Siman 13

The sages decreed upon every woman who was divorced or widowed that she may not marry and may not be betrothed to another until she waits ninety days, excluding the day she was divorced or widowed and excluding the day she is betrothed, so that it will be known if she is pregnant from the first or is not pregnant, in order to discern between the seed of the first and the seed of the second. For if she were to marry immediately and give birth at seven months, we would not know if this child is from the first and was born at nine months, or if he is from the second and was born at seven months. And they supported this from a verse, as it is written (Genesis 17:7): "To be a God to you and to your seed after you" [Yevamot 42a] — that your seed shall be attributed after you, that it shall be known that it is your seed, for the Shekhinah only rests upon those of certain status whose seed is attributed after them [Rashi]. Furthermore, there is also a concern of forbidden relations, for if not so, it could be that a man would marry his sister; for when she marries within three months and gives birth to a son, and he is thought to be of the second, and he marries the daughter of his mother's first husband that he had from another woman, and in truth the child is of the first, he would be marrying his sister from his father. And likewise, if she gives birth to another son to the latter husband, and he marries a woman and dies without children, and this one performs yibbum with her because he thinks he is his brother from his father, and in truth he is only his brother from his mother, and one who performs yibbum with the wife of his brother from his mother is liable for karet [ibid.], and there are further concerns. [And Rava and Shmuel there do not disagree, for the Rif cited both, and see Beit Shmuel and it requires further study]

And this which they decreed even regarding erusin—is because they strengthened the enactment since it is a common occurrence and there is a concern regarding family lineage, and an arusah is close to cohabitation. Furthermore, even if it is clearly known to us that she is not pregnant from the first, such as if she was divorced or widowed from erusin—she must wait ninety days as has been written. And even if she is a minor, or elderly, or barren, or an ailonit, and even if her husband was in distant lands, or was a saris, or ill, or incarcerated in a prison. And likewise, even if she miscarried after the death of her husband, or even if we knew that she is still a virgin, nevertheless, the sages did not differentiate in their enactment. And even a virgin from erusin must wait. And likewise, a yevamah whose yavam died a long time after the death of his brother and he did not perform yibbum—she still must wait three months after the death of the yavam, for she is closer to cohabitation than an arusah since he can perform yibbum with her against her will. But one who takes back his divorcee—he does not need to wait, as there is no concern in this [see Tosafot Yevamot 37, s.v. "rov"].

The waiting period for a divorcee is from the time of the writing of the get, and even if the get was conditional or she received the get after several years, nevertheless, one only counts from the day of the writing, for after the writing he is forbidden to be in seclusion with her and there is no concern here. And how is it found that the giving would be a long time after the writing? For example, when he sent it via a messenger. And some say that one counts from the day of the giving, and our teacher, the Rema, wrote that it is proper to be stringent in this way, so it appears to me, thus far his words. And certainly so it is, for since we are stringent even when it is known with certainty that she is not pregnant, all the more so is it necessary to be stringent in such a case where she is still his wife until the giving.

An unmarried woman who became pregnant from Reuven, and Reuven admits that she became pregnant from him, and she went and was betrothed to Shimon and he divorced her, and she wishes to marry Reuven—she must wait ninety days after the divorce of Shimon even though there is no concern at all, for behold she is pregnant from Reuven; nevertheless, the sages did not distinguish. And it is not similar to one who takes back his divorcee where it is known to all, but here, where she became pregnant from him through zanit, it is not known to all. And one should not say the reason is because we concern ourselves lest she also committed zanit with another, for if so, she would be required to wait twenty-four months according to the law of "the pregnant woman of another" that will be explained; rather, we do not concern ourselves with this regarding a rabbinic prohibition when both of them admit [Beit Shmuel] as was written in siman 4, except that regarding the matter of havchanah the sages did not distinguish, for she is included in the category of "the divorcee of another," and also havchanah, since they based it upon a verse, is very stringent.

