Q&A: How Can There Be a Presumption of “Better to Dwell”
How Can There Be a Presumption of “Better to Dwell”
Question
Hello to my teacher, may he live long. It is difficult for me to understand how one can make use of the presumption of “better to dwell,” since even if this is the common female nature, still, if a woman insists that she does not want this particular man, then she does not want him. Maybe she has distorted feelings according to the assumption of “better to dwell,” but that is still her real will. It is like my making a presumption that most people like chocolate, and therefore I can feed you chocolate even if you do not want it.
Answer
You are mixing together different points of view. If a religious court knows clearly that this particular woman never consented from the outset to a husband who would beat her, then there is room for the claim that the betrothal is void, even if other women are not particular about this (though one must still discuss here the law regarding unexpressed intentions). But if the religious court does not know, and the woman now comes forward, when she wants to divorce, and says that she never consented, why should we believe her? Perhaps she is saying this now because she wants to free herself without a bill of divorce, but originally she did consent. Therefore, in the case of a woman about whom we have no specific information, we follow the presumptions that determine what a reasonable woman would do.
Discussion on Answer
That is very interesting. The question is how he would explain the halakhic decisors who do apply “on that understanding” in certain cases (perhaps he would explain that those are cases where the minority is tiny, and we do not take it into account). Beyond that, of course, that is not the simple meaning in the Talmud. And beyond that, in Kiddushin 7a it is clear that this is not the intention (and I have not checked the other places).
1) In any case, it is clear that the presumption of “tan du” is not sweeping but statistical, because if we do not say so, then a woman also could not claim there was a mistaken transaction—for example, a husband afflicted with boils who concealed it from her—because “better to dwell,” etc.
2) Also in the passage in Kiddushin, it is impossible to explain simplistically that she is willing at any price, because then the question about mistaken transaction comes back. Rather, the quote “for a woman is content with any sort, as Reish Lakish expounded, for Reish Lakish said: better to dwell…” has to be explained as meaning some sort of man within the bounds of reasonableness—admittedly with a low probability (and each period according to its own standards of probability), but still not in unreasonable cases.
3) It can also be inferred indirectly, because this presumption speaks about marriage as a second wife, in which case it is obvious that this is not ideal but is reasonable. Therefore, what a woman desires in “any sort” is within the bounds of reasonableness, and not in unreasonable cases.
Indeed.
I think the words of Beit HaLevi were not understood correctly.
Beit HaLevi argues that there is a difference between a case where the defect existed at the time of the transaction and a case where it arose afterward. In a case where the husband was afflicted with boils at the time of the betrothal, this is a mistaken transaction (“a mistake in the very act”), and therefore she is certainly not betrothed.
In a case where the defect arose afterward, one needs a “condition” with all its requirements (the condition before the act, the positive before the negative, etc.), or, if it is an “unmistakable presumption,” then the laws of conditions are not needed.
Therefore, when the defect arose afterward, the Talmud says “better to dwell, tan du.” That is, since there is a minority of women who prefer to be married even though the husband or the levir is afflicted with boils, there is no longer an unmistakable presumption, but only a mere logical assumption, and one therefore needs a condition with all its rules and details.
I would be glad if the Rabbi would share his view on that passage in Beit HaLevi, which touches on the subject of the latest post. (Beit HaLevi 3:3, mainly from the words “and it seems to explain”).
Exactly—that is what I wrote.
To the questioner,
See the responsa Beit HaLevi, part 3, section 3, where he explains that “better to dwell” does not mean that every woman is comfortable marrying at any price, nor even that most women are comfortable marrying at any price, even to a man afflicted with boils. Rather, there is a minority of women who are willing to do so (and therefore one cannot say “she would not have become betrothed on that understanding,” since there is a minority), and he brings proofs for this both from the Talmud and from reality.
If so, according to his approach, this is not a presumption at all (contrary to the famous words of his grandson).