-3

Moses Maimonides in the Mishneh Torah, Sefer Nashim, Hilchot Ishut 15:7 states that:

"A man should not marry a barren women, an elderly woman, an aylonit or a minor who is not fit to bear a child"

Now, on what basis does Maimonides say that one cannot marry an elderly woman? The Torah and Halakhah do not contain any prohibition in this regard.

ElonMusk
  • 471
  • 1
  • 13
Ootsutsuki
  • 345
  • 1
  • 7
  • 4
    Rambam is Halacha. The prohibition is based on the obligation to be fruitful and multiply. One who already has children may marry the women listed. – shmosel Dec 13 '23 at 23:27
  • 1
    Did you see the words "should not marry"? See the other comment and answers for why this is a bad idea, even though it's not forbidden. – Ethan Leonard Dec 15 '23 at 00:47
  • You hit the point. It is not prohibited, although it is not recommended. – Ootsutsuki Dec 15 '23 at 14:43
  • @EthanLeonard The fact that one who refuses to divorce a barren woman is liable to be beaten implies it's forbidden to stay married, at least according to the Rambam. – shmosel Dec 17 '23 at 05:21
  • That's actually a slightly different scenario. That's only if Beis Din has ruled that he must divorce her in the first place, which they only do if she asks for a divorce. In that situation, it actually doesn't depend on the circumstances that led to them ruling for divorce: he could be coerced just for refusing their request, even if she wasn't barren. @shmosel – Ethan Leonard Dec 17 '23 at 14:11
  • @EthanLeonard Halacha 7 says if he's married to someone who doesn't have children for ten years, he should divorce her on pain of a beating. It's not about her request; it's about his obligation. – shmosel Dec 17 '23 at 18:52
  • @shmosel again, that's something that Beis Din would tell him. And it doesn't mean that if a woman didn't have children for ten years with a previous husband that a man can't marry her (in our case, this is talking about marrying a barren woman). Rather, that case is talking about if she didn't have children with him for ten years, that he should divorce her. But the point is that the forced divorce is actually applicable to any time that Beis Din deems it necessary, (which as I mentioned, includes her not liking him) ; it doesn't mean such a woman can't be married from the outset. – Ethan Leonard Dec 17 '23 at 18:59
  • @EthanLeonard It's the only case where Beis Din has to intervene because in the others he wouldn't have been allowed to get married in the first place. But the underlying rationale is the same: he's obligated to marry a childbearing woman. – shmosel Dec 17 '23 at 19:12
  • @EthanLeonard To the extent that a barren woman married in violation of that halacha is ineligible for the Sotah procedure, per MT Sotah 2:9-10. – shmosel Jan 05 '24 at 06:23
  • @shmosel that's not because he's forbidden to marry her though. You keep saying this over and over, but it wasn't true the first time and none of the subsequent proofs are logical. – Ethan Leonard Jan 05 '24 at 20:23
  • @EthanLeonard I'm not sure why you think so. Rashi on Sotah 24a makes it crystal clear: ושאינה ראויה לילד... אסורות לקיימה למי שאין לו בנים שהרי נצטוו ישראל על פריה ורביה – shmosel Jan 05 '24 at 20:51

3 Answers3

5

You have cut off the quote half-way and this is not the way to learn Torah.

The Rambam writes

A man should not marry a barren women, an elderly woman, an aylonit or a minor who is not fit to bear a child unless he has already fulfilled the mitzvah of being fruitful and multiplying, or he has another wife with whom he can father children.

The latter half of the sentence answers your question since one primary goal of marriage is having children (a Torah commandment). As you see this Rambam is based on Torah.

mbloch
  • 51,726
  • 9
  • 92
  • 240
2

While the Rambam does not regularly list his sources, he bases himself on sources. The many commentaries on the Rambam do discuss his sources. A good approach could be to learn Mishneh Torah from a book with such commentaries, or on Sefaria, where you can click on a passage and then read what the commentaries have to say.

In this case, I will skip the commentaries and instead show Rambam aligned with Rif on Yevamot and with Yevamot 61b.

enter image description here

See how each of his phrases match an idea in the Mishnah and gemara, and then while a slight logical leap may be involved, it is not as great a leap as you might think. Rambam's continuation with שָׁהֲתָה עֶשֶׂר שָׁנִים וְלֹא יָלְדָה similarly matches Rif's highlight of points in the gemara.

Also, as mblock wrote in his answer, you left out the end of the quote, "unless he has already fulfilled the mitzvah of being fruitful and multiplying, or he has another wife with whom he can father children."

The Mishnah there writes:

מַתְנִי׳ לֹא יִבָּטֵל אָדָם מִפְּרִיָּה וּרְבִיָּה אֶלָּא אִם כֵּן יֵשׁ לוֹ בָּנִים. בֵּית שַׁמַּאי אוֹמְרִים: שְׁנֵי זְכָרִים, וּבֵית הִלֵּל אוֹמְרִים: זָכָר וּנְקֵבָה, שֶׁנֶּאֱמַר: ״זָכָר וּנְקֵבָה בְּרָאָם״.

