In this week’s parsha we have the pasuk which says: “If your brother, the son of your mother, or your son, or your daughter, or the wife of your lap, or your friend that is as your own soul, entice you secretly, saying: ‘Let us go and serve other gods,’ which you have not known, neither you nor your fathers.” (Devorim 13:7):
Chazal (Kiddushin 80b) derive from the above pasuk a remez [hint] to the prohibition of yichud [seclusion]: “Rabbi Yochanan said in the name of Rabbi Yishmoel: ‘From where is there a hint to the Torah to [the prohibition of] yichud? As it states: ‘When your brother, son of your mother, tempts you;’ does the son of a mother tempt but the son of a father does not tempt? Rather, to teach you: a son may be secluded with his mother, and it is forbidden to be secluded with all of the [other] prohibited unions in the Torah.”
The halachos of yichud are quite complicated and we will not be able to encompass all its details in the ensuing write-up. However, we will seek to define the basic parameters of the prohibition, and to demonstrate how these parameters are expressed in the specific laws of yichud.
De’O’raisa or Derabonon?
Most Rishonim agree that the basic prohibition of yichud is a din de’O’raisa, as implied by the Gemara (Avodah Zarah 36b; see Devar Halachah 1, who cites the rulings of Rishonim that demonstrate this). Although the Rambam (Hilchos Issurei Biah 22:1) writes that the prohibition of yichud is derived from divrei kaballah, many (including the Vilna Gaon) write that even this should be understood as a din de’O’raisa, though some write that according to the Rambam it is only a issur derabonon.
To the basic prohibition of yichud, Chazal added rabbinic enactments: “On a de'O’raisa level, [seclusion with] a married woman is prohibited. Dovid then came, and enacted a prohibition on seclusion with an unmarried woman; the talmidim of Beis Hillel and Beis Shammai enacted a prohibition even on seclusion with a non-Jewish woman.”
On a de’O’raisa level (according to most Rishonim), only seclusion with a Torah ervah, a woman whose union is prohibited by Torah law, is prohibited. Chazal added to this that even seclusion with an unmarried woman, and seclusion with a non-Jewish woman, is prohibited.
The Binas Adam (Beis HaNashim 16) writes that although the Mishnah (Kiddushin 80b) writes that it is forbidden for one man to be in seclusion with two women, this prohibition is only rabbinic. On a de’O’raisa level, the prohibition is limited to one man and one woman, as the case of a son and his mother derived by the Gemara. Where two women are present, the prohibition is only rabbinic.
The Shu”t Chavas Ya’ir (no. 73) likewise writes that on a Torah level, only “full seclusion,” meaning the seclusion of one man with one woman, is prohibited. Beyond this, where one man is secluded with two women, or two men with one woman (where the men are promiscuous), the prohibition is rabbinic (see also Shu”t Maharsham Vol. 3, no. 153, who writes even the seclusion of one man with two women is prohibited on a de’O’raisa level, though there is room to debate the proofs he mentions; see Divrei Sofrim Yichud 1, Emek Davar 9).
Yichud: An ‘Essential Prohibition’
Based on the fact that the prohibition of seclusion is mandated by the Torah, Rav Shach (Avi Ezri, Issurei Bi’ah 22:12) explains that according to Rashi (Kiddushin 81a) the prohibition is an ‘essential prohibition.’ This means that the Torah does not merely wish to distance a person from the possibility of forbidden marital relations, but actually wishes to prohibit the seclusion of a man and woman whose union is forbidden.
When a prohibition is enacted by Chazal, the prohibition is only a ‘fence’ meant to distance a person from forbidden relationships, however, being that it is a Torah prohibition, the prohibition is not merely a fence, but rather an ‘essential prohibition.’
Based on this definition, Rav Shach explains that the leniency of “her husband is in the town” (ba’alah b’ir) (Kiddushin 81b), which states that where a woman’s husband is in town there is no prohibition of seclusion with the woman, is limited (according to Rashi) to the rabbinic prohibition of yichud. With regard to the prohibition enacted by Chazal, which is designated to distance a person from sin, a woman’s fear of her husband is sufficient to ensure that no sin will result. With regard to the Torah prohibition, this is not sufficient, because the prohibition of seclusion is of an ‘essential’ nature.