One who performs me'unah—she does not need to wait, for they only decreed in the case of a divorcee, and she is a minor who is not fit to conceive. Similarly, a single woman who committed zenut, even if she is an adult—if it is not known that she conceived, she does not need to wait when she wishes to marry, for it is not common for her to conceive through zenut because a woman who commits zenut turns herself over after the act so that she does not absorb the seed, and she is not included in the decree; for the decree was only regarding a divorcee and a widow, even if we know clearly that they are not pregnant. For this reason, even if she was raped—she does not need to wait because she turns herself over. Similarly, a captive woman does not need to wait, even though we concern ourselves that the captor had relations with her; nevertheless, each time she turns herself over. And some say that all of these, when they are adults and fit to conceive—must wait, for we do not rely on the reason of turning over, as perhaps she did not turn over well and the seed was absorbed. Therefore, according to this opinion, a married woman who was raped—is forbidden to be with her husband until ninety days, for perhaps she conceived from the rapist and the child is a mamzer. And specifically when she did not have relations with her husband ninety days prior to the rape, for if not so, even if it becomes known that she is pregnant, we attribute it to her husband. And it appears that specifically when she was with her husband recently, but if there were two months that she was not with her husband—she must wait, for it is possible to clarify: when her pregnancy is not recognizable a month after the rape—behold, she is not pregnant from her husband, and when her pregnancy is recognizable three months after the zenut, it is clarified that she conceived from the adulterer; and if we permit her immediately, it will not be clarified and we will attribute it to the husband [see Chelkat Mechokek and Beit Shmuel, and it requires further study].

A maidservant and a female convert in ancient times who were designated for their masters during their state of gentility and servitude, and they converted or were manumitted – they must wait even according to the first opinion in the previous section, and even if she does not desire to marry another but rather remains with her previous master – they must wait in order to distinguish between seed sown in holiness and the previous seed.

And so too, an Israelite who kept with him an unmarried Israelite woman designated for him like a pilegesh, and she wishes to marry another—she must wait according to all opinions, even though this is zenut, for she is with him like his actual wife and it is likely that she is pregnant. And if it is known that she is pregnant from him, and she was betrothed to another and he divorced her, and she wishes to marry this first one—she does not need to wait, according to the law of one who takes back his divorcee. Nevertheless, if it is not known that she is pregnant from the first—she must wait, for she is not entirely similar to one who takes back his divorcee; for if it were not so, we should have forbidden her to the first according to the law of one who takes back his divorcee when she was betrothed to another, where it is forbidden to take her back, except that when she is pregnant from him—she is permitted. And it is not similar to the law in section 4, for here, since she was publicly designated for him, it is as if it is known to all that she became pregnant from him. And some say that it is similar to there and she is forbidden without waiting even when it is known that she became pregnant. And it appears to me that the primary view is like the first opinion for the reason we explained.

A woman who was married in error and it became known that she is forbidden to the one she married, and the beit din removed her from him—if she is an adult who is capable of conceiving, she is forbidden to marry or to return to her first husband without waiting ninety days in order to know if she is pregnant from this one she married in error. And even according to the first opinion in section 5 that regarding zenut one does not need to wait, it is different here, for she did not intend for zenut and thought she was married permissibly, and she does not turn over. But if she is a minor who is not capable of conceiving—she does not need to wait. And even though we do not distinguish regarding havchanah between an adult and a minor as has been written, nevertheless, in this case, which is an uncommon matter that one would marry in error, and any matter that is uncommon the rabbis did not decree upon it since there is no concern regarding the essence of the matter.

A woman who was divorced and a disqualification was found in the get, and she was divorced with another get, must wait three months from the time of the second get. And if there was no disqualification, but rather a rumor of disqualification emerged and they required giving another get because of the gossip—some say that she also must wait from the second get, for they did not differentiate in this regulation; and some say that in such a case she does not need to wait from the second, but rather from the first get, for she is not included in the category of a divorcee since she was already divorced with a valid get. Nevertheless, one should be concerned for the first opinion unless there is an additional combination of factors such that it is impossible to wait [Beit Shmuel]. And similarly, when she was divorced due to a mere rumor of kiddushin, if the beit din required him to divorce her—behold, she is included in the category of a divorcee and must wait. However, if he divorced her on his own, not according to the beit din—she does not need to wait [Beit Shmuel] if the beit din would not have required giving her a get, such as where there was no rumor that must be concerned for according to the law, for she is not included in the category of a divorcee regarding the matter of havchanah.