MISHNA: A man may not neglect the mitzva to be fruitful and multiply unless he already has children. Beit Shammai say: One fulfills this mitzva with two males, and Beit Hillel say: A male and a female, as it is stated: “Male and female He created them” (Genesis 5:2).

See how the gemara takes it from there.

So, if a man doesn't have a children yet, and will only be practically marrying one wife, if she is old he is effectively neglecting such a mitzvah.

I understand from your posting an answer to your own question shortly thereafter that the question was likely placed so that you could establish your answer, about how other authorities disagree - though I am not sure that they do disagree. But yes, there are often several ways of interpreting underlying sources. Thus, there is a logical leap. But that doesn't mean that the Rambam stands with no basis in "Torah and Halachah".

Also, I'm not sure your answer even contradicts what the Rambam wrote. When you cited Rabbi Touger that "The Ramah (loc. cit.:5) and other authorities, however, differ and explain that as long as relations are carried out in an ordinary manner, having relations ... does not violate this prohibition.", the preceding sentence was "From the Shulchan Aruch (Even HaEzer 23:1), one can infer that sexual relations ... are considered as emitting wasted seed, one of the more severe prohibitions of the Torah." That is, the Rama is arguing with the inference made by Rav Yosef Karo in Shulchan Aruch (about spilling seed), not arguing with anything that the Rambam wrote in Hilchot Ishut (about that one shouldn't marry because he'll be thereby neglecting the precept of having children).

josh waxman
  • 20,700
  • 44
  • 86
-6

Many authorities do not agree with many of its provisions.

For example, on the issue of an aylonit, including a minor.

Rabbi Touger, in commentary on Ishut 15:7 writes:

«The Ramah and other authorities, however, differ and explain that as long as relations are carried out in an ordinary manner, having relations with a minor or an aylonit does not violate this prohibition.»

I think the same goes for an older woman.

I quote David Michael Feldman, Birth Control in Jewish Law: Marital Relations, Contraception, and Abortion as Set Forth in the Classic Texts of Jewish Law, Jason Aronson, Lanham, 1998, p. 68:

«For the halakhic tradition, the axiom was best formulated by Nimmukei Yosef, the early fifteenth-century Commentary to R. Isaac Al Fasi's Code: "It follows from here and from all discussions elsewhere that inter-course with a woman incapable at all of child-bearing is permissible, and the prohibition of hash-hatat zera is not involved so long as the intercourse is in the manner of procreation; for the Rabbis have in every case permitted marriage with women too young or too old for childbearing. No prohibition is involved with a barren or sterile woman, except that the mitzvah of procreation is not thus being fulfilled." And so is it codified by Isserles in the Shulhan Arukh, in the very section in which hash-hatat zera is treated. But, since the Talmud and Codes not only permit but enjoin marriage upon every man, including those situations where childbearing is impossible," the permissibility of consciously non-procreative intercourse is taken for granted.»

I agree with him.

Ootsutsuki
  • 345
  • 1
  • 7
  • 2
    All you have done with your question and answer is show that the Rema (R Moshe Isserless) disagrees with the Rambam (R Moshe ben Maimon, or Maimonides) - every student of Torah that sages constantly disagree with each other. And shmosel indicated in comments, all that the Rambam writes is based on Torah. Not sure I get the point of either the question or its answer – mbloch Dec 14 '23 at 03:38
  • 5
    That is an entirely separate issue from what the Rambam discusses. The Rambam is discussing the positive mitzvah to have children, and that one is obligated to fulfill it. Therefore one should not marry a woman that will prevent that from happening, unless one already has children, in which case it is fully permitted. And if there is an issue of haschasas zera according to Rambam and Shulchan Aruch (the commentators disagree based on an entirely diffeerent statement of theirss), then it is included in that prohibition, and definitely has a valid source. – N.T. Dec 14 '23 at 08:15
  • Since you are so sure of what you say, I will ask Rabbi Touger. Meanwhile, read Rema, Even HaEzer 1:3 that a man can marry a totally sterile and therefore old woman despite never having fulfilled the mitzvah of procreation: וּבַזְּמַן הַזֶּה נָהֲגוּ שֶׁלֹּא לָכֹף עַל זֶה. וְכֵן מִי שֶׁלֹּא קִיֵּם פְּרִיָּה וּרְבִיָּה וּבָא לִשָּׂא אִשָּׁה שֶׁאֵינָהּ בַּת בָּנִים, כְּגוֹן עֲקָרָה וּזְקֵנָה אוֹ קְטַנָּה, מִשּׁוּם שֶׁחוֹשֵׁק בָּהּ אוֹ מִשּׁוּם מָמוֹן שֶׁלָּהּ, אַף עַל פִּי שֶׁמִּדִּינָא הָיָה לִמְחוֹת בּוֹ, לֹא נָהֲגוּ מִכַּמָּה דּוֹרוֹת לְדַקְדֵּק בְּעִנְיַן הַזִּוּוּגִים. – Ootsutsuki Dec 15 '23 at 14:41
  • The Rema wrote his work to incorporate the opinions of the Ashkenazi authorities into the Shulchan Aruch. That does not make the Rambam's opinion less authoritative. 2) The Rema agrees the man is not doing the proper thing, but he says that we (the tzibbur) don't force him to change.
  • – N.T. Dec 17 '23 at 10:15