{
"language": "en",
"title": "Rabbinic Authority IV",
"versionSource": "https://www.nli.org.il/he/books/NNL_ALEPH997009861531405171/NLI",
"versionTitle": "Rabbinic Authority: The Vision and the Reality, Urim Publications. Jerusalem, 2013",
"versionNotes": "",
"actualLanguage": "en",
"languageFamilyName": "english",
"isSource": true,
"isPrimary": true,
"direction": "ltr",
"heTitle": "סמכות רבנית כרך ד",
"categories": [
"Halakhah",
"Modern",
"Rabbinic Authority Series"
],
"text": {
"Preface": [
"The present volume is the fourth in a series of volumes intended as an introduction to a subject perhaps unfamiliar to many – rabbinic authority in our halakhic sources. The subtitle, “The Vision and the Reality,” points to the themes being addressed in this work.",
"In addressing the “halakhic vision” of rabbinic authority, we will offer a systematic inquiry of Ein Tenai be-Nissu’in which was published in Vilna in 1930. This work is a compilation of letters composed by rabbinical figures who opposed the introduction of kiddushin al tenai (loosely translated as conditional marriage) for a prospective Jewish couple who were embarking upon marriage which was suggested as a solution to deal with freeing wives who subsequently were unable to receive a get from their husbands. Our inquiry will address the halakhic and meta-halakhic factors involved in rejecting the proposed formula for a conditional marriage authored by French rabbis in the late nineteenth century. Furthermore, based upon our review, we will understand the significance of the title of this work and the line of argumentation found in these letters which subsequently propelled a rabbinic rejection of twentieth century solutions proffering other types of kiddushin al tenai which were proposed to deal with the agunah problem.",
"Since we are dealing with “the world of issurim (prohibitions)” due to the halakhic concern of hezkat eishet ish (the status of a married woman) as well as other factors, authorities were unwilling to release a wife without her receiving a get from her husband and therefore rejected these proposals for implementing conditional marriages. Nevertheless, when dealing with monetary matters, generally speaking, Halakhah allows individuals including prospective spouses to determine their own monetary relationships, provided that the arrangement complies with a proper form, i.e., kinyan, and is not violative of any prohibitions such as theft or the interdict against taking ribbit (halakhic interest). Consequently, it is unsurprising that there is much discussion how to draft a proper prenuptial matrimonial property agreement. As such we focus our attention upon the proper formula to be employed when executing such an agreement and whether it can be executed prior to the engagement or prior to the marriage.",
"The ability of prospective spouses to contract is not limited to the drafting of a prenuptial marital property agreement. Should a prospective spouse renege on “a promise to marry,” will he/she be able to sue in a beit din for reimbursement of wedding-related expenses due to a breach of an engagement? Are gifts that were given in the anticipation of the marriage recoverable? These questions are discussed in chapter three of our monograph.",
"The marital relationship itself may be said to be a contract, albeit a very special contract which establishes “a personal status” based upon the willing consent of the parties. Should a Jewish man and woman marry, Halakhah attaches certain consequences to that status. Among the monetary consequences to being married is a husband’s obligation to provide support for his wife as well as his children. On one hand, spousal support and child support is examined in the Talmud. On the other hand, there is no Talmudic discussion whether a father is dutybound to pay for the medical expenses of his child. Despite the fact that this issue is only briefly analyzed among post-Talmudic decisors, in chapter four we were able to distill three different halakhic models for establishing a father’s duty to provide for reimbursement of his child’s expenses for medical assistance.",
"In chapters five and six, we deal respectively with how American law and Halakhah address the matter of meting out corporal punishment of children and the dynamics of the child custody decision making process as reflected in the decisions handed down by the Israeli rabbinical courts.",
"In chapter seven, in the wake of get recalcitrant husbands receiving a halakhically improper heter nissuin, permission to remarry without giving a get to their first wife, we present the underpinnings of the ruling of the late Rabbi Yosef Elyashiv z”l who permits the execution of a get zikui in the case of a husband who remarries another woman (without a proper heter nissuin – halakhic permission to remarry) without giving a get to his first wife.",
"The “reality” of rabbinic authority presented in this volume deals with one type of authority – the Jewish court, the beit din. The cases chosen for this volume entail excursions into the universe of “bittul kiddushin,” voiding a marriage which results in the wife being able to remarry without a get. According to Halakhah, dissolution of the matrimonial bond requires the voluntary agreement of both spouses and failure of one party to assent to to the divorce action precludes execution of the divorce. Under certain conditions should a husband be threatened to give a get and subsequently he consents to give it, according to most Poskim the resultant get is viewed as a get me’useh (a coerced get) and it is null and void and should she remarry any children sired from this relationship will be considered mamzerim (halakhic bastards). In short, Jewish divorce must be consensual. In the event that a get is not forthcoming from a husband, we address whether there are grounds to void a marriage of a woman to an apostate, to a husband who is incapable of copulation, a husband who engages in spousal rape and a husband who fails to provide support for his wife. Furthermore, we address whether there is a basis to void a marriage of a husband who suffers from delusional jealousy disorder, a husband who is physically abusive and/or emotionally abusive to his wife and/or children and a stepfather who engages in pedophilia with his stepdaughters. Finally, if a husband prior to the marriage contracted HIV and he failed to disclose this matter to his wife until after their marriage, is the wife permitted to continue to live with him and simultaneously request that her marriage be voided due to his mum gadol, major defect(hereafter: mum or defect)? Or if a wife knew prior to her marriage that her husband suffers from severe depression, is there any halakhic credence to her claim that after being married to him she suddenly discovers that she cannot tolerate the situation and wants to have her marriage voided? Finally, there may arise in a situation where it is our understanding and assessment that a wife would have never agreed to the marriage if she had been aware of the lot that would befall her, namely remaining an agunah forever. In such a situation, may the marriage be voided? In two cases we explain why a wife’s allegation that her husband failed to disclose prior to the marriage that her husband suffered from severe depression and contracted HPV will not serve as justifications for voiding the marriage. In our analysis, under certain conditions we apply the avenues of “kiddushei ta’ut” and “umdana” in order to void a particular marriage.",
"In chapter eight, we have included eight presentations, many of them inspired by reasoned opinions handed down as a dayan at the International Beit Din located in New York City. In each presentation, we offer a rendition of the facts of the case. Subsequently, there is a discussion of the halakhic issues emerging from the facts, followed by a decision rendered by the beit din panel. To preserve the confidentiality of the parties involved in these cases, all names have been changed, and some facts have been changed and/or deleted. To expand the reader’s horizons we have incorporated an introduction to chapter eight which elucidates the dynamics underlying the halakhic reasoning utilized in arriving at the various decisions presented there.",
"As we elucidated elsewhere, the majority of authorities argue that it is a nohag, a practice rather than a halakhic duty to enlist the support of an outside rabbinic authority (ies) prior to rendering a decision regarding marriage and divorce in general and voiding a marriage in particular. Recently, Rabbi Refael Shlomo Daichovsky, retired dayan from the Beit Din ha-Rabbani ha-Gadol in Yerushalayim published an essay wherein he contends that a credentialed beit din who has a track record of issuing piskei din, decisions is empowered to render a judgment without seeking outside rabbinic approval provided there has been a critical investigation of the halakhic sources as well as a thorough scrutiny of the facts.As he notes there is the Talmudic imperative that “a dayan must be guided by what his own eyes observe” and consequently, even if a second opinion questions the merit of the dayan’s argumentation since he has not participated in the actual rabbinical court proceeding he should rely upon the dayan’s position. Finally, contends Rabbi Daichovsky that the psak din is valid even if other rabbinic decisors dissent from its conclusion or if the ruling is in error. As long as we are dealing with a credentialed beit din (even hedyototh – laymen) that errs, “shelo ke’din” (in R. Gartner’s words), argues Dayan S. Tzvi Gartner though there is no mitzvah to accept the ruling from the perspective of the matter under deliberation by the beit din, nevertheless there is a mitzvah, a duty to adhere to the words of Torah scholars.",
"To state Rabbi Daichovsky’s posture differently, for those Poskim who refrain from seeking halakhic approval of their rulings prior to handing them down, implicit in their position is that a credentialed arbiter who is imbued with yirat shamayim (fear of heaven) is empowered to render a decision that may be at variance with a ruling handed down by any of his predecessors provided that the ruling is reflective of an analysis of applicable halakhic sources and based upon a scrutiny of all the facts. As such, it is readily understandable that the seeking of “an outside rabbinic opinion” by a credentialed beit din in order to endorse voiding a particular marriage is a nohag rather than a halakhic duty.",
"Chapter three has originally appeared in The Jewish Law Annual, chapter four has originally appeared in Dine Israel, and chapters five and six have originally appeared respectively in Tradition and in Israel Law Review. All of these published essays appear here in an expanded and updated form.",
"As we have shown elsewhere, there is an ongoing debate whether voiding a marriage is halakhically proper as a solution to “the plight of the agunah”. Offering us an intriguing interpretation of the Talmudic halakhic-philosophical statement “Elu ve-elu divrei Elokim hayyim” (lit. these as well as these are the words of the living God), Rashi of eleventh century France teaches us,",
"When the two rabbis of the Talmud disagree with each other concerning the Halakhah . . . there is no untruth here. Each of them justifies his view. One gives a reason to permit, the other gives a reason to forbid . . . It is possible to state “both speak the words of the living God”. At times, one reason is valid; at other times, another reason. For reasons change even in the wake of only slight changes in the situation.",
"In the wake of the increasing number of agunot both in our Orthodox Jewish and non-Orthodox Jewish communities, an agunah’s unwillingness to be extorted by her husband in order to procure her get, the lingering fear of an agunah to decide “to leave the fold” due to her plight and the contemporary inability in the Diaspora to physically coerce a husband to give a get represent in Rashi’s words “slight changes in the situation” which dictate the adoption of “the reason” which is permissive. As such, in circumstances where all attempts to procure a get for the wife fail, ”the reason” that ought to be ruling the day is to void the marriage based upon techniques which have been expounded in Halakhah dating back to the early thirteenth century.",
"Hopefully our presentation will educate our community regarding the parameters and scope of rabbinic authority in general and “shatter the silence” surrounding how rabbinic authorities and battei din (rabbinic courts) have dealt with bittul kiddushin in particular. In the wake of get recalcitrance, for those agunot who avail themselves of the services of a beit din who is willing to critically investigate the possibility of voiding a marriage, it becomes a life-defining moment for them. They deserve no less. As the late Rabbi Avraham Shapiro, former Chief Rabbi of Israel states,",
". . . . a beit din is obligated to pursue a (halakhic – AYW) solution in order that the wife does not remain an agunah.",
"A. Yehuda (Ronnie) Warburg",
"22 Kislev 5777",
"December 22, 2016"
],
"Part I; Rabbinic Authority; The Vision": {
"Chapter 1; An inquiry into the interaction of the halakhic and meta halakhic argumentation of Ein Tenai be Nissu'in (Vilna, 1930)": [
"An inquiry into the interaction of the halakhic and meta-halakhic argumentation of Ein Tenai be-Nissu’in (Vilna, 1930)",
