Siman 9

A woman who was married to two men and they died may not marry a third because of the danger, for she has already established a chazakah that her husbands die. And even though regarding matters of money there is no chazakah in less than three times, nevertheless, in matters of mortal danger we are concerned even for two times, as in the case of milah in Yoreh Deah siman 263; for in matters of chazakah there is a dispute of Tannaim [Yevamot 64b] whether a chazakah is established in two times or three, and therefore in a matter of danger the Sages, of blessed memory, were stringent. And regarding the essential nature of this danger, there is a dispute in the Gemara: one said—the source causes it, meaning the source of this woman is like a person who kills, such that anyone who has relations with her will die; and one said—mazal causes it, for her mazal is bad such that she will sit as an agunah all her days, and anyone who marries her will die so that she will sit as an agunah [Levush], and also her mazal is bad such that she will sit without sustenance and her husbands died so that she would live in sorrow [Beit Shmuel]. And the practical difference between these reasons: for according to the reason of mazal—there is no difference between if she was betrothed or married; but according to the reason of the source—the danger is not relevant if she was betrothed, for he has not yet had relations with her. And another practical difference is when he did not die a regular death due to illness, but rather from a cause such as falling from a roof or drowning in a river and the like, for in this too we see that the cause is not from the source, but regarding mazal—one can attribute even these deaths to it. However, if he was old and died—there is no danger even according to the reason of mazal, for will he live forever?! And so too if there was a plague and he died, for since it is a regional plague we do not attribute his death to the private cause but rather to the general one, as we find regarding this in Choshen Mishpat siman 321, that when there is a regional plague we do not attribute it to private causes; see there.

Regarding the law – most of the poskim agreed to the reason that "mazal is the cause" [since Rav Ashi, the master of the Talmud, holds so there], and so it appears to be the opinion of our teacher, the Rema, who wrote "or became betrothed," for according to the reason of "the well" there is no prohibition in one who became betrothed, as I have written. Nevertheless, some say that the reason of "the well" is primary, and it appears to me that the Rambam, of blessed memory, also holds so at the end of chapter 21 of Issurei Biah, since he did not mention "became betrothed," and the opinion of the Tur is also thus; and I have not seen the early poskim explicitly mention "became betrothed," and if they held the reason of "mazal" to be primary, why did they not mention it, since this distinction is explicit in the Gemara? However, the second distinction in the Gemara regarding when he died due to a specific cause was also not mentioned by them, and there is a proof to the contrary that they hold the reason of "mazal" is primary, for if they held the reason of "the well" to be primary, they should have mentioned that in such a case it is permitted. And thus the Maggid Mishneh and our teacher, the Beit Yosef, understood that they rule according to the reason of "mazal," and they were not concerned with elaborating on this matter for the reason that will be explained [and from Ketubot 43b there is a proof for the reason of "the well"].

And post facto, if she married a third—the Rambam, of blessed memory, wrote that she shall not leave. And not only this, but even if she was only betrothed to him, we tell him to marry her. And there are some of our teachers who disagree and hold that she shall leave since there is danger, and danger is more stringent than a prohibition, and they wondered at the Rambam who was lenient in this. However, the Rambam in a responsum explained his reasoning, that there is no prohibition in this at all, but rather it is by way of divination and the fear that weak bodies will be harmed, and therefore, one whose heart does not smite him—there is no concern in this. And he wrote further that they would say to these women: if you find someone who will betroth you, we will not protest against him; and they would betroth in private and afterwards marry in public, and the beit din writes the ketubah and arranges the seven blessings. And he wrote that the Rif, of blessed memory, and Ri Migash would judge thus, and after them, he also judged thus. And in truth, the Rif in his laws mentioned this matter with great brevity [Ketubot chapter 4, and in Yevamot chapter 6 he almost did not mention it], for these teachers of ours hold that all the discussion in the Gemara is only for one who wishes to be concerned. And there are further proofs for this, for we see as a practical halachic matter that there are those who marry a katlanit and live long days and years, and generally regarding the reason of mazal—there is no mazal for Israel, and a great merit changes the mazal [Tosafot Shabbat 156a]. And there are those who wrote that if she married three men and they died, if she married a fourth—even the Rambam admits she shall leave, but it does not appear so from his words that we brought.

