’s property? The Gemora rules that “since he only went into the secluded place to test her, he may not inherit her property.” The Rashbam explains that since the husband tested her to see if she can smell, and although she was able to, in the back of the husband’s mind, he was about to divorce her if she had a mum. Therefore the status of imminent divorce stays, until he clearly has no intention of divorcing her. The Rashbam logically applies this to any case where the husband had an argument with his wife and has in mind to divorce her, if she dies when he is still in that mindset, then he cannot inherit her. He brings proof from a Gemora in Gittin which states that once a husband intends to divorce his wife, as long as he still has that mindset, he cannot continue to eat her fruits (a husband has a right to eat the fruits of his wife’s field or property).

Tosfos explains that the Gemora is talking about a man that was not married to the woman, rather he was engaged. Understandably, the Rashbam’s premise that a husband loses his right to inherit his wife if she died while he had in mind to divorce her, has no basis from this Gemora. Tosfos also disproves the Rashbam’s proof from the Gemora in Gittin.

The Rema (Even Ha’ezer Siman 90 Seif 5) rules that as long as a man did not actually divorce his wife, even if he intended to do so, he inherits her property. This is the opinion of Tosfos.

There is a rule in the halachos of mourning that we go after the lenient opinion. Therefore although we don’t follow the opinion of the Rashbam in regards to inheritance, there are Poskim (Chochmas Shlomo cites Yam Shel Shlomo, Pischei Tshuva cites a Yeshous Yaakov that records that this was the Maharal’s view), that maintain in the above scenario, where the husband had in mind to divorce his wife, he is not considered a mourner.