This schtikel Torah is dedicated to R' Moshe Gold and Rivka Spero who are getting married TODAY [מדין ודאי...]!!
May Hashem bless them with a binyan adei ad and limitless shefa bracha ruchani and gashmi!!!:-)
A story that occurred in Pre-War Europe. : A certain man married a woman who claimed to be divorced but it turned out that her get might or might not have actually been given by her first husband. So he decides that he wants out but she refuses to accept a get from him [the second husband] unless he gives her an exorbitant sum that he doesn't have [this extortion for a get is an alte myseh - not an invention of the 21st century]. So now he wants to marry another woman without giving this first woman a get. Is he permitted?
This is complex issue was brought to the Malach Hashem Rav Aryeh Tzvi Fromer [The Kojiklover Gaon] in his Eretz Tzvi [1/124].
We can say that since the cherem d'rabbeinu Gershom against taking a second wife is only dirabanan, we should be leninent and assume that this woman's second marriage never took place because she was still married to the first man and allow him to get married assuming that his new wife will be his only wife.
LET HIM MARRY!
But wait! Let us look at her [chas vi-shalom, not literally!:-)] She is safek married to the second man and since it is a safek di-oraisa, we can apply that safek to the man as well and forbid him from marrying a second wife. The Ran [תשובות סי' נ"א] has a question where a man quarelled with his wife and took a neder that he would not be in town for Shabbos and now he wants to be mattir the neder. One may only be mattir a neder after it takes effect. May he be mattir the neder during the time period when it is SAFEK Shabbos?? The Ran says that if safek di-oraisa li-chumra then we say that the neder has DEFINITELY taken effect during the period of safek - ספק כודאי - because for us it doesn't matter what the objective truth is [whether or not it is really Shabbos]. What matters is that WE must be machmir and therefore it is considered that the neder took effect. So we can say the same thing about this woman. As far as we are concerned, she is a ודאי אשת איש to the second man and he may not take another wife.
Hold on!! Who says that we should look at her [anyway - one shouldn't be looking at women] and view this situation as a safek di-oraisa. Maybe we should focus on the man who only has a safek dirabanan. Even if she was married to him and not to the first man - taking another wife is only dirabanan [because of the cherem d'rabbeinu Gershom]. So let us be lenient and assume that she wasn't married to him in the first place because her first husband's get wasn't valid.
The Mishna [Yevamos 30] says that if a woman who is an ervah to the yavam had safek kiddushin and then her husband died, all of her co-wives have to perform chalitza but may not do yibum. Why don't we say like the Ran that safek di-oraisa li-chumra and the ספק is like ודאי and she was defintiely married to this man and all of her co-wives need not even perform chalitza?! We see that with regard to an אשת איש we don't employ this svara. The reason is because we view her kiddushin to her husband independently and not vis-a-vis the world - are they considered married or not? The answer is that she is NOT! She must receive kiddushin again in order not to be considered a פנויה who is forbidden from the pasuk of לא תהיה קדשה מבנות ישראל. Since we assume that she is not married to her husband the co-wives must perform chalitza because their safek co-wife is not considered an ervah to their yavam.
Back to our case. What would the din be if this man took another wife who is related to his safek wife? We would have to be machmir and assume that he is married to her and disallow the second marriage. So we have contradictory factors at play. Looking at his status we assume that he is NOT married to her because all he has at stake is a safek dirabanan of cherem dr"g. Looking at a potential marriage to a relative of hers we would have to say that he IS married to her because there is a safek di-oraisa at stake of marrying a forbidden relative. So how can we say that his safek marriage is a ודאי when is would yield contradictory psaks of "you are and are not married"??! [See Chullin Tosfos 9b where there is a precedent to the notion that in a case of contradictory psaks, we can't say that ספק כודאי.]
So it is but a safek and only a dirbanan one at that [as far as the man is concerned] so LET THEM MARRY!
HOMEWORK!
There is a lot more to say but this will suffice for now.... Please think about it and suggest various צדדים לכאן ולכאן!