For all these reasons—many are lenient in this and combine leniencies with it, such as if one of her husbands was somewhat ill even before he married her, we do not attribute his death to her cause; and also if she is industrious and successful, then her mazal is not bad; and in similar cases they find pretexts to be lenient. The primary reliance is upon the words of the Rambam, the Rif, and the Ri Migash that we brought, and these teachers of ours are worthy to be relied upon even not in a time of pressing need. Our teacher, the Rema, wrote similarly that many are lenient in these matters and one should not protest against them. We have also seen in these days of ours that many have become accustomed to this, and since many have become accustomed to it, "the Lord preserves the simple" [Shabbat 129b]. Heaven forbid if we were to forbid young women whose two husbands died from ever marrying again, it is nearly certain that they would go out to an evil culture. Furthermore, it appears to me that the primary prohibition was only stated if the two husbands died immediately upon marrying her, for in such a case there is certainly a sign either in her venomous womb or in her bad mazal; but when they lived for several years, it is not relevant at all to attribute their death to her.

Regarding the matter of the ketubah, our teacher, the Beit Yosef, wrote that if he was aware of her status—she has a ketubah; if he was not aware of her status—she does not have a ketubah from the third, but from the second she has a ketubah even if he was not aware of her status. Thus far his words. And it appears to me that this is according to all opinions, for even according to those who are stringent in this matter, she nevertheless has a ketubah from the second; even when he dies, the heirs are obligated to give her her ketubah. For when he married her, she had nothing to inform him of, and it turns out that her ketubah contract is a complete obligation. Furthermore, afterwards when he died, it was not clarified that he died because of her, only that they forbid her from marrying further due to a concern of danger; and how can we remove his certain obligation because of a mere concern and regarding something in which she was not negligent at all? However, from the third, even according to the Rambam who is lenient in this, she does not have a ketubah when she did not tell him that she had two husbands; for certainly, since this is something one is particular about and the matter was mentioned in the Gemara, you have no greater case of a mistaken transaction than this, and she extracted a ketubah from him through deception. And it is possible that he can also compel her to receive a get, and if not—they permit him to marry another; and it requires further study for the practical law.

Some say that the same applies to a woman who was divorced twice, that one should not marry her, for her mazal caused them to divorce her. And some say there is no concern in this—and such is the primary view, for regarding a matter that comes about through human action and choice, the concept of mazal does not apply at all, and there are clear proofs for this, that there is no concern at all regarding divorce. It appears further that if she intervened with one man from whom she was divorced between the two men who died, she no longer has the concern of a katlanit [and so it appears from the Riban in Tosafot Ketubot 43].

A man whose two wives or more died—the Rosh, of blessed memory, ruled that there is no concern in this, for if there were any concern in this, our Sages, of blessed memory, would not have refrained from mentioning it. Furthermore, the two reasons do not apply to this, for the reason of the "wellspring" does not apply to a man, and the reason of "mazal" also does not apply to him, for the essence of mazal is not that this person should die because of the bad mazal of that person, as such a matter does not depend on mazal; rather, the mazal is the mazal of sustenance, and in this matter the woman is dependent on her husband since he provides her with sustenance, but the man is not dependent on his wife for sustenance such that it could be said that his mazal is bad and his wives die, for he can support himself without them. And there are those who hesitate regarding this [see Chelkat Mechokek subsection 3], and there are also those who explained the reason of mazal even regarding death, as was written in section 1; but according to the Rosh, of blessed memory, there is no concern even if his wives died from one cause, such as due to childbirth and the like [Beit Shmuel]. And it is obvious that when a pretext can be found that is not present in the one he wishes to marry—such as if the previous wives were virgins and he wishes to marry a widow or a divorcee and the like—that there is no concern at all in this.