Even though the sages also prohibited becoming betrothed within the days of distinguishing—nevertheless, to enter into a shidduch is permitted, and the writing of tena'im is nothing and is not similar to erusin. Nevertheless, our teacher, the Beit Yosef, wrote that we administer an oath to the groom-to-be that he shall not enter the house of the bride-to-be until after the days of distinguishing, so that they do not come to a mishap. And even though if we were to be concerned for this, we should administer an oath to every groom-to-be so that they do not come to zenut, nevertheless, regarding the prohibition of distinguishing one must be more stringent. However, from the words of our teacher, the Rema, it implies that there is no need to swear, but rather they tell him that it is prohibited to enter her house until the days of distinguishing have passed; yet from the words of the later authorities it implies that they did not perceive a dispute in this and ruled that he must swear. And some say that also regarding the twenty-four months of a fellow's nursing woman the law is such, that the groom-to-be must swear not to enter her house all twenty-four months, and there are distinctions in this, and one should not learn from distinguishing which is much more severe because it involves family lineage and they supported it with a verse, and not so regarding a fellow's nursing woman—and an oath is not required. And to enter her presence with a guard—even regarding distinguishing one should permit. However, if he swore plainly that he would not enter her house—it is prohibited to enter even with a guard, and it seems to me that in this time they have not practiced administering an oath even regarding distinguishing, and it appears to me that they relied on our teacher, the Rema, who omitted the oath. And so wrote the Beit Meir, that in this time there is no need to swear, see there.

The sages further decreed that any woman who was divorced or widowed and remained pregnant or nursing—she is forbidden to marry or even merely to perform kiddushin to another until the child is twenty-four months old, for this is the time that most children nurse. The reason for this decree is because the sages understood the mindset of women who are anxious to marry a man, and if we were to permit her to marry before this time, she would employ every tactic to wean the child before its time and the child would come to danger; and also if she marries, perhaps she will become pregnant and her milk will be spoiled and she will wean the child not in its time and it will come to danger. Therefore, they closed the path before her so that she should not contemplate another man and will nurse the child properly. They also forbade kiddushin in order to distance her from marriage, just as they decreed regarding the period of discernment, and furthermore, according to the primary law she is forbidden in kiddushin for the first reason we wrote, for through this she will wean the child before its time [this reason was written by the Rosh in the fifth chapter of Ketubot, siman 20, and with this it is clarified for us why in Yevamot page 42a the prohibition is attributed to the one who marries her, and in the name of the second reason, and in Ketubot 60a it is attributed to her and does not mention the reason in Yevamot; and examine this carefully].

And they were stringent in this, that even if she gave her son to a wet nurse—it is of no avail, for we fear perhaps the wet nurse will retract [Tosafot]. And even if she weaned him within this time, because we fear perhaps she will wean him when he still needs to nurse [ibid.], for because of her desire to marry she will do so and the child will come to danger as has been written. And even if the wet nurse swore that she would not retract, or took a vow with the knowledge of the public that she would not retract, for which there is no annulment—nevertheless it is of no avail, for since the oath or the vow is not recognizable to the public, people will come to mistake it and permit even without an oath [the Rosh], and in that case there is certainly a complete concern perhaps she will retract. And even if she swore to a great man, such as those who go in the king's court, where she would certainly be afraid to retract—nevertheless it is forbidden because the matter is not recognizable. And some say that post facto, if she swore and he married her—he need not divorce her since in her case there is no concern, but most of the poskim disagree on this [the Gra]. And so too even if the wet nurse gave a pledge, and even if they hired two wet nurses—it is of no avail at all [Beit Shmuel] for the reason that has been explained, and even if they deposited much money on her behalf it is nothing. And we do not fear perhaps the woman will go out to an evil culture, for since the rabbis decreed because of the concern of danger to the child—we do not pay heed to all the corruptions that could be [the Rivash].

