This is Ri’s opinion, but Rabbeinu Tam says (33a end of s.v. v’afkinu) in such a situation [where the get is being annulled in order to retroactively annul the marriage] we do not say that the kiddushin are uprooted/annulled. If so this case is not like nazir who can ask [a chacham] to annul his vow of nezirus. And to Ri the matter depends on the machlokes Rashi- Tosfos in Brachos.
It seems that the Rama paskens like Tosfos, because a kohen in a house that has corpse in it and he stays and does not leave is considered doing an action (and not passive) because he actively waits in the house, similar to the gemara considering one who does not remove shatnez doing an action, even though he is already wearing it, not removing it is considered an action. See Tosfos Makkos 21b s.v. afilu tha the kohen staying in the house with a corpse is no different than one keeping shatnez on his body and might be worse than keeping shatnez on, and both are considered actions, so how does Rama Y”D 372:1 pasken that an unclothed kohen who is sleeping under the same roof as a corpse, we don’t tell him about the corpse (i.e.. that he must leave) until he gets dressed, but remaining is called an action! And to Rashi even a kohen may not become tamei in a kum v’aseh bcause of k”h! So Rama certainly paskens like Tosfos that Kohen and nazir are allowed to become tamei [for meis mitzvah]; Nazir because his vow can be annulled, and Kohen because it’s not prohibited for everyone. However, Rama really paskens like Rashi because if he held like Tosfos, how can can Rama pasken if they told him [of the corpse] he may not remain there, even if he is unclothed. But Tosfos allows him to become tamei intentionally because of k”h and there is no situation more degrading than running outside unclothed! So Rama must pasken like Rashi, and that which we originally said he’s like Tosfos, we must say he follows his opinion in Siman 303 like Rosh that by shatnez if the wearer is unaware we don’t tell him (or, here the kohen is sleeping, so it’s even more unintention than shogeg – Ed.).
I also feel even to Ri that we can uproot the marriage, we would not be lenient here (our case of the adulteress) like we are in other matters because it is more strict than other prohibitions, and it’s like a chiyuv kareis. Because regular lav does not push off yibum and midioraissa has yibum, only there is a rabbinic gzeira that the first biah is forbidden lest they do a second biah (which is not for a mitzvah) and therefore they do chalitza as we find in Yevamos 20a-b, but an adulteress who is forbidden to her husband exempts her co-wife (tzarah) from chalitza and yibum, and she is like a full ervah (forbidden relationship). Yet regular lavim, they are forbidden to their husband but permitted to their yavam (husband’s brother), so we see this sin is stricter, and if those cases aren’t pushed aside for k”h, neither is this case. Especially that to Rambam he must inform the husband [of the infidelity] just like you see someone wearing shatnez in the marketplace, even though the wearer is unintentional (shogeg), you must remove it from him!
Yet I still have a reason to say to Rambam we should not tell because of k”h. By someone wearing shatnez, many people can see him wearing shatnez and not know he is shogeg, so it’s a big chilul hashem. But here there is no chilul hashem (because nobody knows of the affair) even to do an action we say k”h pushes off an aveira….But I reject this thesis, because Rav Yehuda will consider the aveira chilul hashem, whether many people see (or are aware of) the aveira or not….Even Rosh will agree because in discussing the person wearing shatnez he says the opinion in Yerushalmi that does not require us to remove Shatnez says “k”h pushes off a mitzvah for one hour.” That only allows him to keep the shatnez on until he returns home from the market. But in our case the man will remain married to his wife for a long time, even Rosh will agree the man must inform the husband of her actions…And you might push off this diyuk I made, because perhaps the Rosh is only talking about a case where the person was wearing shatnez is meizid for that hour (when he realizes it’s shatnez until he returns home) but when it is shogeg we allow k”h even for a long time (and here the husband is shogeg). I have two responses to that line of reasoning: One, chazal only let k”h push something off for a short time, not indefinitely....
(to be continued)