"In 1884, legislation was enacted in France which established that its judges would address a marital dispute and should the spouse’s (or spouses’) arguments be valid reasons for executing a divorce they would be authorized to dissolve the marriage even against the husband’s will and the man and woman were free to remarry. In light of this new legislation of civil divorce and in the wake of instances where wives in the French community became agunot due to their inability to receive a get from their husbands, upon the counsel of Rabbi Eliyahu Hazan of Alexandria, Egypt, in 1887 some members of the French rabbinate introduced the solution of a conditional marriage where the husband would state to his spouse:",
"You are betrothed to me, should the civil judges divorce us and I will not give you a divorce in accordance to the religion of Moshe and Yisrael, this betrothal shall not be effective.",
"In short, the execution of this kiddushin al tenai, conditional marriage, obviates the need for a get.",
"Rabbi Michal Weil of France and formerly “Grand Rabbi” of Algiers suggested that wives would be considered halakhically divorced based upon a constellation of factors: namely the power of the rabbinate to annul the betrothal (hafka’at kiddushin), recognition of a civil divorce as well as reliance upon the opinions of Rabbi Akiva and Rabbi Shimon ben Gamliel which validated a Jewish divorce executed in non-Jewish courts. Various renowned rabbis from different lands including Chief Rabbi Zadok Kahn of Paris, Rabbi Elhanan Spektor, Rabbi Naftali Tzvi Berlin of Yeshivat Volozhin and Rabbi Meir Hildesheimer of Berlin, Germany, opposed the propriety of such a solution in writing. Due to strong opposition to these solutions from various rabbinical authorities, in 1907 at the general meeting of some of the members of the French rabbinate, without mentioning the Jewish divorce in the tenai, another conditional marriage was proposed which states that at the time of the marriage the prospective husband says to his prospective wife that she is betrothed to him on the condition that should she remain an agunah due to him after the civil judges divorced them the betrothal is void. Given Rabbi Weil’s endorsement of marriage annulment, the approval of the French conditional marriage by Rabbi Eliyahu Hazan, the passage of the newly drafted version of the conditional marriage of 1907, a 1924 Constantinople Beit Din proposal of a conditional marriage and the appearance of Rabbi Yosef Shapotshnik’s controversial writings in 1928 and 1929 which attempted to address the igun problem with the introduction of a new formula for conditional marriage and invoking the power of marriage annulment, one naturally would expect a rabbinic response. At the request of Rabbi Hayyim Grodzinsky, Rabbi Yehuda Lubetsky of Paris, France, accompanied by the assistance of Rabbi Moshe Weiskopf of Paris, France who collected over thirty letters from rabbinical authorities who rejected these solutions accompanied by the signatures of dozens of rabbis who opposed the tenai their response was published in 1930 in a book entitled Ein Tenai be’Nissu’in.",
"The purpose of the review of this book is to examine the halakhic and meta-halakhic reasoning memorialized in these letters regarding the merits of the French tenai and subsequently to understand the import and significance of the chosen title of this compilation of letters, Ein Tenai be’Nissu’in.",
"Addressing the propriety of the French conditional marriage, Rabbi Yosef Glicksberg aptly observes:",
"This is a very sensitive topic since in addition to the clear halakhic problems that have a basis in the Talmud and early Poskim (authorities – AYW), we find here moral issues of strengthening the Jewish family . . . and therefore there are teshuvot and letters of scholars of the generations that have been collected into the book Ein Tenai be-Nissu’in.",
"In short, upon analyzing a halakhic issue, one must distinguish between the views which stake out a position based upon their understanding of the mishnaic and talmudic sources as interpreted by post-talmudic authorities as well as the invoking of public policy (or some have labeled a meta-Halakhah principle) considerations of Halakhah. In other words, it may be that an arbiter sincerely accepts that a particular practice is permitted by the Poskim but nevertheless chooses to prohibit it due to the fact that it may create a hillul ha-Shem, a desecration of God’s name, may lead people to engage in other prohibitions, imbibes the practices of non-Orthodox movement (or movements), may undermine a certain revered halakhic institution or lead individuals to conclude that another practice which is prohibited ought to be permitted because it is similar to the sanctioned practice based upon medameh milta le’milta, analogical reasoning. Clearly, there is a need for an arbiter to distinguish between these two different dimensions when issuing a halakhic ruling lest he be in violation of bal tosif, adding to the Torah, lying, or misrepresentation of what constitutes Halakhah and what is halakhic public policy. Invoking such meta-halakhic considerations within the context of a psak, ruling, in the arbiter’s mind means that compliance with his judgment is obligatory rather than optional or supererogatory.",
"With that in mind, we will review the letters which have been memorialized in the book and discuss the lines of halakhic argumentation against the implementation of kiddushin al tenai based upon a scrutiny of the sources and rulings of our Poskim as well as the objection of this tool as a vehicle to deal with igun based upon halakhic policy considerations. To fully understand the substance of the opposition to the French conditional marriage, we will present how earlier Poskim addressed in other contexts the various issues raised by this proposed solution.",
"1",
"The threshold question is the propriety of such a tenai. In the Torah, we are taught that the husband writes a get and hands it to his wife. That being said, since the tenai withholds a husband’s right to refuse a get, is such a condition to be subsumed in the category of “stipulating against the Torah” and therefore will be null and void?",
"A baraita, a source from the time of Tannaim, cited in Talmud Bavli states the following:",
"[If a prospective husband states] I betroth you, on the condition that you have no claim against me for food, clothing or conjugal relations, she is betrothed and the condition is void, so states Rabbi Meir. Rabbi Yehudah states, private ordering (contracting out of a law found in the Torah) concerning monetary issues is valid.",
"For Rabbi Yehudah, the condition which seeks to release the prospective husband from his monetary obligations such as food and clothing is valid even though these duties are mandated by the Torah. On the other hand, seeking a release from a nonmonetary matter such as engaging in conjugal relations will not be recognized. Arguing with this position, Rabbi Meir contends that under all circumstances, even monetary matters, a prospective husband is proscribed from advancing such stipulations because in effect his request is either that the Torah obligation should be inapplicable to him or that he is requesting that upon the establishment of the marriage his prospective wife waive her right to these matters. Disagreeing with Rabbi Meir, for Rabbi Yehudah a wife can waive her right to monetary matters such as food and clothing but since abstaining from intimate relations entails “a tza’ar ha’guf,” pain to the body, a wife cannot waive such a matter. The common denominator between Rabbi Yehudah and Rabbi Meir is that private ordering via the execution of a tenai is proscribed in nonmonetary matters. Based upon the foregoing, the French proposal which is dealing with divorce which entails a matter of an issur, a prohibition (releasing a wife from a hezkat eishet ish, presumed status as a married woman), ought to proscribe any such private ordering in the form of tenai according to both Rabbi Yehudah and Rabbi Meir.",
"Moreover, the premise of the French tenai assumes that a wife will be free to remarry even if the husband is refusing to give a get. Such a premise is contrary to what is written in the Torah that a halakhic divorce is contingent upon a husband giving the get voluntarily rather than a ruling rendered by a civil court and therefore such a tenai which may result that a wife will be divorced against her husband’s will ought to be invalid.",
"Given that the Torah’s directive of “if she doesn’t find favor in his eyes . . . and he will write for her a bill of divorcement and put it in her hand” is undermined by the French tenai which empowers the civil court to issue a divorce even against a husband’s will, therefore such a condition is invalid in the eyes of Rabbis Lubetsky, Weiskopf, Friedman, Grodzinsky, Rappaport, Tenenbaum (known as Lomza Rov), Danishevsky, and Meir Simcha ha-Kohen, known by the authorship of his sefer (book) as Ohr Sameah.",
"Notwithstanding Rabbi Meir Posner who raises the possibility of prohibiting such a condition which results in a halakhic divorce without a get if a prospective husband conditions his marriage that he will divorce his prospective wife if he refuses to give a get at the time of the divorce, Rabbi Weil contends that a review of the talmudic discussions and post-talmudic rulings clearly sets down when a husband is free to contract out of certain marital duties and when he is prohibited to seek release from certain obligations vis-à-vis his wife. In effect, the husband is conditioning the marriage that his wife forgoes certain rights. A review of these rulings does not prohibit a prospective wife to marry her prospective husband on the condition that he will divorce her even if he refuses to do so at the time of the divorce. Consequently, Rabbi Weil argues, the proposed conditional divorce is in consonance with Halakhah and therefore ought to be valid.",
"In response to Rabbi Weil’s contention, Rabbi Lubetsky claims that in fact such a condition is in variance to the Torah and therefore invalid. Though Rabbi Lubetsky refrains from explaining his posture, the rationale which is already enunciated in Tannaitic and Amoraic passages is that the conditional kiddushin entails a matter of issur, prohibition, freeing a wife from the status of eishet ish, a married woman and consequently one cannot formulate such a condition. However, this rationale cannot serve as the sole justification for outlawing the use of a tenai. As we will see, even with regard to matters of issur such as divorce or halitzah, a conditional kiddushin will be allowed under certain circumstances. The focus of the objection to the proposed tenai lies elsewhere. A husband may request that a wife forego her rights prior to consummating the marriage, but he may not condition the establishment of the marriage on the condition that his wife has no such rights according to Halakhah. As such, we may apparently understand the rejection of the French conditional kiddushin which assumes that the husband is bereft of the right to refuse to give a get that will not be recognized due to its denial of the Torah directive.",
"However, despite the fact that Rabbi Posner’s words are presented as a possibility rather than as a staked out position, Rabbi Lubetsky in very trenchant terms characterizes Rabbi Posner as “a well-respected latter day Posek” and “one cannot reject his reasoning like straw.” Nonetheless, as he notes, Rabbi Posner alludes to the dissenting opinion of Rashba who recognizes the right of a prospective wife to consummate a kiddushin on the condition that the couple will divorce willingly at a future time which serves as the factor of Rabbi Posner’s reluctance to advance his thoughts as a full-blown position. Nevertheless, Rabbi Lubetsky contends that Rashba’s conditional kiddushin is factually distinguishable from the French conditional get. Whereas, in the Rashba’s case the condition states that she will be his wife for a prescribed duration of time and at the end of the time he may divorce her or not, in the French tenai there is no set time for the divorce and the divorce is dependent upon third parties or his wife rather than the husband. Since the execution of the get is predicated upon the fact that the husband authorizes the writing of the get and the French proposal assumes that the husband has not given such instructions (in fact, he refuses to give a get) therefore such a condition is contrary to the Torah.",
"Summarizing the argumentation of Rabbi Eliezer Berkovits, Rabbi Yehudah Abel aptly notes:",
"In the case of one who marries on the condition that he will divorce; the condition is not that he shall divorce against his will. No-one forces him to marry this woman and if he agrees to the condition (to divorce) because he wants the marriage, at least for a time, then he also wants to give the divorce because he wants the marriage. True, it may be that when it comes to giving the divorce he may have changed his mind and not want to give it but this is not at all clear at the time of the making the condition, and the Rosh has already ruled in section 33 of his responsa that so long at the time of making the condition it is not clear that the fulfillment thereof will be against the Torah such a condition is not “a condition against the Torah”. . . .