If the child died, she is permitted to marry, and we do not fear that perhaps she killed him intentionally, for this is not the way of women. And even if it occurred that one did so, we do not fear for this, for she was certainly insane [Gemara]. And similarly, if she weaned the child during the husband's lifetime, even one day before his death, she is permitted to marry, for there is no concern here since she did not know that the husband would die. And similarly, when she is unable to nurse her offspring, such as if she has shriveled breasts or if her milk is poisonous and it is known to all that she is unable to nurse, she is not included in the category of "one who nurses the child of another," and even if she gave birth to him after the death of her husband, she is permitted to marry after the months of discernment. And similarly, if she gave her son to a nurse during the husband's lifetime three months before his death, for this is the time when the milk ceases completely, she is permitted to marry, as all of this is known and recognizable to the public. And similarly, if her milk ceased during the husband's lifetime and they hired a nurse for him, she is permitted to marry, and this does not require three months during the husband's lifetime since her milk ceased; and that which we required three months during the husband's lifetime was when her milk did not cease but rather they hired a nurse for the sake of comfort. However, this is specifically when she does not nurse at all, but if occasionally she also gives the breast to his mouth, she is forbidden until twenty-four months [the Gra]. And when her breasts shriveled during the husband's lifetime or her milk ceased for any reason, if they hired a nurse for him during the husband's lifetime, she is permitted to marry, and if not, she is forbidden, for in any case the status of a nursing woman is upon her since he does not have another nurse until now [see Chelkat Mechokek and Beit Shmuel, and examine it closely].

And one should not ask regarding this – why in the decree of a nursing woman we only forbade when there is a concern in her herself or when it is not evident to the public, but if there is no concern in her herself and it is evident to the public we did not forbid and we do not decree on account of other women, yet in the decree of havchanah we were stringent in every case as has been explained? For it can be said that regarding a long period of twenty-four months they did not want to be so stringent, and furthermore, in havchanah there is a concern of lineage, and in matters of lineage they were very stringent, and havchanah was supported by a verse [and the Gemara in Ketubot there which challenges from havchanah does not mean to compare it entirely, as is proven from Rav Nachman himself who permitted it for Rav Gidal, but rather this is its meaning: how is it possible to be so lenient even in a case where there is a concern in this woman, for behold in havchanah we are stringent even in a case where there is no concern in this woman herself according to Rabbi Meir, and this is the intent of Tosafot there, and see Maharsha].

It appears to me that even in a case where a nursing woman is permitted to marry, such as with shriveled breasts or where her milk is poisonous, as has been explained, nevertheless when she is pregnant—she is forbidden to marry until she gives birth. For in the Gemara [ibid. Yevamot] another reason is cited regarding a pregnant woman, that perhaps he will press and crush the fetus. And even though it rejects this and concludes that the reason for a pregnant woman is because an ordinary pregnant woman is destined to be a nursing woman, and since it is one reason we should have permitted it, nevertheless the Rambam, of blessed memory, in the eleventh chapter of Hilkhot Gerushin, wrote this reason regarding a pregnant woman, as he holds that it was not completely rejected [Kesef Mishneh and Yam Shel Shelomo there, siman 30]. Furthermore, the rabbis decreed against "the pregnant woman of another" and "the nursing woman of another," and when she has shriveled breasts she is not called "the nursing woman of another," but she is called "the pregnant woman of another," and she is included in the decree [Yam Shel Shelomo]. There is one who is uncertain about this [see Beit Shmuel], but according to the law it appears as I have written [and from the Rambam himself this law is proven, for why would he need the reason of crushing except in such a case; and therefore in Ketubot there he only mentioned a nursing woman because a nursing woman is sometimes permitted, but a pregnant woman is always forbidden, for it deals with her own knowledge and she knows if she has shriveled breasts or poisonous milk, but in Yevamot which deals with his knowledge and he does not know—therefore it grouped them together, and examine this carefully].

There are some of our teachers who said that a divorcee is permitted to marry within twenty-four months, for she is not included in the category of "the wet-nurse of another's child," since she is not obligated to nurse the child, as the responsibility lies upon the father to care for him by hiring a wet-nurse or feeding him with milk and eggs. However, a widow, even though she also is not always obligated—such as when she does not seek sustenance from the heirs—nevertheless, since the child has no father to care for him, the sages enacted a decree that the mother shall nurse [the Rosh in Ketubot in the name of Rabbeinu Shmuel the Elder]. But many of our teachers disagreed with him, for we do not find this distinction in the Gemara; on the contrary, it implies the opposite, that there is no distinction in this, and such is the opinion of the Rambam, and so ruled the Gaon Rav Achai in the Sheiltot. Furthermore, in the Gemara [Yevamot] they asked: why did they impose this upon her, is she not able to come to beit din and sue the heirs? And it answers that a woman is ashamed to come to beit din, and in the meantime the child will be in danger. If so, all the more so a divorcee would be ashamed to sue the one who divorced her in beit din. Furthermore, they are forbidden to be together [Mordechai]. Furthermore, the first reason that we wrote in section 11 can also apply to a divorcee.