This ‘essential prohibition’ requires some elucidation. If there is no concern for forbidden relationships, why does the Torah prohibit the seclusion itself? Rav Shach addresses this point, and writes as a possibility that the seclusion leads to forbidden thoughts, as mentioned by the Rambam (Hilchos Issurei Bi’ah 22:20).
Prohibition as a ‘Protective Fence’
The Chazon Ish, in his hago’as to Avi Ezri (printed at the back of the sefer), disputes this position, and writes that the prohibition of yichud is not an ‘essential prohibition,’ but rather means to form a ‘protective fence’ around the prohibition of forbidden relationships. This principle is implied by the wording of the Rambam (22:6, as quoted by the Shulchan Aruch): “It is forbidden to be in seclusion with a forbidden union, for this causes forbidden relationships.”
The Chazon Ish proves the point further from the specific halachah of seclusion with a niddah. The Gemara writes that there is no prohibition of yichud with regard to a man and his wife. Even during the niddah period, it is permitted for husband and wife to be in seclusion, because “the Torah attests that ... even a fence of roses will not be broken”—there is no need for the ‘extreme’ measure of yichud to separate between husband and wife.
Tosfos esxplain further that the reason for this is the general permission of marital relationship between husband and wife: because they are able to engage in permitted marital relations, they will not come to sin. This rationale does not apply in a case of a husband who has not yet consummated his marriage, and when a kallah is in a state of niddah at the time of her marriage, there is thus a prohibition of yichud with her husband (Shulchan Aruch, Even HaEzer 22:1).
The Chazon Ish thus proves that the prohibition is not an ‘essential prohibition,’ for as such, there would be no difference between a niddah before the consummation of the marriage, and her status after the marriage was already consummated. Rather, this law indicates that the prohibition is a ‘protective fence’ to ensure that the sin of forbidden marital relationships will not be transgressed. For a husband and wife, there is no concern, provided that the marriage has been consummated.
It is important to note that even Rav Shach only wrote his approach (of an ‘essential prohibition’) according to Rashi. According to the Rambam, which is the halachic consensus (though some poskim write that one should heed the opinion of Rashi, as will be noted below), the leniency of “her husband is in town” applies even to Torah mandated yichud. Furthermore, in instances where there is no concern for forbidden marital relations (as discussed below), there is therefore possible room for leniency in yichud.
The Elderly and the Impotent
The Tzitz Eliezer (Vol. 6, no. 40, chap. 22, sec. 8) writes that based on the above wording of the Rambam, which implies that the prohibition of yichud means to distance a person from forbidden relationships, it follows that there is no prohibition of yichud for somebody who suffers from impotency, or somebody so elderly that there is no concern for transgression. He continues to prove this halachah from the rulings of a number of poskim.
In a separate Teshuvah (Vol. 7, no. 46, sec. 2), Rabbi Waldenberg quotes a letter that he was sent by Rav Elyashiv on this topic, in which he disputes the position, arguing that seclusion is prohibited even for somebody for whom there is no concern for transgression. Rabbi Waldenberg defers the proof mentioned by Rav Elyashiv, and adds (in a third Teshuvah, Vol. 12, no 67, sec. 2) a proof to his ruling from a teaching of the Chasam Sofer (Derush to Chanukah 5564) whereby Yosef was not concerned to be in seclusion with the wife of Potiphar, because he considered himself incapable of marital relations.
R’ Moshe (Igros Moshe, Even HaEzer Vol. 4, no. 65, sec. 10) agrees in principle with this leniency, but writes that in general, yichud remains forbidden even for an extremely elderly person, because even the desire of the old and infirm can sometimes be awakened (as demonstrated by the Gemara, Kiddushin 81b). A similar ruling is given in Devar Halachah (Appendix to Siman 2, no. 9), citing from the Chazon Ish, and adding that the Divrei Malkiel (Vol. 4, no. 102) ruled similarly.
Only with regard to somebody who is clinically impotent does Rav Moshe rule that there appears to be no prohibition of seclusion.