It is furthermore possible to say that even if we judge the situation from the point of view of that which obtains in the end, when he is not willing to divorce and only does so reluctantly, only to avoid the retroactive annulment of the marriage that also is considered “of his own free will.”",
"To state it differently, if the prospective husband would have conditioned the marriage upon refraining from writing the bill of divorcement and/or give it to her that would be grounds to invalidate the tenai and the marriage would be viewed as an unconditional one, requiring a get should the couple divorce. However, the French tenai states at the time of the marriage the prospective husband says to his prospective wife that she is betrothed to him on the condition that should she subsequently become an agunah due to him and the civil judges divorced them the betrothal is void. Contrary to Rabbi Lubetsky’s reasoning, here there is no attempt to uproot any Torah mandate and consequently the tenai ought to be recognized.",
"Secondly, lest one contend that the tenai creates a situation of a get me’useh, a coerced get, by dint of the fact that he agreed that his wife may be divorced against his will; nothing could be further from the truth. Firstly, nobody coerced the husband to set up this arrangement. It was his choice to propose the tenai and with the marital breakdown, he was not coerced to give a get. He could refuse and in light of the tenai which he established at the time of the marriage the marriage would be voided. Relying upon Tashbetz, as Dayan Yosef Goldberg, av beit din of Yerushalayim Regional Beit Din and an international expert on get coercion, states:",
"Since our Sages have revealed to us that get me’useh entails taking away his ability to decide and he is unable to decide whether to become divorced or not under such circumstances it is invalid . . .",
"Here, the French tenai is premised upon the husband’s ability to decide at the time of the execution of the condition regarding his divorce.",
"Whether one views the French conditional kiddushin as a bona fide condition or as “in variance to the Torah” ought to be resolved in favor of the former position since we are well aware that there are Poskim who validate a condition to the act of the kiddushin which precludes the possibility that should the husband die childless and he was survived by his brother, the brother is dutybound either to marry her (yibum – levirate marriage) or release her via the performance known as halitzah. By preempting this possibility, in effect the arrangement via the execution of the condition is seemingly contrary to the Torah and yet there are authorities who validate it. Aware of the fact that some Poskim such as Teshuvot Shevut Ya’akov 1:127 and Nahalat Shivah, Nusah Shtar Halitzah 22 recognize the execution of a kiddushin al tenai regarding yibum, Rabbis Lubetsky and Weisskopf argue that the matter of yibum is a unique situation due to the fact that it is unclear whether in fact the tenai will materialize (namely the yavam will be an apostate or he will disappear) and even if it happens, the condition transpires after the husband’s death. Moreover, though some Poskim validate a conditional marriage for the purpose of avoiding the possibility of a yibum situation with a yavam who is a mumar, an apostate Jew, petitioners who wrote to Rabbis Ya’akov Reicher and Meir Posner note that even in the absence of the tenai, according to some authorities there is no obligation upon the widow to marry her brother-in-law who is a mumar! Furthermore, Rabbis Hoffmann and Tenenbaum contend, without the execution of a tenai nobody will marry a man whose brother is a mumar and he will never be able to fulfill the mitzvah of procreation. As such, we may refrain from addressing the propriety of the tenai. On the other hand, the circumstances addressed by the French tenai are markedly different from a yibum situation. Namely, divorce is more likely to happen with a couple than yibum and the voiding of the marriage would transpire during the husband’s lifetime rather than after the husband’s demise.",
"Furthermore, if one delves into the parameters for permitting kiddushin al tenai in relation to the matter of yibum, one will better understand the propriety of the French tenai. Already Talmud Yerushalmi rules that if a prospective husband conditions his marriage that “upon my demise, she will not be required to undergo yibum (levirate marriage),” such a stipulation is invalid. As elucidated by Rabbi Shimon bar Tzemah Duran, better known by the acronym: Tashbetz, the Yerushalmi’s conclusion is due to the fact that such a tenai is at variance to the Torah’s explicit directive that upon the demise of a husband, his childless widow is obligated to engage in yibum. Many Sephardic decisors including Rabbi Yosef Karo oppose such a tenai.",
"Notwithstanding Rabbi Yisrael Isserelein’s view, Ashkenazic decisors concur with the mesorah found in Talmud Yerushalmi. Citing the Mahari Brin, Darkhei Moshe rules:",
"“Even though one cannot stipulate that she is not required to undergo yibum because ‘it is stipulating against the Torah,’ however if he betroths her with a double condition if she falls in front of a yavam” such a condition is valid.",
"Subsequently, Rema in his glosses of Shulhan Arukh repeats his ruling by stating:",
"[If a man] betroths a woman and he has a brother who is a mumar, he may betroth and stipulate a double condition that if she falls to an apostate mumar, she will not be betrothed.",
"In other words, in pursuance to the condition of Mahari Brin and Rema, we are not dealing with a condition being stipulated against the Torah. The husband has no intent to consummate a kiddushin that will nullify the institution of yibum. Rather the condition is linked to a fact pattern (rather than a Halakhah) namely that should he die childless, she should not have to marry his brother who is a mumar and such kiddushin will retroactively be voided. This distinction emerging from Rema’s works is subsequently affirmed by others.",
"Based upon the foregoing, the formulation of the French tenai is based upon a fact pattern rather than uprooting a Halakhah and consequently ought to be valid. In fact, in contradistinction to Rabbis Lubetsky, Weiskopf and others who claim that the French tenai was “contrary to the Torah,” in his letter, Ohr Sameah aptly notes that the above-cited parameters needed are obtained in the stipulation of a tenai regarding yibum and abstains from even addressing the merits of the French tenai from this perspective. The implication to be drawn from his silence is that the French tenai was properly drafted. In short, the permissibility of executing a tenai to address the issue of yibum to a man who is Torah-observant or a yibum to a man who is a mumar serves to corroborate that the condition is not contrary to the Torah and serves as proof that the French tenai is equally not in variance with the Torah.",
"2",
"Assuming that the French tenai does not entail “a stipulation contrary to the Torah,” if a tenai was executed during the kiddushin when the prospective husband gives a ring to his prospective wife in the presence of two eligible witnesses and the condition was not repeated at the time the couple engaged in nissu’in, marriage (which comprises hupah, the blessing recited under the canopy, yihud, seclusion and bi’ah, intercourse) the emerging question is whether the tenai still has validity or do we argue that the fact that the husband failed to repeat it at the time of nissu’in means that he waived the tenai and she requires a get? Addressing the case of a prospective husband who executed a tenai that he was betrothing a woman on the condition that she is not subject to vows which proscribe her from engaging in certain practices (or has no mumim, defects) and subsequently marrying him unconditionally without engaging in bi’ah, there is a controversy between Rav and Shmuel whether a get is required.",
"For Shmuel, there is an implicit assumption that a prospective husband insists that the tenai of kiddushin extends itself to the marriage and consequently there is no need to repeat the tenai at that time even prior to having intercourse. Consequently, in the event that unbeknownst to the husband his wife was subject to vows, the husband was engaging in be’ilat zenut, illicit intercourse. As such, in accordance to Shmuel, we don’t recognize the hazakah, presumption that a person doesn’t engage in be’ilat zenut.",
"On the other hand, in pursuance to Rav, the tenai must be repeated at the time of nissu’in. Consequently, should a prospective husband execute a conditional kiddushin followed by an unconditional marriage, the wife is required to receive a get if the tenai has been unfulfilled. Elucidating upon Rav’s view, Abaye teaches us that Rav recognizes the hazakah and in effect with the act of bi’ah the original act of kiddushin becomes operative. As such, in the wake of a conditional kiddushin followed by an unconditional marriage, the giving of a get is mandated if the tenai has not been fulfilled. In this fashion, one preempts the possibility that the relationship may be retroactively illicit should the tenai be unfulfilled and the marriage would be voided retroactively. Alternatively, since the man is fearful that his kiddushin may be retroactively voided and his intercourse will be construed as an act in promiscuity, consequently an unconditional nissu’in implies in accordance to Rav that he was moheil, he waived the tenai.",
"Significantly, Abaye contends that the requirement of mentioning the condition again at the time of the nissu’in for Rav is predicated upon the fact that he betroths a woman with a tenai that she isn’t subject to vows and then divorced her. He then decided to betroth her again and marry her without repeating the tenai. Subsequently, it was discovered that she has engaged in making vows. Under such circumstances, when a divorce transpires between the first kiddushin al tenai and the nissu’in, we assume that the husband’s intent is to engage in an act of kiddushin rather than illicit intercourse and no get is required. Similarly, should a man betroth a woman conditionally and subsequently nissu’in is consummated under the hupah, Rav claims that there exists a requirement to repeat the tenai at the time of the bi’ah lest the relationship be viewed as illicit and should the tenai not be recited again a get is required.",
"Given that we are dealing with a controversy between Rav and Shmuel, there is talmudic rule that in matters of issura, prohibitions, we follow the position of Rav. Therefore, in pursuance to the Talmud’s posture this reflects Rav’s view, and in accordance to Abaye’s understanding of his position, most Poskim endorse his posture that a get is required should the tenai fail to be repeated at the time of the nissu’in which is consummated subsequent to the execution of the kiddushin.",
"The proponents of the French tenai only require that the condition be recited at the time of kiddushin. Consequently, since normative Halakhah endorses Rav’s view that the tenai must be repeated upon bi’ah, it is unsurprising that Rabbis Lubetsky, Hirsch, Danishevsky and Shapiro contend that the French tenai needs to be repeated at that time. In fact, as we mentioned, Rabbi Hazan endorsed the French tenai but mandated that it be repeated again only at the time of nissu’in and yihud.",
"However, even if the French rabbis who supported the tenai would have mandated a repetition of the condition at the time of kiddushin, the opponents of the proposed solution to the igun problem lodged two additional reservations in their letters concerning the proposal. Firstly, given that the tenai ought to be repeated prior to the bi’ah, Rabbis Lubetsky, Weiskopf, and Ohr Sameah argue that there is a requirement of the presence of two witnesses who will affirm that the tenai was repeated. Since such a procedural requirement will not transpire, there will be no demonstrable proof that the condition was in fact repeated. However, in defense of the proponents of the French tenai there is Ra’ah’s view which is supported by other renowned authorities that since people are aware that the couple is living together, they serve as “anan sahadei” (lit. we are the witnesses) to the act of bi’ah. As such, it is sufficient that the tenai is repeated at the time of bi’ah and there is no need to have two witnesses present who attest to the act.",
"Secondly, if the husband proposes a conditional kiddushin and fails to mention the tenai at the time of the nissu’in, the wife requires a get even if the condition did not transpire. The assumption is that there is a presumption that the husband does not engage in promiscuity and he nullified the tenai at the time of bi’ah. Should the husband repeat the tenai at the time of nissu’in, in accordance with the above view the tenai is valid and noncompliance with this condition results in voiding the marriage. However, there is the view of Riaz that even if the tenai had been repeated again at the time of bi’ah, a get is required due to the fact that we presume that the love emerging from the final stage of bi’ah engenders a waiver of the condition! Based upon Riaz’s approach, Rabbis Lubetsky, Weiskopf, Danishevsky and Shapiro reject the French tenai or for that matter any conditional kiddushin/nissu’in due to the fact that the act of bi’ah will summarily nullify any previous condition. Aware that in matters of marriage and divorce (excluding igun matters), many authorities will factor into consider all opinions including a stringent minority view, Rabbi Danishevsky exclaims:",
"Though there are authorities who disagree with this [view – AYW] and argue that if an explicit tenai was stipulated at nissu’in and bi’ah it would be valid, who is capable to tip the scale against Riaz and Shiltei ha-Gibborim who cited him?",
"Clearly the scale can be tipped in favor of the authoritative Poskim whom we cited who reject such a position! What is driving and compelling Rabbi Danishevsky as well as the others to adopt this singular view of Riaz and Shiltei ha-Gibborim may be found in their respective letters which raise the concern for hezkat eishet ish, the presumptive status of being a married woman as well as meta-halakhic considerations. Invoking Riaz and Shiltei ha-Gibborim‘s opinions serves to avoid breaching the walls of davar she’be’ervah, a matter of incest. In fact, Rabbi Yehiel Weinberg contends that the adoption of this minority opinion by Rabbis Lubetsky, Weiskopf, Danishevsky and Shapiro was for the purpose of rejecting any igun solution based upon employing the technique of conditional marriage.",
"3",
"Assuming that the French tenai does not entail “a stipulation contrary to the Torah” and it is initially explicitly stated at the time of kiddushin and subsequently repeated during the various stages of nissu’in (namely hupah, yihud and bi’ah), there is a question whether in fact the proposed tenai in actuality is really deemed halakhically a condition.",
"To respond to this argument, we need to understand the following: Encyclopedia Talmudit states:",
"Every condition that a person stipulates, that if the condition transpires the action will take effect and if the condition is unfulfilled the action will not take effect, and the condition involves a matter that he intends to fulfill and is able to fulfill it, the act occurs through the fulfillment of the condition, and this is not dependent upon the Halakhah of bererah, retroactive clarification.