And so there are those who were lenient regarding an unmarried harlot who gave birth, that she may marry within twenty-four months, and our teacher, the Rema, wrote concerning this that one should be lenient with one who is abandoned to harlotry so that her husband may guard her. Thus far his words. And even though according to the reasons that were explained, a harlot is conversely worse than a divorcee or a widow—for here there is neither a father nor heirs upon whom to cast the child—nevertheless, it can be said that she is not included in the decree, for they only decreed regarding the nursing mother of another's child where the father is known, and with a harlot there is no known father; and even when she says "I became pregnant from so-and-so," she is not believed if he does not admit to it. Furthermore, it is understandable that with a proper woman, a widow or a divorcee, when we forbid her to marry there will be a benefit to the child as I have written, but a licentious harlot will surely not refrain from harlotry and all the concerns will return to their place; and conversely, when we do not permit her, the child will be in greater danger because she will not look after him and it is likely she will destroy him with her own hands because of her licentiousness in harlotry. And this is the intention of our teacher, the Rema, "so that her husband may guard her"—for since she will have a husband and will leave her licentiousness, there will be more benefit to the child than if we do not permit her, [and his intention is not because of her own benefit, and this is also the explanation of the words of the Maharam of Turemish in the Hagahot Mordechai of Perek HaCholetz].

And if one admits that the child is from him and wants to marry her – he is believed, and she is permitted to be married to him immediately [Beit Shmuel]. And we do not fear that perhaps the child is not from him and he set his eyes upon her, for since by the law he is believed regarding the child that it is his, as was written in siman 4, how can we forbid her to him until twenty-four months? Behold, by the law she is not the nurse of another's child, but rather the nurse of his own child.

The twenty-four months are according to the order of the months, where one is full and one is deficient. The twenty-four months are apart from the day of birth and the day of betrothal, and a leap month counts toward the total. For the general rule is that in a year we do not count the leap month, but in months we also count the leap month, as is written in Choshen Mishpat siman 312. Since the sages, of blessed memory, stated regarding the period of nursing twenty-four months—it follows that we also count the leap month within the total of the twenty-four months. Nevertheless, some say that initially one should be concerned even for the leap month, and the reason is because we also find that the sages, of blessed memory, stated regarding the period of nursing two years, and in years the leap month is not counted. Even according to this opinion, when the twenty-four months conclude on Rosh Chodesh Adar Sheni—one need not wait longer, since the twenty-four months were completed before the leap month, for we are only stringent when the leap month is within the twenty-four months, and likewise in any case where there is some side to be lenient, we are lenient regarding the leap month. And even in a case where there is no reason to be lenient, if he transgressed and married having counted the leap month within the twenty-four months—we do not take her away from him and we do not separate them, for the primary law is like the first opinion. And know, that in any place where she is forbidden to marry—she is even forbidden to marry a eunuch; and even though there is no concern there lest she become pregnant and her milk be spoiled—nevertheless, the rabbis did not differentiate. Furthermore, according to the first reason we wrote in section 11, it is applicable in this case as well. And to enter into a shidduch—it is permitted, but the betrothed must be careful not to enter her house without a guard during the entire twenty-four months, as was written in section 10.

A widow who was nursing her son in a place where she is obligated to nurse, such as when she receives sustenance, may say: "I will not nurse except for a wage, and I do not want your sustenance; give me my ketubah and I am not obligated to nurse." And even though she cannot marry until twenty-four months, nevertheless she can withhold the nursing from herself. However, if they give her a nursing wage, they compel her to nurse [Chelkat Mechokek], and in siman 80 this will be explained with the help of Heaven. However, if the infant recognizes her in a manner such that he will not nurse from another, it is simple that they compel her to nurse [it appears to me], and in siman 95, section 4, we explained more regarding this with the help of Heaven; see there well.

