Friday, July 27, 2012

Withholding Information in Shidduchim, Part 1

The Gemara (Yevamos 45) discusses whether the child of a non-Jewish man and a Jewish woman is a mamzer or is not a mamzer.  Rav Yehuda said he is not a mamzer, but he advised such a person to go to a different place where he was not known to marry a bas Yisrael.  The implication is that people would not want their daughter to marry him, even if he is not a mamzer.

This Gemara serves as a springboard, in recent Achronim, to a discussion of disclosing information for shidduchim, where people would not want to marry a person due to a defect - in yichus or medical - even if there is not a hlachik problem in marrying that person.

Shearim Hametzuyanim B'Halacha, Yevamos 45a s.v. A"L zil itmar...

Rashi explains 'go to a place where they don't know you and marry a bas yisrael, because if they know you they wouldn't let you marry [a bas yisrael].'  In Shearim Hametzuyanim B'Halacha, Hilchos Onaah 62:1 we discussed if one is selling [food] that is not kosher according to all opinions, there is a dispute if one may sell since the merchant follows the opinion of those who permit this food, or because a buyer is strict, if the merchant must inform him of the status of this food.  Even if the food is permitted in a case of great loss according to all authorities, if the merchant must inform him because in this case it is not a great loss for the prospective buyer [and hence he is strict and cannot use this food], and we discussed that in great detail.

We brought the opinion of Chasam Sofer (Responsa, O"C 65) that the merchant must inform the customer, and if he did not it may be a "mekach ta'us" (faulty sale).  Pri Megadim (O"C 467:25) says if there is a strict opinion but the halacha does not rule according to that opinion, the buyer cannot complain that his practice is personally strict, and the merchant is not required to refund the money.  Shach (YD 119:20) brings from Teshuvas Maharalbach where one person is a guest in another's home, and the guest acts strictly in certain matters, when the host must inform the guest of the lenient issues, and when he does not.  And see what we wrote on Sukkah 10b s.v. agninhu.

From our Gemara, we can point out that Rashi (Shabbos 49b s.v. lemitzvah) explains that  if someone buys something for a mitzvah, because he wants to do the mitzvah in the best possible manner.  Therefore, in shidduchim, no one would want to marry someone who has any question about their lineage (yuchsin).  If so, how could Rav Yehuda advise the man to go to a place where he [and his defect] were unknown to marry a woman from that place?  I saw Kunteros Kehillas Yaakov (38) asks from this Gemara.

Another issue requires clarification, for in Bava Metzia (68b) Rava says: Rav Ilish is a great man, and he would not  have allowed others to partaken in forbidden items [in that case, benefitting from interest/usury].  Why does the fact that Rav Ilish was a great man shows it could not have  been done, for every man is prohibited from presenting a stumbling block to another person (lifnei iver)?  Rashba (Responsa, 938) explains that this was not actually forbidden, but it was a matter about shich some people are strict.  Therefore the reason that "Rav Ilish was a great man" tells us he was strict not to give these types of things to others, [lest they treat it strictly].  [Shasdaf's note: it's not clear if another person would be allowed to give this type of merchandise without informing of the possibility that some are strict about it, or that one may if they infrom, but Rav Ilish was so strict he wouldn't even sell it or give it with a disclaimer.]

We can say that since for shidduchim both sides investigate about the prospective bride and groom, it is upon them to check and ask according to their custom.  And see Radvaz (Responsa, V:1587 leshonos HaRambam) who proves from our Gemara that only for Biblical prohibitions are we forbidden to place a stumbling block before another person, but for Rabbinic prohibitions we are not forbidden to place a stumbling block.  Only Rav Ilish who was a great man, was careful not to place a stumbling block even for a Rabbinic matter.  This opinion is questionable, because Tosfos (Avodah Zarah 22a s.v. Tepok) explicitly writes that the prohibition of lifnei iver applies to Rabbinic prohibitions.  However, Tosfos (Chagiga 18a s.v. cholo) implies to the contrary.  Then I saw Minchas Chinuch (232) has a long discussion about this.

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