However, if he stipulates a condition that he is unable to fulfill, and during the time of the condition it is a doubt and the condition occurs by itself, this is dependent upon retroactive clarification.",
"To state it differently, the fulfillment of a condition is linked to an action whereas retroactive clarification involves the human will. For example, if a prospective husband states, “I will betroth this woman on the condition that I don’t have to support her,” given that the establishment of the kiddushin is linked to the man’s compliance with an action, namely refraining from supporting her, the betrothal is halakhically valid should he refrain from maintaining her. On the other hand, if at the time of the kiddushin the prospective husband states to his prospective wife that she is betrothed to him on the condition that should she remain an agunah due to him and the civil judges divorced them the betrothal is void since the condition is linked to a future event, namely the court’s rendering of a civil divorce. As such, based upon the halakhot of bererah as understood by Ramban, we understand that retroactively the ties of the couple which were established were one of pilagshut, concubinage rather than marriage.",
"Ascribing to Rambam that any relationship created outside of kiddushin is to be viewed as pilagshut and therefore prohibited, Rabbi Dovid Tzvi Hoffmann entertains the possibility that since the majority of marriages will not result in civil divorce and even in the few cases that they do the husband will give a get, therefore marital dissolution resulting in pilagshut will rarely occur. Consequently, given that there exists a safek, a doubt regarding the future of the marriage, Rabbi Hoffmann claims that some may contend that we follow majority rule and construe the ties as marital rather than pilagshut. In effect, the French conditional get ought to be construed as a bona fide condition rather than be governed by the halakhot of bererah resulting in retroactive pilagshut.",
"Implicit in this approach to validate the French conditional kiddushin, Rabbi Hoffmann argues, is that at the time of the kiddushin we are relying on the majority opinion that the marriage will be valid and will not result in pilagshut. However, Rabbi Hoffmann rejects this approach because the majority rule emerges in order to address a situation, be-di-avad, ex post facto namely to address an emergency situation when the husband refuse to give a get and therefore cannot be invoked le-khatehila, ex ante. In short, the French conditional kiddushin may result in retroactive pilagshut and therefore cannot be executed.",
"However, the foregoing presumes that the French tenai is governed by the halakhot of bererah. Notwithstanding Ramban’s distinction between tenai and bererah, following in the footsteps of Rambam, Ran, and others Shulhan Arukh contends that a condition that is linked to compliance with the human will is a bona fide tenai rather than subject to the halakhot of bererah. As such, the condition is valid and will in effect avert the dissolution of the marriage resulting in retroactive concubinage.",
"4",
"In short, based upon the foregoing presentation there is a well-trodden mesorah, tradition to validate certain aspects the French tenai. Aware that there is an abiding halakhic concern of hezkat eishet ish lest one permit a wife to remarry without a get which may result in the creation of mamzerut (halakhic bastardy), nonetheless Rabbi Hazan communicates his endorsement of the tenai to the French rabbinate in order to prevent mamzerut by unintentionally allowing agunot to engage in promiscuity due to their inability to receive a get.",
"On the other hand, our review has demonstrated that Rabbis such as Hayyim Soloveitchik and Dovid Friedman either explicitly or implicitly articulated their halakhic concern to preempt the emergence of the phenomenon of mamzerut should the tenai be validated. As such, some authorities contend we can well understand why some Poskim validated a tenai regarding yibum due to the fact that there is no concern of mamzerut in future generations. Absent a matter of yibum, when dealing with a divorcing Jewish couple we need to be concerned with proper marital dissolution lest the wife remarry and sire offspring which will be tainted by mamzerut. As such, the invoking of the tenai should be ineffective. Yet, in defense of the French tenai, one can claim that the validation of a conditional marriage has not only been applied to a yibum instance but equally to a deaf husband or a mentally dysfunctional one. As such, the tenai ought to be effective in the conventional case of a divorcing couple. Again, though as we have shown that there are seemingly grounds to validate the tenai, due to the halakhic concern for hezkat eishet ish and meta-halakhic factors the opposition was unwilling to validate the tenai.",
"Furthermore, in response to Rabbi Weil’s clarion call that we need to endorse the French proposal lest we cause “a hillul ha-Shem,” a desecration of God’s name, Rabbi Lubetsky retorts, do you think that “the Catholic religion adapts (its beliefs – AYW) to be in consonance with secular laws?” On the contrary, Rabbi Weil argues, the Catholic religion does not recognize the institution of civil divorce. As such we are performing a Kiddush ha-Shem, a sanctification of Hashem’s name if we retain our religious practices! Even assuming that there are grounds to validate the proposed conditional marriage, examining the hillul ha-Shem from a different angle, Rabbi Hoffmann contends that Reform rabbis will exclaim that the Orthodox rabbis have conceded that their laws are no good and the temper of the times cannot tolerate their observance. In effect, they will argue that for the Orthodox Jews the prevailing times are mightier than antiquated laws. Rather than create in his words “a hillul ha-Shem,” Rabbi Hoffmann asserts that the proposed conditional kiddushin al tenai should be rejected. Finally, obviating the need of requiring a get, for Rabbis Hoffmann, Breuer and Tovish, undermines the institution of marriage. For these three meta-halakhic considerations as well as others, there was strong rabbinic opposition to the proposed tenai and therefore their halakhic argumentation served as a vehicle to object to the proposed condition.",
"5",
"As we mentioned, based upon our examination seemingly there are halakhic grounds to validate the French tenai. However, as Rabbi Lubestsky notes, the tenai fails to address the rudimentary halakhic requirement that “the dissolving of the marital ties is incomplete, since the dayanim have to permit her to remarry . . .”",
"In the event that that there is a dispute between a Jewish couple whether there is a basis to dissolve their matrimonial ties or if a husband refuses to give a get or the wife is recalcitrant concerning accepting the get, it is incumbent upon a beit din of three or a rabbi to determine whether there are grounds to compel [assuming one is legally permitted to utilize such means], obligate, or recommend the giving and the accepting of a get. Pursuant to normative Halakhah, once such a determination has been handed down then and only then may a civil court enforce the rabbinic decision. Here, the French proposal of a conditional marriage presupposes that a civil court rather than a beit din is empowered to arrive at the determination that there are grounds for the couple to divorce. Such an arrangement is in contravention of Halakhah.",
"Moreover, the establishment of the act of marriage as well as the termination of the marital relationship through the execution of a get is grounded in the voluntary action of the couple rather than a judgment handed down by a rabbinical arbiter or beit din. As Torah states, “if she doesn’t find favor in his eyes . . . and he will write for her a bill of divorcement and put it in her hand” and with the advent of Rabbi Gershom’s legislation the writ of divorce must be accepted by her. As such, the French proposal not only advances the unacceptable idea that a non-Jewish court is the arbiter of the grounds for the Jewish divorce but as renowned Rabbis Friedman, Grodzinsky, Y. Epstein, Meir ha-Kohen, Tenenbaum and others contend, the proposed arrangement implicitly denies that the execution of the get is solely in the hands of both parties. In fact, in accordance with this proposal, the wife spearheads the marriage dissolution against her husband’s wishes. In effect, as noted with chagrin by Rabbi Meir ha-Kohen, the proposed tenai allows for the Jewish couple to be entitled to participate in the halakhically prescribed arrangement of a non-Jewish marriage where there is no mandate for a written divorce document and that either spouse may unilaterally decide to dissolve their matrimonial ties! The proposed tenai is the embodiment of nineteenth century French law whereby it is the state not the petitioning party (in this case the wife) in a divorce action who dissolves the marriage.",
"For the above reason alone, there is no basis for recognizing such a kiddushin al tenai. Whereas, concerning the other issues relating to the tenai there is a mesorah to validate it, however, absent a beit din directive to recommend or obligate a get, there are no grounds to recognize the proposed condition which empowers the sole involvement of the civil court in the halakhic divorce process.Consequently, it is unsurprising that approximately seventy five years later, following in the footsteps of the proponents of the Kushta tenai, Rabbi Eliezer Berkovits’ proposed tenai is predicated upon the involvement of the divorcing parties rather than the participation of a civil court.",
"6",
"The final issue is what was the thrust of the opposition to the French tenai? Were the Poskim opposed to the particular tenai due to certain halakhic shortcomings or was there a principled rejection of recognizing any tenai regarding nissu’in? Clearly, a cursory review of the applicable halakhot memorialized in certain views found in Ketuvot 73b, 74a, Yevamot 15a, and Bava Kama 110b validate the implementation of a tenai under certain prescribed conditions. Hence, it is unsurprising that in a series of three letters written during the years 1912, 1928–1929, the renowned Rabbi Hayyim Ozer Grodzinsky explicitly states that his rejection of the French tenai is that there is no basis to introduce any tenai in the format of a takanah, rabbinic legislation concerning marriage. To state it differently, halakhically kiddushin al tenai is a possibility, however, to suggest it as a global solution in the form of a takanah for marriage annulment is prohibited. In fact, Rabbi Hayyim Ozer Grodzinsky accompanied by Rabbi Friedman explicitly note that their opposition to the French tenai was due to the fact that the obligation of divorce was left in the hands of the civil court. In other words, should the tenai have passed halakhic muster, in terms of a tenai, it would have been validated. However, even if the tenai would be recognized, due to the fact that the tenai was being presented as an avenue to annul a marriage (hafka’at kiddushin), it found disfavor in the mind of Rabbi Grodzinsky.Decades later, Rabbi Menahem Mendel Kasher equally understood that the rejection of the French tenai was grounded in the opposition of introducing the tenai as a vehicle to annul marriages.",
"Nonetheless, in Ein Tenai be’Nissu’in, there is a letter authored by Rabbi Yehiel Michel Epstein, known for the authorship of his book Arukh ha-Shulhan, who states that the proposed condition runs afoul of the Talmudic directive “ein tenai be’nissuin”. And in fact, the chosen title of the collection of letters which is under review here is Ein Tenai be’Nissu’in. Seemingly, endorsing this Talmudic mandate means that Halakhah rejects kiddushin al tenai. And Rabbi Grodzinsky agreed that “ein tenai be’nissuin.”",
"However, as we mentioned, the Shulhan Arukh recognizes the implementation of kiddushin al tenai. And in fact, discussion of this technique is strewn throughout the pages of other sifrei psak (loosely translated as codes) and she’eilot u-teshuvot (responsa). In fact, Rabbi Moshe Sofer, a leading Posek for early nineteenth century European Jewry introduced his own text for a kiddushin al tenai! Moreover, explicitly or implicitly following in the footsteps of Tosafot, some Poskim understand the aforementioned Talmudic mandate to mean that bittul kiddushin, voiding a marriage via the tool of conditional marriage is infrequently used rather than proffering a halakhic ruling prohibiting its use. Other authorities understand the statement “ein tenai be’nissuin” as a Halakhah to be utilized in terms of resolving a particular issue rather than a Talmudic ruling that a conditional marriage is to be outlawed under all circumstances. For example, addressing earlier attempts to permit a conditional marriage, Rabbi Yosef Henkin states:",
"Ein tenai be’nissuin is a clear Halakhah and finds support upon firm foundations that will not collapse . . . a condition is effective at the time of kiddushin and not at the time of marriage and only (valid – AYW) at the time of intercourse.",
"Yet, we need to understand why the title chosen for this collection of letters was Ein Tenai be’Nissu’in. Firstly, as noted by Rabbi Grodzinsky as well as Rabbi Menahem Kasher, given that authorities are not empowered today to annul a marriage in these circumstances, consequently the proposed conditional marriage which in part is based upon hafka’at kiddushin is ineffective. To state it differently, should the tenai fail to be fulfilled, seemingly the rabbis are empowered to annul the marriage. As such, the title was chosen to communicate to the community that annulment may not be invoked in the wake of tenai noncompliance.",
"Secondly, as we noted in our introduction, one of the events which precipitated the publication of Ein Tenai be’Nissu’in in 1930 is the 1924 Constantinople Beit Din proposal of conditional marriage known as the “Kushta tenai ”. Approximately 20 years after the appearance of the French proposal, rabbis of Istanbul suggested a formula for a conditional marriage for the purpose of dealing with matters of igun in their community. A 58-page treatise entitled Mahberet Kiddushin al Tenai published at that time outlined the basis for their proposal. In the wake of instances of agunot and the concomitant fear of promiscuity, they proposed retroactive voiding of the marriage if the husband abandoned his wife for a lengthy period of time, or if he became mentally dysfunctional or contracted a contagious disease, or if he refused to comply with a beit din judgment of divorce or if the wife wanted to have halitzah from a yavam who disappeared or a recalcitrant yavam. Should any of these conditions materialize, the tenai executed between the couple authorized the beit din to annul the marriage and the annulment was based upon the agreement of the benei ha’ir (the representatives of the community) who had rabbinic authorization to be mafkir (expropriate) the ring of the kiddushin and thus dissolve the marriage. Given that the husband would swear never to cancel the tenai, the condition was stated at the time of the kiddushin and hupah ceremony and did not need to be repeated at the time of yihud or bi’ah.",
