Beit Yosef Decides According to the Stringent Ones

In our last post, we presented the position of the "maikilim" or the lenient ones. For the sake of this series, the MK's will refer to those who hold that the only time a person must separate from his new spouse after the first intercourse is IF she has bleeding.  The bottom line of this opinion is as follows.  The gemara in Niddah 64b-65b is discussing how to treat hymenal bleeding halachically.  According to the letter of the law, as long as we can attribute the origin of the blood to the hymen and not the uterus, the woman would not be considered a niddah. The stringency of Rav and Shmuel that suspected that any blood might have uterine blood as well, was referring to cases where there actually was bleeding, however, if there is no bleeding, there is no reason to separate the new couple. 

I want to describe in some more detail now the opinion of the "machmirim" the stringent ones.  These are the Poskim who have determined that one must separate from his new spouse after the first intercourse even though they do not see any bleeding at all.

It is crucial to understand this position in order to continue, and I will begin with the following exchange recorded in the Gemara:

It was stated that the amora’im engaged in a dispute: If a husband engaged in intercourse with a virgin and did not find blood, and he went back within the first four nights and again engaged in intercourse with her and this time he found blood, Rabbi Ḥanina says: The wife is ritually impure, as this is menstruation blood. And Rabbi Asi says: She is ritually pure, as it is blood from the wound resulting from the act of intercourse. Rabbi Ḥanina says: She is ritually impure, as if it is so that it is blood from her hymen, i.e., the blood of her virginity, it would have come at the outset, after the first time they engaged in intercourse. And Rabbi Asi said: She is ritually pure, as perhaps it happened for him that he engaged in intercourse like Shmuel described. As Shmuel said: I can engage in intercourse several times without the appearance of blood. In other words, I can engage in intercourse with a virgin while leaving her hymen intact. And the other Sage, Rabbi Ḥanina, does not allow for that possibility, since he maintains that Shmuel is different, as his strength was great. Shmuel was particularly skilled at this, while others cannot accomplish this. (Niddah 64b)

There are several points that are evident from this gemara:

1. The assumption is clear that one is not prohibited to remain sexually active with his new spouse when there is no bleeding at all with the first intercourse.  Thius is undisputed in ANY of the commentaries, and it crystal clear in the passage that we just quoted.  This passage was written AFTER the decree of Rav and Shmuel, as both Rav and Shmuel lived close to a hundred years prior to Rabbi Ami and Rabbi Asi.
2. It is clear that the only concern with the second intercourse was because there was bleeding, and the question revolved whether or not it is possible that the hymen was still intact and the blood was hymenal in origin, or was it impossible to have intercourse without breaking the hymen once, and then break the hymen again.  The conclusion was that if their is going to be hymenal bleeding, we must assume that it will happen every time, as not everyone is an "expert" like Samuel was in intercourse without breaking the hymen.
3. But what if there is no bleeding at all? Not with the first or the second or the third time?  It is obvious from the Gemara that under such circumstances she would NEVER be prohibited to her husband.  Maybe because she simply does not have a hymen that will bleed, or for some other reason.  This is a crucial point.   

Despite what we have just seen, the majority of the Poskim say, as we saw quoted in the HM in our last post, that one must separate from his wife even if there is no bleeding with the first intercourse.  I can quote here the Rashba (Rabbi Shlomo ben Avraham ibn Aderet 1235-1310), the Ritva (Rabbi Yom Tov ben Avraham Asevili - 1260-1320), Ramban (Rabbi Moshe ben Nachman also known as Nachmanides 1194 - 1270) and many others.  However, I am going to choose to quote the Rosh (rabbi Asher ben Yechiel 1259 - 1327) for several reasons. For starters, the Rosh was a little later than the previous Rishonim and thus he synthesizes the opinions of the MRs in a very coherent and clear manner.  So it is our best way to get an understanding of the thought process that led to this stringency.  In addition, the Rosh famously combined the wisdom and Halachic traditions of both the Ashkenazic and the Sephardic Poskim.  Thirdly, the influence of the Rosh on the future development of Halacha, through his son's (Rabbi Jacob ben Asher 1269-1343) work in the Arba'ah Turim. The Beit Yosef (Rabbi Yosef Karo 1488-1575) and ultimately the Shulchan Aruch were directly based on the foundation laid out by the Rosh.

