Chazal created an institution of marriage for a Cheresh and Chareshes, even though no such concept exists according to Torah law.
How can they do that? Isn't there a Torah prohibition for people to live together without first effecting a torah-true marriage? Are Chazal uprooting the Isur of the Torah in an active manner (Kum va'Aseh) on a daily basis in this Takanah? The Gemara doesn't even mention Cheresh when it discusses whether Chazal can uproot a Torah prohibition in Yevamos 90!
I guess a similar question would apply to the Kidushin that was instituted for a Ketanah (Kidushei Mi'un).
Thanks!
Rabbi, Jerusalem, Israel
1) It seems to me that since we have a rule that Cheresh, Shoteh, and Katan are exempt from Mitzvos, it follows that one cannot say that a Cheresh and Chereshes are prohibited to live with each other without marriage, because a Cheresh and Chereshes are not held responsible for their actions. On the contrary, Chazal decided that it would be better for them to marry each other, as this will give them a stable life. If they would not be allowed to marry each other, they would end up living a less moral life.
2) A similar idea applies to the Kidushin of a Ketanah. A minor is exempt from Mitzvos. The Gemara in Yevamos (end of 112b) states that the reason why Chazal instituted Kidushin for her is so that she should not become Hefker. It would have been much worse if Chazal would not have made this Din.
Kol Tuv,
Dovid Bloom
This does not explain how a normal person can marry a Chareshes (or how a Gadol can perform Mi'un), as the Mitzvah is incumbent on the normal person.
1) See the Chelkas Mechokek on Shulchan Aruch (Even ha'Ezer 26:1) who writes that according to the Ra'avad, if a woman lives only with the same man, even though there is no Kidushin, this is only forbidden mid'Rabanan. The opinion of the Terumas ha'Deshen #209 is also that Min ha'Torah there is no prohibition against Z'nus with a single woman. Rebbi Akiva Eiger (in Hagahos) writes that this is also the opinion of Rashi in Berachos.
According to these opinions, we can say that since the prohibition of living together without marriage is mid'Rabanan, it follows that "Hem Amru v'Hem Amru" -- Chazal said that one must have Kidushin, but Chazal also instituted marriage for a Cheresh with a Pikachas or vice versa. Chazal have the power to do this since the original prohibition is also mid'Rabanan.
2) However, the opinion of the Rambam (Hilchos Ishus 1:4) is that anyone who has Bi'ah for Z'nus without Kidushin, recieves malkus Min Hatorah. So according to the Rambam, that zenus with a single woman is forbidden by the Torah, we still have to understand how Chazal could make an institution of marriage for a Cheresh with a Pikachas.
I wish to suggest that even if there is no kidushin, nevertheless the words of the Rambam indicate that the prohibition only applies if it is done for zenus; but if the Cheresh and Pikachas get married because Chazal told them to do so, they are not doing it for zenus, but on the contrary are trying to follow the teaching of Chazal, and therefore even according to the Rambam they are permitted to get married with this kidushin miderabanan.
Yasher Koach Gadol
Dovid Bloom
Kol Tuv,
Dovid Bloom