"Whereas, as we have seen that absent the decision of some members of the French rabbinate to authorize the civil court to determine the merits of becoming divorced there was a well-trodden mesorah to validate other portions of the proposed tenai. As such, one may have expected that the Kushta tenai which empowered a beit din rather than a civil judicial forum to establish whether there are grounds for the divorce would have received maximal halakhic approval from rabbis who were uninvolved in the drafting of the tenai or minimally would have submitted constructive criticism to amend the tenai to pass halakhic muster. In fact, the rabbis who composed Mahberet Kiddushin al Tenai not only articulated many of the identical authoritative expositions that were advanced to defend the French tenai but offered numerous other lines of argumentation to buttress their position that the Kushta tenai was a valid technique to address the matter of igun in their community.",
"Though some authorities endorsed the Kushta tenai, there were a few Ashkenazic and Sephardic authorities who opposed the Kushta tenai on substantive halakhic grounds as well as for pragmatic and meta-halakhic considerations. However, except for a portion of Rabbi Ya’akov Toledano’s criticism which appeared during the same year of the appearance of Ein Tenai be’Nissu’in the other reactions appeared after the 1930 publication of this collection of letters.",
"Now we can better comprehend the selection of the title of this compilation – Ein Tenai be’Nissu’in. Despite the fact that our review of these letters indicates that the criticism which was elicited was a frontal attack upon the merits of the French tenai without offering constructive avenues to propose a halakhically bona fide condition, yet as we noted earlier for Rabbi Yehiel Weinberg the title which was chosen for this collection was chosen to communicate the impropriety of invoking any kiddushin al tenai to solve the agunah problem in the nineteenth century French community. The appearance of the Kushta tenai was the wakeup call that there is an acute and dire need to understand that the meta-halakhic considerations of undermining the institution of marriage, hillul ha-Shem, and ideological assimilation as well as the halakhic concern for hezkat eishet ish are hanging in the balance again. Yes, there may be grounds halakhically to validate the Kushta proposal, a tenai which clearly resonated halakhically in contradistinction to the French tenai, but at the end of the day the message was clear: “ein tenai be-nissuin.” For Rabbi Grodzinsky, the appearance of the Kushta tenai was a kol korei, a clarion call to instruct that the musar haskel, the halakhic-moral lesson derived from the proposed French tenai is that hafka’at kiddushin was neither an option in the past nor an option for the present and future. In effect, even though the Kushta tenai may be proper in terms of the halakhot of tenaim, conditions; nonetheless, it was argued that we must reject its use since the proponents of the tenai secondarily legitimate its use based upon the technique of hafka’at kiddushin. Consequently, the Kushta tenai ought to be banned. Others opposed the Kushta tenai on its own merits in light of its compliance with hilkhot tenaim.",
"On the other hand, the title of the compilation Ein Tenai be’Nissu’in was chosen for two reasons: Firstly, to voice an objection to recognizing the tool of hafka’at kiddushin. Secondly, even though the primary focus of the letters was to elicit criticism of the merits of the French tenai, nevertheless, due to the halakhic concern of the hazakah of eishet ish as well as certain meta-halakhic or public policy considerations, we must conclude that “ein tenai be-nissuin” even relates to other tenaim including the Kushta tenai. Notwithstanding the problematic nature of introducing the French civil court as an integral part of the get process, it is clear that the other arguments advanced against the French tenai would be equally applicable to many other tenaim proposed by others including the one suggested years later by the rabbis of Istanbul and Rabbi Eliezer Berkovits. To state it differently, had the opposition focused solely on rejecting the French tenai due to the role played by the civil court, this line of argumentation would have sufficed to marginalize the proposed French tenai. The fact that they advanced additional arguments against the tenai proves that the halakhic concern of eishet ish and meta-halakhic factors were in play here which were introduced in order to convey the message “ein tenai be’nissu’in.” Though their argumentation clearly is based upon a mesorah, as we have demonstrated there are equally other persuasive mesorot which may validate other tenaim. The fact that the opposition chose to invoke opposing traditions indicates that a halakhic concern for the hazakah of eishet ish and meta-halakhic factors were at work here. Even prior to the published rabbinic opposition to the Kushta tenai, the utilization of the tenai was summarily banned with the publication of Ein Tenai be’Nissu’in. Similarly, though Rabbi Henkin offered another solution which entailed in part the use of a conditional marriage, due to the appearance of Ein Tenai be’Nissu’in, he understood the import of its publication and retracted his proposal. Finally, prior to presenting his meta-halakhic and halakhic opposition to the kiddushin al tenai proposed by Rabbi Ben Tzion Uzziel, the initial argument advanced by Rabbi Shlomo Zevin is to state that even if his suggestion is different from the French tenai, the compilation of Ein Tenai be’Nissu’in precludes the introduction of a different tenai. Though Rabbi Uzziel’s suggestion diverges from the French tenai, in Rabbi Shlomo Y. Zevin’s words “it is of no importance” whether the proposal differs from the French tenai or not.",
"In conclusion, since the appearance of Ein Tenai be’Nissu’in, there have been over ten different proposals for introducing conditional marriage as a solution for the matter of igun. Some of these solutions have been summarized in 2000 in a series of articles entitled Ein Tenai be’Nissu’in. Notwithstanding the practical reasons for opposing the Kushta tenai and rejecting the Kushta endorsement of hafka’at kiddushin, during the 1930’s after the appearance of Ein Tenai be’Nissu’in Rabbi Shmuel Hillman, Av Beit Din of London Beit Din and father-in-law of Rabbi Yitzhak Herzog invokes various arguments including the Talmudic statement “ein tenai be-nissuin” to delegitimize the integrity of the Kushta tenai. Whether the rationale of “ein tenai be-nissuin” was articulated or not concerning these proposed tenaim, their fate was identical. The majority of these proposed solutions neither were implemented globally or even locally nor were the subject of systematic and extensive critical review. For example, in 1966, Rabbi Berkovits published a thorough analysis of kiddushin al tenai and explained in detail how his proposal differs from the French tenai. In particular, unlike the French tenai which empowered the civil courts to play a decisive role in the get process, in his solution he elucidates how the beit din assumes paramount importance. Yet, here again, notwithstanding Rabbi Menahem Kasher’s article published almost a half century ago and Rabbi Yehudah Abel’s recent comments published in 2011 regarding Rabbi Berkovits’ contribution, since the appearance of Rabbi Berkovits’ proposed solution in 1966, to the best of our knowledge there has been no systematic critical inquiry into the merits of his suggestion.",
"In short, the publication of Ein Tenai be’Nissu’in in 1930 and the appearance of the series of these articles in 2000 entitled Ein Tenai be’Nissu’in serve metaphorically as bookends for the issue of conditional marriage dating back to the French tenai of 1887.",
"In other words, kiddushin al’ tenai in any shape or form may not be advanced as a solution to resolve the plight of the agunah. Nonetheless, relying upon the text of kiddushin al tenai proposed almost two centuries ago by Rabbi Moshe Sofer,known by the acronym Hatam Sofer the late Rabbi Yehuda Amital, Rosh Yeshiva of Yeshivat Har Etzion in Eretz Yisrael employed the technique of kiddushin al tenai at least two times to address potential marital issues of three marrying couples. Do we continue to follow the halakhic public policy which began with the publication of Ein Tenai be’Nissu’in in 1930 and rebuff any proposal of kiddushin al tenai despite a mesorah of rulings in sifrei psak and teshuvot which permit the deployment of kiddushin al tenai under certain conditions or do we follow in the footsteps of Rabbi Sofer’s solution, those who proposed the Kushta tenai, the proposed tenai suggested by Rabbi Berkovits and Rabbi Amital and attempt to address the agunah situation? Do we ascribe to Rabbi D. Hoffmann’s view that any proposal for kiddushin al tenai ought to be respected only if it has been suggested by a renowned rabbinic authority that is erudite in this realm of Halakhah? Do we subscribe to the opinion of Rabbi Kook that any proposed kiddushin al tenai must be approved by renowned and erudite rabbinical authorities? Or do we continue “to bury our heads in the sand” and proclaim ein tenai be-nissuin without initiating a critical inquiry into the issue of kiddushin al tenai with the avowed purpose to hopefully, be’ezerat Hashem receive halakhic acceptance of a proposed kiddushin al tenai by renown authorities of the Torah observant Jewish community?"
],
"Chapter 2; The propriety of certain types of prenuptial property agreements": [
"The propriety of certain types of prenuptial property agreements",
"Describing the three-fold halakhic classification of the matrimonial property system, the late Ben-Zion Schereschewsky, a leading expert in halakhic marriage law and former Israeli Supreme Court Justice writes:",
"Dowry or ‘nedunyah’ means all property of whatever kind brought by the wife to the husband upon their marriage . . . those assets of the wife which she of her own free will entrusts to her husband’s responsibility. . . .”Nikhsei tzon barzel” (lit. “the property of iron sheep”) is a term derived from the name of a transaction in which one party entrusts property on certain terms, the latter undertaking responsibility . . . for return of the capital value of the property as at the time of his receipt thereof . . . Upon dissolution of the marriage, this obligation of the husband is governed by the rule that any appreciation or depreciation in the property is his . . . Melog property is property of which the principal remains in the wife’s ownership but the fruits thereof are taken by the husband, so that he has no responsibility . . . in respect of the principal, both its loss and gain being only hers, and upon dissolution of the marriage such property returns to the wife . . . This category embraces all the property of the wife falling outside the category of nikhsei tzon barzel – save for property of the kind described in the next section – whether brought by her at the time of entering the marriage, or acquired thereafter, e.g. by way of inheritance or gift . . . A third category is property of the wife concerning which the husband has no rights at all, neither as to the principal nor the fruits thereof. This includes property acquired by her after the marriage by way of gift, the donor having expressly stipulated that it be used for a specific purpose . . . or that it be used for any purpose of her choice without her husband having any authority . . . or property given to her as a gift by her husband.",
"Although marriage does not affect a husband’s property, a wife’s property is impacted by marriage. Though the title to the wife’s property (movables and immovables) and tzon barzel property of immovables resides with her, the husband has exclusive rights to its management, income, and profits, to be used for “the comfort of the home.”",
"The question arises whether there can be a prenuptial agreement whereby the property arrangement may be modified. Assuming such a possibility exists, at what juncture in time may such an agreement be finalized?",
"Let’s focus upon the wedding ceremony, the event that established the marriage between the couple. To understand the background and building blocks of this practice, we need to offer some halakhic background. Recognizing that marriage consists of two separate acts, called kiddushin (i.e. act of halakhic engagement without cohabitation) and nissu’in (marriage with cohabitation) respectively, Rabbi Norman Frimer and Rabbi Dov Frimer note:",
"In practical terms, kiddushin as the primary state of Jewish marriage can be . . . normatively constituted through the presence of five halakhic elements . . . At the helm stands kavanah: intention. But intention for what? Two divergent directions emerge . . . According to one authority, the intent of the couple must be for at least the most minimal and natural characteristics of the marital experience . . . That decision, however, must also include the stipulation that the wife shall be exclusively related to her husband and prohibited to all others. From this intent of leshem ishut will then flow all other authority which will bestow legitimacy and direction upon the formal ceremony and simultaneously form the foundation of the kiddushin. The other view finds the natural standard utterly inadequate . . . What, then, shall be the normative canon for kavanah? It must be lekiddushei Torah or leshem kiddushin . . . a conscious awareness that the ceremony must be kedin, in faithful fulfillment of the hallowed imperatives of Jewish law . . .
. . . the intention to marry must be visibly objectified, in order both to articulate as well as to inculcate the core ideas of that kavanah. Jewish tradition, therefore, devised two more patterns of action to achieve tangibility. One of them was the amirah, an official verbal declaration of marital kavanah to be made directly by the groom to his bride in a formal and public style . . . The other act . . . was the netinah, giving, initiated again by the groom and complemented by the parallel kabbalah, receipt, by the bride. These sequential acts of “give and take” involve an object . . . traditionally a ring . . .
But not only must these facets of kavanah be shared between bride and groom. Normally, the halakha also demands . . . ratson – a fourth element, involving the couple’s voluntary assent to all parts of the erusin (i.e. kiddushin – AYW). . . .
