“Question: Is it correct that there is no issur of yichud for a man to be secluded together with a married lady whose husband is in town?
Introduction: The Shulchan Aruch (Even Ho’ezer Siman 22 se’if 8) clearly rules that there is no prohibition of yichud with a married lady whose husband is in town (referred to as “ba’alo bo’ir”). The Shulchan Aruch (ibid) explains that the reason for this is because a married lady is subject to natural apprehension [that her husband may find out, which will inhibit her from engaging in illicit behaviour].
We would like to discuss two aspects of this permissibility; is yichud allowed l’chatchilo with a married lady, and does it apply to all married ladies?
L’chatchilo or b’dieved: Both the Bach (Even Ho’ezer Siman 22 s.k. 7, d.h. “isho sheba’alo bo’ir”) and Beis Shmuel (Even Ho’ezer Siman 22 s.k. 12) infer from the wording of the Shulchan Aruch that it is completely permitted to be in seclusion with a married lady whose husband is in town (which is also the view of Tosfos Kiddushin 81a d.h. “ba’alo bo’ir”). However, Rashi (Kiddushin 81a d.h. “ba’alo bo’ir, as inferred by Tosfos) posits that the exemption of ba’alo bo’ir is only an exemption ex post facto from punishment, but it does not permit the seclusion in the first place. Although the Bach (ibid) writes that we rule in line with the view of Rashi (i.e. that it is in fact forbidden to be in seclusion with a married lady whose husband is in town) many major authorities (Radvaz volume 3 response 481; Yam shel Shlomo Kiddushin perek 4, 22; Levush; Chidah in Shiyurei Berocho, Kitzur Shulchan Aruch Siman 152 s.k. 4, Tchebiner Rav in Dovev Meishorim volume 1 response 5; Chazon Ish quoted by Dvar Halocho perek 1 se’if 5; Mishnas Hayichud – Rav Moshe Paniri) rule leniently and allow seclusion (l’chatchilo) with a married lady whose husband is in town.
Familiarity: The Gemoro in Kiddushin (81a) relates an incident about Rav Bibi who instructed that he should not be left alone with the wife of Rav Yosef. The Gemoro asks on this; what is the issue of yichud, even if they will be secluded this is a situation of ba’alo bo’ir? The Gemoro answers that the permissibility of ba’alo bo’ir does not apply here, because Rav Bibi and Rav Yosef’s wife were companions, and there existed a familiarity between the two (gas bo).
The Shulchan Aruch (ibid) rules that if the rapport between the married lady and the man she is secluded with is classified “gas bo” then it is prohibited for these two individuals to be secluded together, despite the fact that the lady’s husband is in town. (In other words, the permissibility of ba’alo bo’ir will not apply in a situation of libo gas bo, and we therefore revert to default yichud, which is prohibited.)
The examples given by the Shulchan Aruch of “libo gas bo” are if the two individuals grew up together (the precedent is the aforementioned Gemoro in Kiddushin), or if these two individuals are related. [Although the exact parameters of libo gas bo are not defined by Shulchan Aruch, it appears clear that there exists between these two individuals a certain familiarity that does not exist between two strangers.]
Summary:
• There is no prohibition of yichud with a married lady whose husband is in town (ba’alo bo’ir).
• Although it is not unanimous, the general consensus among the Poskim is that ba’alo bo’ir is allowed l’chatochilo. It would be prudent to act stringently wherever possible, and avoid relying on this leniency.
• However, if there exists familiarity between these two individuals (libo gas bo) the permissibility of ba’alo bo’ir does not apply.
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