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Kesuvos, 26

26b

QUESTIONS: The Mishnah states that a woman who was "Nechbeshah," jailed, for monetary reasons is permitted to live with her husband afterwards, but if she was "Nechbeshah" for the death penalty, she is prohibited to her husband if she is released. Rashi and Tosfos explain that when she was jailed for monetary reasons, she is permitted to her husband even if he is a Kohen, because the captors are afraid to do anything to her lest they lose their money. When she was jailed for the death penalty, though, the captors treat her like Hefker and we fear that she willingly had relations with them, and thus she is prohibited to return to her husband even if he is a Yisrael.

(a) The Mishnah earlier (22a), however, states that a woman who was captured ("Shevuyah") is prohibited to return to her husband only if he is a Kohen, because we are only afraid that she might have been raped. Why, in the case of a "Shevuyah," are we concerned only that she was raped (and therefore Asurah only to a Kohen), while in the case of "Nechbeshah" we assume that either *nothing* happened, or that she had relations with her captors *willingly*?

(b) In the Gemara, Rav Shmuel bar Rav Yitzchak says in the name of Rav that when a woman was "Nechbeshah" for monetary reasons she is permitted to return to her husband only when the power of the Jewish authority is dominant over the Nochrim. When, however, the power of the Nochrim is dominant, the woman is prohibited to her husband (see Tosfos, DH Al Yedei Mamon, who says that she is prohibited only if her husband is a Kohen).

If the reason why she is permitted to return to her husband is because the captors are afraid that they will lose their money if they mistreat her, then why does this reason apply when the Jewish authority is dominant over them? The Jews could simply have her freed without giving in to their demands, and thus the captors have nothing to lose if they rape her, since they will not get their money anyway!

ANSWERS:

(a) Tosfos explains that only when she was "Nechbeshah" for the death penalty is there reason to be concerned that she has relations with her captors willingly -- for by doing so, she thinks that she might save herself from imminent death. When she was "Nechbeshah" for monetary reasons, though, and when she was kidnapped ("Shevuyah"), there is no threat to her life and therefore there is no concern that she willingly has relations with her captors.

This view of Tosfos is disputed by RABEINU CHANANEL (see TOSFOS RID) and the RAMBAM (Hilchos Isurei Bi'ah 18:30), who equate "Nechbeshah" with "Shevuyah" and hold that even when she was "Nechbeshah" for the death penalty, she is only prohibited to her husband if he is a Kohen. When she was "Nechbeshah" for monetary reasons, and the Jews are in control, she is permitted to her husband as explained above.

(b) RASHI in Avodah Zarah (23a) explains that the case of a woman who was "Nechbeshah" for monetary reasons refers to when she owes them money, and they captured her in order to force her to repay her debt. Since they have a *legal right* to the money, it is assumed that the Jews would make her pay them back even though the Jews are in control. Hence, only if they mistreat her would they lose their claim to the money, and therefore we can be certain that nothing was done to her.

This is true only when the Jews are dominant over the Nochrim. When the Jews are not in control, though, the captors are not afraid of losing their money if they mistreat her, and thus we must be concerned that she was raped.

QUESTION: The Mishnah states that a woman who was "Nechbeshah," jailed, for monetary reasons is permitted to return to her husband, but if she was "Nechbeshah" for the death penalty, she is prohibited to return to her husband if she is released. Rashi and Tosfos explain that when she was jailed for monetary reasons, she is permitted to her husband even if he is a Kohen, because the captors are afraid to do anything to her lest they lose their money. When she was jailed for the death penalty, though, the captors treat her like Hefker and we fear that she willingly had relations with them (in order to save her life), and thus she is prohibited to return to her husband even if he is a Yisrael.

What is the Halachah in a case where neither reason exists, where the captors are not demanding any money, and where her life is not in danger?

ANSWER: The Gemara in Avodah Zarah (23a) concludes that she is permitted to return to her husband only when the captors fear losing their money if they mistreat her. If they have no fear of losing money, then we must be concerned that she was raped.

According to this logic, it is possible that the wife of a Kohen who secluded herself (i.e. Yichud) with a Nochri should be prohibited to return to her husband.

The REMA in Even ha'Ezer (7:11) explains that although Yichud is always prohibited, if a woman transgressed and secluded herself with a Nochri, she is permitted to her husband and we cannot learn from the case of "Nechbeshah" that she is prohibited, because in the case of "Nechbeshah," th e captor is in complete control and the woman cannot cry out for help and be saved, and thus we must assume that she was raped. When she secluded herself in a room with a Nochri, though, she can cry out for help, and thus we do not assume that she was raped.

(The BEIS SHMUEL there, #33, quotes a MORDECHAI who says that whenever there is Yichud for an extended period of time, the woman indeed becomes prohibited to her husband.)