Page 94 - EFI-RAV ZILBERSTIN_VOL 8.EFI-RAV ZILBERSTIN_VOL 8.1A

Pg: 94 - 3-Back 21-10-31

hibition [e.g. she is a mamzeres etc.] according to Rav Huna he must
give her a get and must pay her Kesuvah. The Noda B’yehudah (Even
Ha’ezer, Tinyana, 80) writes that even according to Rav Yehudah
(ibid.) in whose opinion she is not paid her Kesuvah if he did not
know that she was prohibited to him by Torah law, the marriage is
still not invalidated. In regard to marriages prohibited by a positive
Torah command it is clear from the Rambam (Hilchos Ishus 24,4)
that even though he did not know that she was forbidden to him,
she still receives her Kesuvah. The Noda B’yehudah wonders why a
marriage contracted under a false understanding should differ from
a sale conducted under a false understanding, for if a person bought
meat which turns out to be forbidden to eat [even if its prohibition
is only rabbinic] the sale is null, as explained in the Shulchan Aruch
(Choshen Mishpat, 234), whereas when it comes to marriages forbid-
den by Torah law, the marriage is not rendered void even when it was
contracted erroneously.

We must draw a distinction between a purchase that turns out to
be forbidden and a spouse who turns out to be forbidden in marriage.
In the case of a cut of meat the buyer has no interest in this or that
particular piece, so if the piece he bought turns out to be forbidden
the sale is void because for his money he could have bought another
piece that is kosher. This is not the case with marriage which is “as
difficult as splitting the Red Sea” and when a groom finally finds a
bride with the virtues he seeks and the bride finds a groom whom she
finds pleasing, their joy is great and they will not agree to break up
for any reason at all save for some major, obvious defect under which
circumstances they would not be willing to uphold their marriage.
Marriages prohibited by a positive or negative Torah command are
therefore not subject to the halachah that renders erroneous trans-
actions void.

This is why, concludes the Kehillas Yaakov, there is no deception
in the son of a non-Jewish father and a Jewish mother not revealing
his identity and marrying a Jewish woman, because although no Jew-
ish daughter would consent to marry the son of a non-Jew, after the
fact, once they are married him and have bonded to one another in

78 1 Medical-Halachic Responsa of Rav Zilberstein