Our teacher, the Rema, wrote in section 13 that there is no difference whether she began to nurse or did not begin, thus far his words. The explanation of his words: For some say that specifically when she nursed him during her husband's lifetime or afterward, but if she did not begin to nurse at all, she is permitted to marry, for she is not included in the category of "the wet-nurse of another's child," and regarding this he says that it is not so—for she is always forbidden except according to the details that were explained in section 17. And according to this, a woman who gave birth at the time of her husband's death and does not desire to nurse at all—nevertheless, she is included in the category of "the wet-nurse of another's child," and all the more so when she was pregnant at the time of her husband's death, for she is forbidden until twenty-four months after the birth, for she is included in the category of "the pregnant wife of another." And the reasoning of those who permit is that since the sages, of blessed memory, said a wet-nurse whose husband died is only forbidden when she was nursing him at the time of her husband's death, to exclude if she did not put her breast to his mouth, she is not included in the category of a wet-nurse; and also regarding "the pregnant wife of another," the sages, of blessed memory, forbade it because typically a pregnant woman is destined to be a wet-nurse, and this is in a typical case, but if while she was pregnant she revealed her intention that she does not desire to nurse, such as if she appointed a wet-nurse or the like—it is not relevant to say of her that typically a pregnant woman is destined to be a wet-nurse, for she is not destined to be a wet-nurse. But to our teachers, the Rema and the Acharonim, this leniency did not seem correct to them.

Our teacher, the Beit Yosef, wrote in section 14: That which we have said regarding a divorcee, there is one who says that it is specifically when she nursed him before she was divorced until he recognized her, but before this time – no, for if she desires, she need not nurse him at all even for payment. And there is one who says that a woman whose husband died and left her pregnant and she gave birth and did not nurse her son – she must wait twenty-four months, and it is implied from his words that the same applies to a divorcee. Thus far his words. And his words require clarification [see Beit Shmuel and Pitchei Teshuva].

And it appears to me that this is the explanation: for we have already written in section 16 that there are those who permit in the case of a divorcee because she is not obligated to nurse, and that many disagree regarding this. And there are some of our teachers who hold that if she has nursed him until now and the infant recognizes her, we compel her to nurse him due to the danger to the child, for after he recognizes her he will not accept nursing from another; but before he recognizes her, he agrees with the opinion of the one who permits, and this is the opinion of the Rashba, of blessed memory. And according to this, it can be said that even those who forbid in the case of a divorcee only forbade when she had at least begun to nurse, for even if he does not recognize her yet, she is nevertheless included in the category of "the wet-nurse of his fellow." However, when she has not begun to nurse at all, she is not included in the category of "the wet-nurse of his fellow," so as not to create three disputes regarding a divorcee. And in truth, we have not explicitly found among the Rishonim that they would forbid in the case of a divorcee when she had not begun to nurse. However, the Rivash in a responsum ruled regarding a pregnant widow who had not begun to nurse and had hired a wet-nurse that she is forbidden until twenty-four months, for there is reason to decree lest she does not give [the child to a wet-nurse]. And this is the second "there are those who say," and so he brought in his great book. And according to this, this decree exists in the case of a divorcee as well; for according to the essential law, since it was not her intention to nurse him and she had not begun to nurse, even in the case of a widow we should not have forbidden her, for she is not included in the category of "the wet-nurse of his fellow" and is not included in the category of an ordinary pregnant woman who is standing to nurse, as I wrote in section 21. Nevertheless, they forbade her, as per the opinion of our teacher, the Rema, there. And the reason is because we decree lest she does not give him to a wet-nurse since the matter is not recognizable, as I wrote in section 12; if so, this decree exists also in the case of a divorcee according to the opinion of those who forbid in the case of a divorcee. Nevertheless, our teacher, the Beit Yosef, wrote in his great book that he saw teachers who permit in the case of a divorcee even when she had begun to nurse if he does not recognize her yet, and they rely on the opinion of the Rashba, of blessed memory—and he did not protest against them [and so wrote the Bach, and the Taz disagrees regarding this].