Finally, a Jewish marriage must be witnessed by at least two qualified edim, whose responsibility is two-fold. When necessary, they . . . can help establish the facts and certify the . . . degree of compliance with the prerequisites of Jewish marriage law. Yet, even more critical is their role . . . who by their very presence and participation at the ceremony constitute the validity of the ma’aseh kiddushin (i.e. an act of halakhic engagement – AYW).",
"In short, the subjective marital intentions of the Jewish man and Jewish woman are translated into reality via verbal articulation; concretization of this intent must occur under the scrutiny of two eligible witnesses and in the presence of an officiating rabbi and public assemblage (minimally ten adult male Orthodox Jews) for the expressed purpose of establishing a consensual marital union. With the finalization of the act of nissu’in, the Jewish man becomes a husband and is obligated to engage in conjugal relations and perform certain monetary duties such as supporting and clothing his wife. Moreover, with the advent of nissu’in, the aforementioned marital property regime emerges as governing the property relations between the couple.",
"That being said, at what point can the property arrangement established by Halakhah be modified? Let’s assume that there is a monetary agreement executed by a couple prior to their marriage whereby all the property owned by the woman, the man is mo’hail, waives entitlement to the profits of these assets labeled nikhsei melog as well as future entitlement to her ma’aseh yadeha” (literally her handiwork) which minimally refers to a wife’s domestic chores (hereafter: future rights)? If the agreement was executed prior to the act of the kiddushin, then the mehilah is ineffective due to the fact that the accrued profits of melog property and a wife’s earned income represents a future right which will be exercised by the man upon nissu’in. To be capable of waiving such right, one must possess the right at the time of the mehilah. As such, one cannot waive future rights. Prior to the kiddushin, no such entitlement exists for the prospective husband. Should the agreement be executed via a kinyan (symbolic act of undertaking an obligation), the kinyan would be ineffective because the future rights are a davar she-lo ba la’olam (something not yet in existence). Consequently, the execution of a kinyan under such conditions is a kinyan devarim (an undertaking of words). Similarly, if the man obligates himself accompanied by a kinyan to waive his entitlement to these future rights, then the arrangement would be invalid. Based upon the foregoing presentation, unless one accepts the position, albeit a minority view, that in principle a man may be mo’hail his future rights prior to kiddushin, or due to it being a rabbinic right it is waivable, such a prenuptial agreement would not be recognized.",
"The outstanding question regarding this arrangement is whether mehilah will be effective after the act of kiddushin prior to the act of nissu’in. As we know, a husband inherits the assets of his wife upon her demise. Despite the fact that after kiddushin, a husband cannot inherit his prospective wife’s assets should she die prior to their marriage, there is a relationship established (“age’da bei ketzat”) which emerges as a result of kiddushin between the man and woman which suffices to remove the inheritance right from the category of a davar she-lo ba la’olam. As such, after kiddushin he is authorized to engage in siluk (hafka’ah – renouncing) of his right to his wife’s inheritance. Analogously, a siluk performed by the prospective husband after the kiddushin (“I have no claim whatsoever upon the fruits of your estate and your earned income when you will marry”) would equally be effective. As such, if a prospective husband is mo’hail (rescinds) his future rights after kiddushin, such an agreement ought to be effective. Implicit in this conclusion is that either mehilah and siluk are synonyms for waiving a right or that they are different institutions, however concerning their effectiveness in dealing with future rights they yield the same results.",
"Nevertheless, despite the above grounds for validating, after kiddushin, a prenuptial agreement entailing siluk or mehilah, there are Poskim who validate an arrangement of the siluk of future interests even prior to kiddushin. Implicit in this position is that siluk differs from mehilah. The sevara (line of reasoning) offered by Taz is the following: Should a person engage in siluk it means that he has no interest in being zokheh (receiving the privilege of benefiting) the right and therefore he is empowered to renounce the right before he receives it. Therefore, we can understand those Rishonim who will validate a siluk arrangement even regarding a future right which is of a Biblical status. However, there is the view of some authorities that one can waive such a right prior to kiddushin because it is a rabbinic privilege to receive the accrued profits of a wife’s melog property. The rationale is that since this right was established to financially benefit the domestic household, should the prospective husband decide that there is no need for this benefit, he may renounce his right. On the other hand, if the privilege is grounded in Torah law, one cannot engage in siluk because the Torah is absolute and is not dependent upon his will that if he rejects it he will not benefit from it. Similarly, given that a husband’s entitlement to her domestic chores is a rabbinic privilege in exchange for supporting his wife in order to avoid animosity between the couple, should he decide that to forego this benefit, he may renounce his right.",
"Furthermore, notwithstanding some authorities, this siluk arrangement may take place after shiddukhin (engagement) prior to kiddushin. In certain circles, it is customary for the prospective couple to have prepared a shtar tenaim, a list of conditions upon the occasion of shiddukhin with certain various parental and spousal obligations and the anticipated month of the wedding (or the actual date). The siluk arrangement is validated by these Poskim either because a man may renounce a future right, “these are matters that can be acquired via the medium of speech” or the stating of such an agreement accompanied by a penalty and a herem (a threat of excommunication) will be effective.",
"Taz’s sevara for validating the power of siluk may be translated into at least two indigenous halakhic categories. Firstly, as we know, a husband is obligated to support his wife. Addressing the situation of a wife who agrees that she will not be supported by her husband, Rabbi Ya’akov of Lisa concludes that this act of siluk from her right to mezonot (support) is to be construed like shi’yur, a reserve clause. In effect, the wife is limiting her monetary entitlement emerging from her marriage (shi’yur) by engaging in renouncing her right to mezonot from her husband.",
"The reserve clause is being couched as a tenai. Usually, the tenai is a condition for the validity of a transaction between two parties and therefore the condition must be couched according to mishpetei ha-tena’im, the halakhot of conditions. For example, if Reuven gives money to a poor man to purchase a shirt, he may not buy a coat because he disregards the owner’s wishes. Should the poor man disregard the person’s instructions in effect he is viewed as a thief due to the fact that he disregarded the conditional clause in Reuven’s request. Becoming a thief is contingent upon the fact that a tenai kaful, a double condition, has been drafted, i.e. “On the condition that the poor person purchases the shirt with the man’s money, it belongs to him. If he purchases the coat with the man’s money, he is a thief.” The transaction will be valid if the tenai is fulfilled. However, if the tenai is not complied with, the transaction is deemed misappropriation. In other words, whether the act will occur is contingent upon the fulfillment of a tenai.",
"In contradistinction to utilizing a tenai to set the parameters of a transaction between parties, here when dealing with a siluk arrangement we are focusing upon utilizing a tenai regarding the rights between a prospective couple. Implicitly following Rambam and others, in the words of Dayan Eliezer Goldschmidt, we have a tenai which conceptually is “bil’vad” (loosely translated: limiting). We are dealing with limiting the monetary scope of the husband’s rights in the wife’s property during their marriage rather than whether a particular act of marriage will materialize or not. Whether the act will transpire is not dependent upon the fulfillment of the tenai. Rather we are focusing upon a tenai be-derekh hagbalah, a condition which is limiting, specifically of the benefits enjoyed by the husband in his wife’s property. The marriage will take place and it is not linked to the compliance with a tenai. The parameters of the couple’s monetary relationship in the marriage, whether the husband will benefit from certain rights, is dependent upon whether a tenai was executed. Consequently, in our context though a tenai is being employed to limit the husband’s rights, given that it is a tenai bil’vad, notwithstanding Tosafot, and others, it need not comply with mishpetei ha-tena’im.",
"In other words, in the case presented to him, where the wife is stating in the form of a tenai that this privilege will not be given to her by dint of marriage, Rabbi Ya’akov of Lisa argues that such an agreement is recognized. Similarly, Rabbi Ya’akov of Lisa contends that by executing a siluk arrangement concerning his future rights in the form of tenai the prospective husband has the prerogative to forego future rights due to the fact that the arrangement preempted the creation of this matrimonial privilege.",
"This solution poses two difficulties. Firstly, one cannot employ a reserve clause regarding a matter which is a davar she-lo ba la’olam. Secondly, given that we are dealing with a davar she-lo ba la’olam, therefore these future rights possess no height, width or depth and therefore are to be classified as a davar she’in bo mamash. While hilkhot hiyuvim, the law of obligations, fully recognize the validity of a reserve clause, this type of clause is invalid when the right which is withheld is intangible.",
"Notwithstanding the above, one can couch the reserve clause as a tenai and it will be effective because a tenai is valid regarding a davar she-lo ba la’olam as well as a davar she’in bo mamash.",
"Alternatively, Rabbi Arye Leib Heller contends that the efficacy of a siluk arrangement which states, “on the condition that I have no claim (benefit – AYW) of the Halakhah of future rights in your property” is that it is drafted as a tenai. And even though this tenai is “contrary to what is written in the Torah” since Halakhah recognizes a husband’s rights in his wife’s property it is valid due to the fact that the agreement entails monetary matters, namely the future rights of a husband in his wife’s properties. And monetary issues are subject to modification based upon the employment of a tenai. This conclusion finds its precedent in Talmudic rulings found in Kiddushin 19b, Ketuvot 56a and Bava Metzia 94a. As Rabbi Heller notes, Rashba opines should a prospective husband state at the time of the kiddushin that the kiddushin is “on the condition that he does not need to provide to his wife support and clothing,” the arrangement is valid due to the fact that he wants to be mo’hail his duties rather than renounce (siluk) his obligations. Based upon his rationale the validity of a condition in monetary matters does not provide for uprooting halakhot. Otherwise, siluk would have been effective. Responding to this challenge, Rabbi Heller offers his solution which was earlier presented by Rabbi Shimon bar Tzemah Duran, better known by the acronym: Tashbetz, who notes the following:",
"We do not say a condition contrary to what is written in the Torah is null, unless he explicitly conditions that what is written in the Torah ought to be nullified. However, if he conditions himself that he will not fulfill what is written in the Torah, his condition is not void . . . since he is conditioning himself and waives the privilege that the Torah entitled him to have.",
"In short, implicitly endorsing Taz’s sevara and following Tashbetz’s reasoning, Rabbi Heller is validating a siluk arrangement for future interests even prior to the act of kiddushin by couching it in terms of employing a tenai which is in variance to what is written in the Torah.",
"Notwithstanding, Tashbetz’s and Taz’s understanding, Rabbi Heller’s view finds precedent in the Talmud. As we know, the Shemitah (Sabbatical) year provides that creditors may not pursue debtors for outstanding loans. What if, at the time of the loan transaction, the parties draft an agreement in the form of a tenai that there will be no release from debt in the upcoming Shemitah year? The validity of the agreement will be contingent upon the wording of the tenai. If the tenai is that “the Shemitah year does not cancel the debt,” then the agreement will not be recognized because it is in variance with the Torah’s directive that the debt is cancelled by the Shemitah year. On the other hand, if the tenai is drafted “that you do not cancel the debt due to me in the Shemitah year” – meaning that you do not take advantage of the Shemitah year – it becomes a tenai between the creditor and debtor and the debt remains “alive” despite the coming of the Shemitah year. Similarly, if prior to the kiddushin the man states in the form of a tenai that he does not want to benefit from future rights in the marriage, the agreement is valid.",
"The common denominator between Rabbi Ya’akov of Lisa and Rabbi Heller’s views is that despite the fact that the siluk agreement transpires prior to kiddushin, it will be effective due to couching the arrangement in a tenai. Implicitly, they are subscribing to the view that the execution of a tenai will be valid even when dealing with a davar she-lo ba la’olam.",
"Alternatively, a siluk arrangement may be executed employing the language of hithayivut (obligation) such as “I obligate myself via a kinyan to return all that I will be privileged to receive (zekhiyah) from her properties due to being married to her properties as well as its fruits.” Utilizing this terminology of hithayivut is effective even prior to kiddushin.",
"Finally, notwithstanding some Poskim, a siluk arrangement will be effective by employing kinyan udita by stating that “I admit that all the properties and their fruits that will fall into my possession due to my marriage with my wife belong to her.”",
"In contradistinction to siluk, as we have shown, mehilah deals with a situation where the man possesses an existing right and consequently if the right is not yet in existence such as prior to kiddushin, it will not be recognized. However, the act of kiddushin generates “age’da bei ketzat,” therefore executing a mehilah of future rights at this juncture has validity. Yet, others reject the efficacy of such an agreement. However, if the mehilah is executed in the format of a tenai it is valid. For example, if at the time of kiddushin, the prospective husband agrees with his prospective spouse that she may marry him on the condition that he is absolved from feeding her and clothing her, the agreement is deemed valid. Similarly, if he is mo’hail in the form of a tenai his future rights vis-à-vis his prospective wife’s properties it is valid.",
"In short, given the fact that there exists a debate regarding the propriety of both a mehilah agreement as well as a siluk arrangement, it is recommended that a tenai be executed prior to the marriage that the marriage ought to be established whereby the husband will not be the beneficiary of the rights in his wife’s properties. Alternatively, as suggested by others, prior to the kiddushin or under the hupah between the kiddushin and the nissu’in, an agreement should be drafted, signed by the parties accompanied with a kinyan which states that the husband will neither benefit from rights in his wife’s property nor gain title to her earned income. Obviously, the scope of these prenuptial agreements may extend well beyond the future rights that we addressed to encompass other matters such as that neither party will have a right in each other’s respective properties which exist at the time of marriage nor in properties that they may acquire in the future. Lastly, a prenuptial agreement may address the possibility that should a divorce ensue that the issue of the division of marital assets ought to be resolved by a beit din in accordance with Halakhah."