...Rav and Shmuel together stated that the law is that he has the first intercourse of the Mitzvah and then he separates (from his spouse) ....(The Rosh continues to quote the Talmud that establishes the decree of Rav and Shmuel as normative) ... and it seems to me that the reason for this decree is not because we are concerned that maybe there is blood from the uterus mixed in with the blood from the hymen (even though I mentioned to you before that it seems from the Yerushalmi that this is the reason for this decree.  The Rosh is disagreeing with this reasoning) For why should we be concerned (especially) by a young girl who has never menstruated that there is menstrual blood mixed in? and even by an adult woman who has menstruated, Haven't we stated (further in chapter 3 of Niddah) that if there is a woman who bleeds during intercourse, even if it occurs regularly, that if there is a wound we can assume that the wound is the origin of the bleeding, and what would is more obvious than tis (the wound of the hymenal tearing) and clearly this is hymenal blood and not uterine blood. rather, the reason for this stringency is because the first intercourse is something which all people engage in (even inexperienced and uneducated people) and most people cannot differentiate between women who have had periods before, and women who have not, and women who are adults and women who are not, Furthermore, a new groom is very excited (and therefore presumably will not differentiate between which blood is OK and which is not) So therefore the rabbis agreed to treat this blood as the most severe of all the severities (at this point the Rosh is still talking only about cases in which there was actual bleeding) ...(I am skipping here where the Rosh discusses whether or not the husband needs to wait until he loses his erection before he "comes out" and separates from his wife) ... and since they were stringent with this first intercourse to consider her like a woman who has menstruated, therefore even if they had intercourse and did not find any bleeding since most women do have bleeding from their hymen (at first intercourse) we suspect that maybe there really was a tiny drop of blood like (the size of) a mustard seed and it just got lost, or maybe it got covered up in the semen. but we do not suspect that maybe he was able to "tilt" (in such a way that the hymen did not tear as "tilting' is not common as we see in the Talmud (here he brings the Talmud we just quoted)(Rosh Perek 2 Niddah)

It is now very clear that the MRs are making several assumptions for very clear reasons.

1. The reason for the separation after the first intercourse is because the Rishonim assumed that "most women do have bleeding from their hymen (at first intercourse)" Those are his words, not mine.
2.  The decree of Rav and Shmuel, according to everyone, was regarding actual blood from the first intercourse.  This is clear from the Rosh, and clear from the Gemara itself in the case of Rabbi Ammi and Rabbi Assi which we just quoted before.  Remember that the Rosh began by explaining the reason for the decree of Rav and Shmuel. He didn't understand why she should be considered a Niddah at all if the blood was clearly Dam Makkah (blood of a wound). Clearly the Rosh understood that Rav and Shmuel were discussing a case of actual bleeding!  The Rosh then explained that the laws regarding when we can assume it is hymenal in origin and when we must be concerned that it could be menstrual in origin are too complicated for the general public, especially for the "excited new husband" so they just decided to be stringent.
3. However, the Rosh THEN established that it was the decision of the later Poskim, like the Rosh himself, following in the footsteps of the Rashba, Ritva, Ramban etc..that because they assumed that most women bleed at first intercourse from their hymen tearing, that we should assume that every woman, even when blood is not found, should be considered a NIddah as well.

Let me be extremely clear.  The Rambam and the Rif and other earlier poskim said absolutely nothing about this new decree regarding a woman who has not seen blood separating from his wife.  The Rambam clearly stated, as we showed in the last post that this entire discussion is only relevant in cases where there actually was bleeding with the first intercourse.  Furthermore, this new stringency was not widely accepted by the rabbis of the time or the general population, as we see that the Ra'avad felt that we should be lenient, and that the Hagahot maimuniyot (HM) quoted rabbis at the time that still relied upon the "lenient" opinions. 

It is this opinion of the Rosh that eventually became codified into law by the Shulchan Aruch. First, the Arba'ah Turim in Yoreh Deah 193 summarizes his father the Rosh that we just quoted as law. Interestingly, unlike his usual pattern, the Tur does not quote the Rambam at all. The Beit Yosef, also in Yoreh Deah 193, brings a lengthy discussion of the opinions of the Rishonim. I simply cannot quote him here as it is quite lengthy. I do want to point out that the Beit Yosef (BY) begins with a lengthy discussion of the parameters of when hymenal bleeding is considered Niddah blood and when it is not, and whether or not it matters if she has already had a period or not had a period (Ra'atah or Lo Ra'atah).  This includes a really long discussion of the Rambam and the Rif who seem to feel that these differences apply nowadays despite the decree of Rav and Shmuel.  In the end, because the other authorities such as the Rosh we quoted above feel that all of this is too complicated for the average person, they interpret that the very reason for the decree of Rav and Shmuel was in order to avoid the need for some complicated and nuanced differentiations.  So the BY supports the Rosh in this as the explanation for Rav and Shmuel. 

However, after establishing that in all circumstances we are stringent like Rav and Shmuel and consider hymenal bleeding to be prohibited blood, the BY (YD 193:3,4 then deals with the question of what happens if they have the first intercourse and their is no bleeding.  Here he quotes the HM and the Ra'avad and the lenient opinions, but then states that since the majority of Poskim have been stringent, we must follow the stringent opinion.  I will emphasize here, that repeatedly throughout his discussion, both in his own words and in the quotes that the BY brings from other authorities, the reason for the stringency is because they assume that most women will have hymenal bleeding at the time of their first intercourse.  This point is absolutely crucial for the remainder of our discussion in this thread.

Needless to say, when the BY codified this law in the Shulchan Aruch YD 193, he codifies into law that regardless of whether or not there is bleeding, one must separate from his wife after the first intercourse.

This is not the end, the lenient opinions of the MKs are going to pop up again, though the authority of the SA have now dealt these opinions a severe blow. 

In our next post, we will trace discuss the Ramah and how this influenced the actual experience of our young brides and grooms today. Hopefully, we will be able after that to present a new Halachic paradigm, based on rationalist Halachic principles.