There are some among the great Acharonim who wrote that in a case where there is permission to give the child to a wet-nurse—they must give it to an unmarried wet-nurse and not to a married one, for since they said in the Gemara that the reason she may not marry is lest she become pregnant and her milk be spoiled, if so, when the wet-nurse is married, this concern also exists. These are words of reason; however, we have not found the poskim saying so, and on the contrary, in earlier responsa it is found that they gave the child to a married wet-nurse and the greats of the generation did not hesitate for this reason [Responsa Maimoni to Ishut, siman 24]. Therefore, it appears that there is no concern in this, for in the Gemara they asked: if so, let us forbid every nursing woman from having relations with her husband, lest she become pregnant and the milk be ruined and the child be harmed? And they answered that a father and mother are different, for when the milk is ruined, they will nourish the child with milk and eggs, as it is the way of parents to have mercy on their children; this excludes when she marries another, for he will not have pity on the child who is not his and will not give her milk and eggs, and she will need to claim from the heirs of her first husband and will be ashamed to claim from them, and in the meantime the child will come to danger [Yevamot 42b]. And the Rambam explains that she is able to repair the spoiled milk by means of milk and eggs, and according to this, this is all regarding her child from her first husband, for the second husband will not be concerned for him and she must claim from the heirs of the first and will be ashamed to go to beit din to claim from them in judgment. But a wet-nurse whom they hired and who takes a wage for her nursing, and presumably she hired herself out to nurse with the husband's consent—for without his consent he could protest against her as written in siman 80—if so, since they take a wage, both of them will look after the child's welfare, and if the milk is spoiled, she will not be ashamed to claim money from the one who hired her, and the husband himself will do every endeavor since he takes a wage, and they are like a father and mother to the infant. [And something similar to this was written by the Be'er Moshe, and the words of the Noda BiYehuda in siman 25 do not appear correct to one who examines there, and so wrote the Be'er Moshe].

Regarding these two matters—distinction and a nursing woman—which the sages forbade for marriage and betrothal, if they transgressed this, the Rambam, of blessed memory, wrote [there]: One who betroths within ninety days—we place him under a ban; if he betrothed and fled—we do not place him under a ban; if he married within ninety days—we separate them until after the time, and then he may remain with his wife. Thus far his words. And regarding a nursing woman he wrote: If he transgressed and married a pregnant or nursing woman within this time—he must divorce her with a get, even if he were a kohen; and if he were a Yisrael, he may take her back after the twenty-four months of nursing. If he married and fled, and after some time came and lived with his wife—it is of no consequence. If he betrothed a pregnant or nursing woman—we do not compel him to divorce, but he may not marry her until after the time of nursing or until the child dies. Thus far his words.

And according to his words, regarding the discernment period when one betrothed within ninety days—it is sufficient with niddui alone and we do not compel him to divorce, and consequently he remains in his niddui until he divorces or until the ninety days pass; and even if they did not place him in niddui until the ninety days passed, nevertheless they would place him in niddui for the transgression he committed [Beit Shmuel], and if he fled—exile atones for the sin and he does not require niddui [Maggid Mishneh]. And regarding marriage, we separate them and a get is not required as is the case with a nursing mother because it is a short duration [Nimukei Yosef]. And it is a simple matter that regarding marriage, all the more so they would place him in niddui, and it was not necessary to specify this as it is an a fortiori argument from betrothal [Beit Shmuel]; and specifically when she is not pregnant, but if she is found to be pregnant—he remains in his niddui until she gives birth and nurses for twenty-four months or until he divorces her [Nimukei Yosef]. And regarding a nursing mother when he transgressed and married—because it is a long duration, he must necessarily divorce her, and consequently since he nullified his actions, he does not require niddui [Beit Shmuel], and fleeing is effective there as well since he fled and revealed his intention that he would not be with her. And regarding betrothal, we do not compel him to put her out, but rather he remains in his niddui until he divorces or until the time passes [ibid. subsection 33], and the Rambam did not need to explain the niddui here as he relied on what was stated previously.