There is also a famous story with R’ Shimon Shkop which highlights this point: When Rav Shimon Shkop was sick in hospital during his later years an elderly nurse came to sleep in the same room. There was no one else in the room but he still jumped up and left the room. His talmidim asked him why he did that, after all he was old and sick, and she was old. Rav Shimon replied: “The yetzer horah will make me young and her young so that I can sin, so I fled immediately to avoid sinning”.
The Leniency of a Husband in Town
A very important and pertinent leniency in yichud, which we have already mentioned above, is the case of a woman whose husband is in town. This leniency is stated by the Gemara (Kiddushin 81a) “Rabbah stated: If her husband is in town, there is no concern for seclusion.”
Rashi and Tosfos dispute the nature of the leniency. According to Rashi, when a woman’s husband is in town, there remains a prohibition of yichud, but it does not carry the same severity (there is no punishment of malkos). As noted above Rashi maintains (based on the explanation of Rav Shach) that even where there is no concern for forbidden relations, the prohibition of yichud remains in place.
Tosfos, however, understands that the leniency entirely permits seclusion, and the Beis Shmuel (22:12) writes that the wording of the Rambam and the Shulchan Aruch implies their agreement to this position.
Yet, R’ Wosner (Shevet HaLevi, Vol. 3, no. 180) notes that the Chelkas Mechokek and the Beis Shmuel mention the opinions of both Rashi and Tosfos, without conclusively deciding between them. Elsewhere (Vol. 5, no. 203, sec. 1), Rav Wosner writes that although the principle halachah follows the opinion of Tosfos, one should heed the instruction of Rabbeinu Yerucham, whereby “one who is modest must distance himself from ki’ur (an ‘ugly’ situation), even when her husband is in town.”
Libo Gas Bah
The Gemara qualifies the leniency, explaining that it does not apply to somebody who has a warm and cordial relationship with the woman in question (libo gas bah).
Examples of such relationships include:
- A woman whom a man has known as a child, and with whom he has grown up.
- A close family relative, such as a cousin with whom one has grown up.
- A close family friend.
- A co-worker, such as a partner.
- A therapist.
- A housekeeper or maid.
This significant qualification is ruled by the Rambam (22:12) and the Shulchan Aruch (22:8).
Rationale Behind the Leniency
According to Rashi (Kiddushin 81a), the rationale behind the leniency is that the woman fears that her husband will come in at any time. The Rambam and the Shulchan Aruch, however, write that the reason is that “her husband’s fear is upon her.” This does not imply a concrete fear that her husband will walk in, but rather that she feels a natural inhibition, in the knowledge that her husband is close by (Aforementioned Shevet HaLevi).
An important ramification of this machlokes [debate] is the question of large cities such as London or New York, where a husband can be ‘in town,’ yet his wife can know with confidence that he won’t be coming in for several hours. According to Rashi, in this case the leniency of a husband being in town will not apply. According to the Rambam, however, the presence of a husband in town ensures that “her husband’s fear is upon her,” and the leniency will apply.
For a husband at work in a distant place (albeit in town), the Shevet HaLevi is stringent, and adds that one should preferably follow the stringency of Rashi, whereby only the concrete possibility of a husband’s walking in can permit yichud.
R’ Moshe (Igros Moshe, Even HaEzer Vol. 4, no. 65, sec. 7) rules: “For those who work away from home, and spend eight hours at work, and a further two hours of travelling time, there is a prohibition of seclusion where it is not common to come home. However, for somebody who is self-employed, and can return home at will, there is no prohibition of seclusion.”
Halachic Details of the Leniency
The Pischei Teshuvah (22:7) cites a number of novel halachos in this matter from the Binas Adam:
- The leniency of a husband in town applies only when the wife is at home. If the wife is away from home, the presence of her husband in town does not permit seclusion. The reason for this is that the husband is not aware of her whereabouts, and therefore she does not fear him.
- Even if the husband knows the whereabouts of his wife, yet he gives her permission to be there, the leniency does not apply, because she does not fear him.
- This is all the more true where a husband gave his wife permission to be secluded or to speak intimately with another man. In this case, the husband’s fear is clearly not upon his wife.
These stringencies are based on understanding the leniency as being based on the concern that the husband will come home; if the wife is not home, there is no concern for the husband’s homecoming, and the leniency does
