Q&A: Better to Dwell
Better to Dwell
Question
Your approach to the presumption of “better to dwell” is well known.
The medieval authorities (Rishonim) say about “better to dwell” that it applies even to cases where it is clear that the woman does not want it. Even in a case where she was married off as a minor against her will, or where she quarreled with her husband (so that he does not acquire a valid delivery of the bill of divorce on her behalf), and so on.
Since the woman clearly does not want it, yet we still need to explain what this presumption means, I understand that this is a general presumption that a woman wants to marry; and although she does not want *this marriage*, in general she does want marriage. Therefore the rule of acquiring something on a person’s behalf does not apply, or else this is still considered not really “against her will” (in the case of a minor) with respect to a fortiori reasoning, etc., because she does want marriage but not with this particular man. So it is not a complete disadvantage, and somehow in a case of an incomplete disadvantage one cannot acquire on her behalf, etc. (this of course needs explanation, but that is the general direction).
Although I have difficulty fully explaining the Talmudic passage mentioned above, I did not understand what led you to cancel the presumption. After all, even in the time of the Talmud the presumption was operative *even when the woman did not want it*. Why are women today (assuming reasonably that things have changed) not in the same status as a woman who did not want her husband in the ancient world, in the examples above?
Attached is Rashba, Kiddushin 5a, s.v. “money.”
“And if you would say: But when she is handed over to a repulsive man or one afflicted with boils, even though she stands and cries out, it would seem that even in this case she is pleased to settle for it, in accordance with Rabbi Shimon ben Lakish, who said, ‘better to dwell,’ etc.; and as we say in Yevamot (118b): What is the law if one confers a bill of divorce to his wife in a situation of quarrel? And we conclude: ‘better to dwell’…”
Answer
The Rashba you cited at the end is the answer. He does not write that we apply the presumption of “better to dwell” even though the woman does not want it. He writes that even in such a situation the woman does want it (in his view, apparently, this is only a temporary bout of madness). Another answer is that when there is a clear presumption, we do not take exceptional cases into account (if only because the burden of proof is on the one claiming that the presumption does not hold in this case). But where the presumption has broken down, as in our time, the situation is definitely different.
By the way, several medieval authorities and halakhic decisors wrote about various cases in which there is no presumption of “better to dwell.” For example, Maharam of Rothenburg regarding a woman who fell to levirate marriage before an apostate, and more.