],
"Chapter 3; Breach of a promise to marry": [
"Breach of a promise to marry",
"This presentation explores how the halakhot of hiyuvim, obligations, deal with the breach of promise to marry. In the wake of a breach, what are the halakhic consequences? How do the rabbinical courts which are under the Chief Rabbinate of the State of Israel regulate what happens when there is a breach of shiddukhin, an engagement? Consider the following case: The plaintiff, relying upon the defendant’s promise of marriage, advanced nonrefundable deposits for a reception hall, an orchestra, a photographer and a custom-made wedding gown. One month before the scheduled date of the wedding, the prospective groom, the defendant, informed the plaintiff that “all wedding plans were off” and would not be keeping his promise to marry her. Subsequently, she cancelled all the wedding plans and brought an action against her former fiancé in a beit din for imbursement of her wedding-related outlay of expenses which had been expended in the reliance upon the unfulfilled promise to marry. Given that “the promise to marry” has been halakhically characterized as an instance of “two who have undertaken an obligation,” how do the halakhot of hiyuvim define this “obligation”? Does it really constitute a hithayivut, an obligation in the formal sense of the word? Is one obligated to marry one’s prospective spouse? Can one recover damages for a breach of promise to marry? Are there grounds for reimbursement of wedding-related expenses due to a breach of an engagement? Are gifts that were given in the anticipation of the marriage recoverable?",
"Professor Ben Tzion Schereschewsky, an expert in halakhic family relations and a former Justice serving on the Israeli Supreme Court writes:",
"The party committing a breach of promise – that is, not marrying the other party – may be liable to compensate the other party for any actual damage sustained, such as the expenses of the preparations for the marriage, and may also be obliged to return the gifts he received on the occasion of the shiddukhin, whether from any party or from relatives and friends.",
"According to Professor Schereschewsky, a plaintiff may recover breach-of-promise damages that are tortuous (causing damage) such as unreimbursed expenditures made in preparation for the impending marriage. Since a plaintiff can also recover engagement gifts under halakhot of hiyuvim, Professor Schereschewsky maintains that both claims associated with the breach of promise, a claim associated with nezikin, torts, and the claim related to hilkhot hiyuvim are recovered based upon an umdana, as assessment of intent that can be presumed to be correct. In other words, would the prospective wife have incurred wedding expenses had she known her fiancé would break their engagement? Are the engagement gifts to be construed as conditional gifts? Is the condition in question the actual occurrence of the marriage and in the event the marriage fails to transpire the gifts are returnable? Or might it be that gifts are not recoverable when the donor changes his mind, as long as the recipient has taken steps to fulfill his or her part of the agreement? Employing Schereschewsky’s analysis, invoking the technique of umdana in order to establish the basis for a tort claim and hiyuvim claim, translates in our situation into recovery of damages for unreimbursed expenditures and recovery of gifts by the aggrieved party.",
"But does the breach-of-promise claim resemble a tort or a hiyuvim claim? Is the employing of an umdana a suitable avenue for recovery of expenditures and return of gifts? Do Professor Schereschewsky’s sources corroborate his conclusion?",
"A related issue may shed light on the nature of the duty inherent in the act of shiddukhin. If, in a divorce agreement, a married couple takes upon the obligation (mit’hayvim) to dissolve their marriage, is such an agreement valid? The following reply was given by an Israeli Rabbinical Court:",
"It is clear that a divorce decree issued following a mutual agreement to be divorced, even though the parties undertook the obligation via kinyan (a symbolic act to undertake a duty – AYW), does not obligate them to become divorced . . . each party may withdraw from the agreement . . .",
"In other words, such an agreement is null and void. Numerous Israeli battei din (rabbinical courts) have adopted this position.",
"It has been argued that the same conclusion should apply in a situation where two parties undertake an obligation to bind themselves in marriage. Both agreements have been characterized as “kinyan devarim,” a promise.",
"Why doesn’t Halakhah uphold such agreements whereby the parties obligate themselves to a marriage or a divorce? Though the battei din in question did not respond to this issue, the answer is nonetheless clear. The Talmud states that the execution of a kinyan between two partners for the express purpose of dividing a plot of land equally between them is a kinyan devarim and therefore void. As numerous authorities have explained, the effectiveness of utilizing a kinyan in this context is predicated upon the transfer of an object. In rabbinic parlance, we speak of a davar she’yesh bo mamash (something which is tangible) which when it exists imparts validity to a kinyan. In this context, tangibility is defined as something which has height, width and depth. Ownership in something which is intangible (davar she’ein bo mamash) such as dividing up land and therefore the land cannot be transferred. A kinyan can only in halakhic parlance be “nitfas” (secured) or hal (executed) with something which is tangible.",
"An obligation between two parties to behave in a certain manner in the future – for example to divide up land – is characterized by the Talmud as a kinyan devarim and is understood by the authorities as an example of the ineffectiveness of the execution of a kinyan in the absence of davar she’yesh bo mamash. A promise to perform an action in the future (“we will divide up the land”) cannot constitute a kinyan which is a symbolic act to undertake a hithayivut. Such an undertaking does not transform a promise of a future action into a davar she’yesh bo mamash. Applying the following line of reasoning to our situation, since the tangibility requirement is a condition for the effectiveness of performing a kinyan, and a promise to perform a future action is bereft of this integral component, an agreement to marry is invalid.",
"This explanation affords us to understand the battei din’s view as to the ineffectiveness of the commitment undertaken by both parties to the shiddukhin and a married couple who decides to get divorced. In the scenario we are exploring here, where the parties exchanged a mutual promise to marry at a future date, such an agreement lacks validity.",
"In light of the ineffectiveness of the promise to marry, given the scenario that we have envisaged, grounds for reimbursement of wedding-related expenses? Though a promise to marry at a future date is invalid, if a document of tenaim (conditions for marriage) is signed at the time of shiddukhin which specifies “an obligation to pay” (hithayivut) and a monetary penalty to be imposed on the party in default, the agreement is valid. For as soon as the monetary obligation is created, the parties become debtors, in contrast to having merely exchanged mutual promises to carry out a future action. Consequently, reliance on the penalty clause seems to be grounds for recovering expenses for a breach of a nuptial promise. Nevertheless, the conventional explanation for the inclusion of this penalty clause is that it is intended to provide the aggrieved party compensation for boshet, the embarrassment and emotional anguish of a broken engagement rather than to provide a basis for recovery for expenses incurred in contemplation of marriage. Therefore, even if the tenaim were written at the time of the engagement, this will not be a basis for resolving our issue of compensation for wedding-related expenses due to the breach of an engagement agreement.",
"Though the halakhot of hiyuvim seem to preclude recovery for financial loss relating to wedding-related expenditures, nevertheless adopting the approach of numerous Poskim, many Israeli battei din view a breach of a promise as a hezek (an injury) which entitles the aggrieved party to damages. This question whether there is responsibility for a hezek when an engagement is broken is a matter of controversy between Rambam and Ra’avad. As Rambam rules:",
"My teachers have ruled that it is the custom of the land that each man when he is betrothed (via the act of kiddushin – AYW) should arrange a feast for his friends or distribute money to the religious functionaries of the community, and if he follows the custom of all people and then she retracts, she must refund his expenses, because she has caused him to spend his money; and whoever causes another to lose money must pay for it.
This applies only if he has witnesses to testify how much he spent. . . .",
"In his critical gloss, Ra’avad demurs and states:",
"I do not concur with his teachers regarding this matter. That indirect causation is akin to seeds in the garden that did not grow; regarding which one pays only expenses. The principle of the matter is that monetary loss indirectly caused to him, the person is exempt from responsibility.",
"In other words, whereas according to Rambam a breach of a promise to marry is actionable, pursuant to Ra’avad, damages are not recoverable. While a minority of decisors align themselves with Ra’avad’s posture, most authorities, including Shulhan Arukh which cites Rambam’s ruling, agree with the view of Rambam. The rationales for imposing responsibility for hezek suggested by the authorities include the immediacy and direct nature of the harm, the jilted and injured party’s reliance on the mazik (the one who caused the damages), the injured party’s unwillingness to accept the risk of loss, and the fact that punitive damages generally are imposed for prevalent occurrences such as broken engagements.",
"On the one hand, the responsibility for the consequences of broken engagements can be grounded in the category of hezek. On the other hand, the halakhot of hiyuvim, as we have shown, invalidate relief from a breach of a promise to marry. Yet, the halakhot of hiyuvim, as we will explain, propose invoking an umdana (that is, assessed expectation of an individual) which will result in awarding damages to the plaintiff in a breach-of-promise suit. A promise to perform a future action such as a promise to marry is recognized if it has induced reliance on the part of the promisee. Reliance transpires when a promisee, presuming that a nuptial promise will be honored, takes action he or she would otherwise not have taken, or refrains from taking action he or she would otherwise have taken. In effect, a breach of the promise to marry generates a claim due the fact that the promisee had relied to his detriment on the promisor’s initial willingness to marry the prospective mate.",
"Invoking a variety of contexts in which a reliance-based liability is operative, such as the halakhot of sales, labor relations and civil procedure, Israeli battei din have contended that detrimental reliance by the promisee serves as grounds for recovery under the halakhot of hiyuvim. For example, suppose a plaintiff summons a defendant to appear before a beit din, and the defendant initially agrees to appear, but later changes his mind. Since the defendant changed his mind, he must indemnify the plaintiff for all the expenses incurred. Although there is no formal agreement between them, given the plaintiff’s reliance on the defendant’s promise to appear, any outlay of expenses associated with this claim is to be reimbursed by the defendant.",
"Similarly, the battei din have concluded that a nuptial promise that induces detrimental reliance by the promisor is grounds for recovery of expenses should the promise be breached. The promisor who is the defendant who induced the reliance is to be viewed like an arev, a loan guarantor who pays the creditor in the event that the debtor defaults on the loan.",
"Alternatively, it may be claimed that the issue of awarding damages for a breach of a nuptial promise is to be viewed through the prism of the community’s social norms, the nohag in the community. Whereas the reliance-based approach views the affianced couple as entering into an agreement in isolation, this model views the agreement against the background of the social code of conduct that governs such agreements: that is, the group’s general conduct, expectations and acceptance of certain practices.",
"Rabbi Shimon bar Tzemah Duran endorsing this approach and offering his interpretation of Rambam’s posture notes that in fifteenth century North Africa it was customary in various communities that certain expenditures were advanced in anticipation of an impending wedding. Consequently, if a breach of a nuptial promise happened, it was customary to reimburse the aggrieved party for these expenses. However, if the aggrieved party incurred additional expenses which were beyond the accepted social practice, the promise breaker was exempt from payment.",
"Rabbi Moshe Zacuto (known by the acronym: Ramaz) describes a rather different scenario. He relates that in seventeenth century Italy engagements lasted one to two years in order to “test the waters” and attempt to ascertain the future stability of the relationship. Engagements were frequently broken off, gifts were returned and each party would withdraw from the relationship with no responsibility for the other side’s incurred expenses. Given the existence of this social practice, Rabbi Zacuto affirms the decision of a beit din in the town of Mantua which declined to award reimbursement of expenses to those who incurred financial loss by a broken nuptial promise.",
"For both Ramaz and Tashbetz an umdana is being deployed, in Ramaz’s nomenclature – “omed hada’at.” In other words, the relationship of parties is being governed by nohag. Despite the fact that a promise to marry is an agreement as to a future action and thus by definition a davar she’ein bo mamash, nevertheless the parties’ intent to follow social practice is presumed. Therefore, the agreement is enforceable.",
"At first glance, one might think that invoking this umdana points to a reliance-based theory of obligation to pay for pre-wedding expenses and returning of engagement gifts. The import of the umdana is typically expressed in terms of the ‘reasonableness’ of the expectations of the parties, who expect nohag to be adhered to. Since most members of the community abide by these norms, one can reasonably assume that it is more likely than not that any given individual in that community will do so as well. In effect, these expectations result in the promisee’s reliance on the promise in taking action. As such, seemingly employing an umdana seems to reflect the reliance approach. But there is, in actuality, a difference between the two approaches. The reliance-based perspective focuses on the obligatory nature of the agreement; the umdana approach seeks to distill the intent of the parties from social practice.",
