Taking Precedent Seriously 37
year-old woman said to be worth eighty gold doubloons. The community leadership objected to the proposed union on the grounds that“his goal is not marriage, but her wealth.” Moreover, Shmuel did not yet have children, so that his obligation under the commandment to“be fruitful and multiply”'* remained unfulfilled and manifestly could not be fulfilled by means of the proposed marriage. Shmuel for his part rejected the community's instruction and went promptly to the Muslim ruler of the city, protesting that“the Jews are preventing me from taking a wife” and that Jewish law does not forbid a man from marrying a woman much older than he;“such is the custom in every Jewish community.” The community leaders responded that the halakhah forbids a marriage of this sort until such time as a man has fulfilled his duty of procreation. The two sides, perhaps at the local ruler’s suggestion, agreed to submit the issue to Rivash for his opinion.
I choose this responsum in large part because the established law on the subject, expressed in the form of Talmudic sources and prior rulings, is apparently unambiguous. Rivash, indeed, begins his presentation in precisely that manner:
A man who has not yet fathered children should marry only a woman who is capable of bearing children. A man who has fathered children and has already fulfilled the mitzvah of procreation may if he wishes marry a woman who is not capable of bearing children. This position is stated in the Mishnah [M. Yevamot 6:6]... and in the Talmud [BT Yevamot 61b]. And these are the words of Rambam [Yad, Ishut 15:7]:“A man should not marry a woman who is barren, or too elderly to bear children, or an ailonit [a woman with male-like features incapable of conceiving], or a minor girl who cannot yet bear children unless he has already fulfilled the mitzvah of procreation or has another wife with whom he can fulfill it.”
Not only does the halakhah forbid this marriage; it demands that the communal authorities take action to prevent the wedding and, should it take place, to bring a forced end to the union. Rivash brings several Talmudic passages to this effect, among them BT Ketubot 77a:“when one has lived with his wife for ten years and she has not given birth, he is coerced(kofin oto) to divorce her.” This is essential, even though the husband can technically take a second wife, because so long as the couple live together he will not be inclined to avail himself of that remedy