Many of our teachers are of the opinion that even regarding erusin, and certainly regarding nisuin—whether in the case of discernment or in the case of a nursing woman—they would place him under a ban until he divorces, and even if she is a minor who is not fit to give birth [Beit Shmuel, subsection 17]. And in the case of a nursing woman, when he divorces her, he must give her her ketubah; if he was a kohen, she is lost to him, and if he is a Yisrael, he may take her back after the time when both of them consent, and he shall write another ketubah for her. If she says that she does not wish to receive her ketubah now and will hold onto her ketubah until he takes her back, the authority is in her hand [Chelkat Mechokek, subsection 11]. If he fled and afterwards came and lived with her after the time, there is nothing in this. Some say that we instruct him to flee, for our entire intention is to separate them; therefore, if he is unable to flee, she should flee. This is specifically where he performed kiddushin, but if he brought her into the home, we do not instruct him to flee and he is compelled to divorce her, and if he fled without a divorce, he has not acted properly [Beit Shmuel, subsection 31]. There is one who says that this flight must be to such a distance that his return would be after three months in the case of discernment and after twenty-four months in the case of a nursing woman, but this does not seem so from the words of the poskim, and especially in this time when they travel on railroads and there is no such distance that he would be unable to return until after the time. If the beit din did not compel him until the time passed, even though he performed kiddushin through a transgression, they no longer compel him, for since the times have passed, they have passed. And when he has divorced her, she is forbidden to dwell with him even in the same alleyway, and certainly in the same courtyard, even though his intention is to take her back.

One of the great earlier authorities wrote: If she transgressed and married within three months – they examine her with all types of examinations to see if she is pregnant. And even though the Sages, of blessed memory, said that they do not examine married women so that she should not become loathsome to her husband, here, where she married in violation of a prohibition – let her become loathsome and let her become loathsome [Beit Yosef in the name of the Ramah]. And what is her examination? That women examine her breasts, for generally there is a recognition of a pregnant woman in her breasts. And likewise there is an examination in her gait, that they lead her through loose soil; if she is pregnant, the footsteps are recognizable as they are deeper than other women [Rashi, Yevamot 42].

Some say that all these matters apply when he betrothed her intentionally, but if it was unintentional – he is not required to divorce, but rather they are separated, and some are stringent even if it was unintentional. It is called unintentional when they did not know of the prohibition. And if one of them was intentional – their law is like both being intentional. Our teacher, the Rema, in section 10, decided that regarding a kohen for whom it is forbidden to take her back, one may rely on the words of the lenient ones and we do not require him to divorce, but regarding an Israelite one should not rely on the opinion of the lenient ones. Thus far his words. Some say further that regarding a kohen, even if it was intentional, one may rely on the opinion of the Rambam that he is not required to divorce her if he betrothed her, and consequently, even if he married during the period of discernment one may rely on his opinion that separation is sufficient, as I wrote in section 25, and not to perform a divorce against his will. And what the Beit Shmuel wrote in the name of the Taz in subsection 17, that there is no difference between betrothing and marrying – this is regarding discernment, but regarding a nursing woman, if he married her, even according to the Rambam he requires a divorce. And if she committed adultery during the days of discernment – she is punished only for the adultery and not for the fact that she did not wait ninety days, for in a case of the prohibition of adultery, it is not relevant to penalize for discernment.

There are fools who transgressed and were punished for saying that in this time, when they do not nurse their children for two years, there is no need to wait two years; and their mouths speak vanity, for the sages, of blessed memory, also knew that most children do not nurse for two full years, but they were concerned for even a tiny minority regarding a danger to life [Chatam Sofer]. Furthermore, the primary reason we explained in section 11 is that the sages understood the nature of women, that due to their desire to marry they will not be concerned for the welfare of the child, as the senses testify; and if you say that within a short duration she is permitted to marry, she will employ every tactic to show that her child needs to nurse for only a few months, and she herself, due to her desire, will imagine it to be so. And I tell you a great principle: that our teachers, the sages, of blessed memory, aside from the greatness of their holiness and their wisdom in the Torah of Hashem, were furthermore greater in the natural sciences and in worldly knowledge than all those who act wise to challenge their pure words; and one who casts doubt upon their words testifies about himself that he does not believe in the Oral Torah, even if he is ashamed to say this with a full mouth.