"Let us now revisit Professor Schereschewsky’s position regarding the recovery of engagement gifts and pre-wedding expenditures due to a breach of a nuptial promise. In his opinion, the existence of an obligation between the parties based on the invoking of an umdana mandates compensations for the gifts and expenditures.",
"Clearly, the sources he cites support his conclusion regarding the recovery of gifts. In the absence of a contrary expression of intent, gifts made in contemplation of marriage, typified by the engagement ring, but also including gifts between the affianced couple and gifts given to the engaged couple by third parties, may be recovered if marriage does not ensue, regardless of which party is at fault with regard to termination of the engagement. Employing the logic of umdana, an engagement gift is, by implication, a conditional gift title which does not become absolute until the marriage transpires. Whereas Tashbetz and Ramaz invoke an umdana grounded in the practices of the parties’ communities, the presumed intent referred here concerning engagement gifts is based upon the parties’ subjective wishes.",
"The following picturesque metaphor, suggested by an American judge, is equally apt as a characterization of the halakhic view that engagement gifts, absent intentions to the contrary, are implicitly conditioned on marriage.",
"Describing the conditional nature of an engagement gift, the court notes:",
"A gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If after receiving the provisional gift, the donee refuses to leave the harbor – if the anchor of contractual performance sticks in the sands of irresolution and procrastination – the gift must be restored to the donor.",
"However, Professor Schereschewsky’s claim that damages for pre-wedding expenditures are to be awarded to the breach-of-promise plaintiff on the basis of an obligation established via the avenue of umdana is not substantiated by the sources he cites. In fact, all these sources in question address the issue of recovery of gifts.",
"At this juncture, a brief comparison of the halakhic and American legal traditions will be helpful. The common law recognized a right to submit a claim, combining elements of both contract and tort for a breach of a promise to marry. In the United States, during the colonial period and the nineteenth century, courts recognized this cause for action. At the time, marriages, particularly among the wealthy, were often arranged and negotiated by families on the basis of the financial and economic considerations. Damages included those for mental anguish, humiliation, pre-wedding expenses and a woman’s subsequent loss of marketability. But by the late nineteenth century, this claim had become the subject of much criticism. Indeed, by the 1930’s, twenty-five states had enacted legislation, colloquially known as “anti heart balm” statutes, abolishing the common law action for breach of the promise to marry. Other states placed limits on this cause of action. This trend has continued to the present with only a few states currently permitting breach of promise actions. Despite the non-recognition of the breach of the nuptial promise, tort law continues to allow potential spouses to sue each other for intentional infliction of emotional stress and negligence. Contract law has permitted the recovery of gifts in certain situations.",
"Whereas, American law, much like Roman and French law, now deems recognition of such an action to be clearly out of step with societal mores which value individual autonomy, “freedom to marry,” and the right to change one’s mind without incurring liability for one’s decision, additional public policy considerations have been mentioned for the passage of the anti-heart balm statutes. The courts and the legal literature have raised three main criticisms of the breach of a promise to marry as a cause of action: (1) it can be used for extortion and blackmail; (2) it is subject to abuse by juries that, having extensive discretion, may award excessive damages for embarrassment and humiliation; (3) damage awards unjustly permit recovery for loss of expected economic and social position.",
"In Halakhah, the focus is quite different. In various medieval Jewish communities, and certain segments of contemporary Orthodox Jewry, promising to marry is considered almost tantamount to marriage and thus virtually inviolate. Professor Ya’akov Katz described the import of shiddukhin in medieval times as follows:",
"The signing of the betrothal document (shtar tenaim) did not create matrimonial ties . . . But, in practice, the document contained guarantees of sufficient substance to warrant regarding the future of the couple as entirely settled upon it being signed, no less than upon entering into actual betrothal (kiddushin – AYW). In the first place, each party undertook to pay a heavy forfeit for violating the agreement – generally half the amount of the dowry. Second, and more important, the undertaking involved the acceptance of a ban regarded as “a ban of the kehillot,” i.e. as a decree of the Early Sages, on anyone who violated the betrothal terms and injured the good name of the other family.",
"The seriousness of the bond forged by the shiddukhin document was supported by public opinion which frowned upon its cancellation. Those who violated such an agreement without receiving a dispensation from a competent beit din suffered serious consequences. Not only did they have to pay the incurred losses, but they would be held in contempt, lessening their prospects for entering into an appropriate match subsequently. The writing and signing of the shtar tenaim as well as the institution of “the ban of the communities” extended well beyond the medieval period and in many circles continues to be observed, precisely as described by Professor Katz, until the twentieth century. On the other hand, in certain Babylonian communities during Gaonic times and in certain fifteenth century communities in North Africa and seventeenth century Italian Jewish enclaves, broken engagements were as we noted a fact of life acknowledged by the authorities of the day.",
"For communities that must deal with the issue of broken engagements, Halakhah has devised solutions in accordance with its own inner logic. While there is usually a period during which withdrawing from an engagement does not cause too much harm, the harm may become more extensive the longer one waits to break the engagement. As the wedding date draws near and in many Torah observant communities the span of time between shiddukhin and the wedding is short, the expenses incurred in anticipation of the wedding increase quickly. It thus behooves someone having second thoughts about an impending marriage to discuss these doubts with his/her prospective spouse as soon as possible. Imposing liability serves the social goals of preventing procrastination and promoting responsibility, honesty and forthrightness. Knowledge that one may be liable for monetary losses for a broken engagement is an incentive to take the promise to marry seriously, in accordance with the verse, “The remnant of Yisrael shall not do iniquity, nor speak lies.”"
],
"Chapter 4; A parent's decision to withhold medical treatment from children; A study in competing analogies": [
"A parent’s decision to withhold medical treatment from children: A study in competing analogies",
"A range of cases in American law that has gained increasing prominence during the last thirty years centers upon the parental responsibility to provide medical treatment for children. Interestingly enough, the Talmud is reticent regarding this issue. However, post-Talmudic authorities have suggested that the halakhot (Jewish laws) dealing with criminal omissions, norms of tzedakah (loosely translated: charity) and the child support obligation may serve as indigenous halakhic categories for addressing this issue. Implicit in their suggestion of the relevancy of these halakhot for our matter is the implicit assumption that one can extend the rules governing criminal omission, tzedakah and child support which are applicable to one set of fact patterns to our fact pattern (i.e. parental neglect of a child’s medical care) which are in relevant respects similar. Here, as in other realms of Halakhah, legists resort to the use of “reasoning by analogy”.",
"Equally significant however, are the consequences of adopting a particular analogical argument. Every analogical argument leads to very different results. Our issue suggests many competing analogies and therefore the yielding of different outcomes. Yet, aside from a decision rendered by an Israeli rabbinical court, all decisors who employ an analogy to resolve our matter fail to examine the consequences of adopting the particular analogical argument and/or the outcome of adopting a counter analogy.",
"Our study will attempt to unravel the consequences of viewing a parent who withholds medical care as analogous to that of an individual who fails to rescue an endangered party, declines to give tzedakah or as a parent who neglects to support his child.",
"To fully understand the analogical argument suggested by Halakhah of criminal omissions, let us begin with a brief presentation of the position of American law.",
"Our issue presents a case of homicide by omission on the part of parents. This matter in American law entails three issues. Firstly, a parent’s legal duty to provide necessary medical attention and the imposition of criminal sanctions for failure to fulfill his duty. Furthermore, the matter involves the degree of negligence required for involuntary manslaughter and the circumstances under which an omission is deemed to proximately cause the death of the other.",
"Perhaps one of the most striking illustrations for denying responsibility is exemplified by the case of Bradley v. State. In Bradley, a minor, epileptic daughter had fallen into a fire while experiencing a seizure and suffered severe burns. On religious grounds, the father refused to treat his daughter’s burns with medication. Suggesting that there was no connection between the father’s refusal to provide medical care and the child’s eventual death, the court exonerated the defendant of manslaughter stating the following:",
"Whatever motive may have prompted the father in failing and refusing to provide medical attention for his severely burned daughter, such failure and refusal, however reprehensible, does not appear to be within the letter or intent of the statute making “the killing of a human being, by the act, procurement or culpable negligence of another” a felony called manslaughter. It is not claimed that the allegations and the proofs show that any “act” or “procurement” of the father caused the death of the child . . . Manifestly, the death of the child was caused by the accidental burning which the father had no part. . . .",
"In other words, the failure to prevent harm is to be distinguished from causing harm. Since the child’s death was caused by the accidental burning in which the father had no part, the father did not “cause the killing of the child.”",
"Traditionally, common law has refused to impose a general duty to rescue persons in peril. Nevertheless, exceptions to this rule have developed in the form of “special relationships between two individuals” out of which duties of rescue emerge. The duty of rescue based on a special relationship is well settled when the individual needing medical attention is a child and the person under a duty is the parent.",
"Does the Bradley decision imply recognition of humanitarian duties that “the law should reflect, reinforce . . . at least the segment of shared morality which consists in moral duties owed to others”? Rather this ruling rejects the judgment of Lord Atkin in the classic English case of Donohue v. Stevenson which states:",
"The rule that you are to love your neighbor becomes in law, you must not injure your neighbor; and the lawyer’s question, who is my neighbor receives a restricted reply . . . The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to acts of omission which we called in question.",
"Clearly, suggests Lord Atkin, the particular circumstances dictate that a parent rescue his child. Neither humanhood nor parenthood as sources for moral duties becomes the source of the legal obligation of care. Whether a particular situation mandates a duty of care will be applied by applying the rules of causation. Therefore, the rationale of causation is the justification for a duty of rescue based upon “a special relationship.”",
"Does Halakhah analyze a criminal omission in terms of causation and thus insist on a causal link between omission and harm? A cursory reading of Talmudic discussions of homicide indicates that the concept of causation is limited to acts of criminal commission.",
"If according to Halakhah, the harm the individual does not prevent from occurring cannot be regarded as a consequence of his refraining, since the required causal relation is absent, on what basis can one hold an individual responsible for his omission? Without recourse to a given causal relation, as suggested by American law, there exists in Halakhah a positive duty to every Jew, a duty beyond “the negative one” of not causing harm to the individual. A parent’s obligation to provide medical treatment has been advanced by various authorities as an example of this generalized duty of rescue, one that extends to strangers.",
"Seemingly, the application of this analogy to the duty of rescue is ineffective in the sense that it is a somewhat toothless tiger since the failure to rescue lacks a halakhic sanction on Biblical grounds. Hence, a minor would have no redress and relief against a recalcitrant parent who refuses to provide medical care.",
"Countering this objection, Professor Aaron Kirschenbaum states:",
"It is a fact of history that in Jewish society . . . non-prosecutable injunctions, by their sheer religious weight, were effective in their deterrent power. It would be misleading, therefore, to interpret the lack of judicial punishment in Jewish law for the innocent bystander who fails in his duty to come to the rescue of his fellow-man in distress as indicating that the duty is merely moral. Rather Jewish law views such failure as . . . a formal offense of inaction . . .",
"Echoing a similar idea, Professor Ernst Weinrib writes:",
"To regard the Talmudic duty as moral rather than legal, however, is to misconceive the talmudic position. The duty of rescue is not merely a matter of conscience . . . Because Jewish law embodies a jurisprudence of obligation, the legal character of the duty to rescue lies in its very existence as a duty, even if its breach is not subject to sanction . . .",
"Halakhah is primarily a system of duties owed rather than rights possessed. Hence the individual’s duty of rescue by itself mandates compliance.",
"The duty of rescue is based upon both a positive and a negative commandment: “And you shall restore him to himself” and “Do not stand idle by the blood of your neighbor”. Whereas, the Biblical negative commandment biblically mandates assistance for victims in peril, the former Biblical verse deals with the restoration of lost property and it is interpreted by the Midrash Halakhah to encompass the restoration of an individual’s body. Seemingly, the positive and negative commandments are two sides of the same coin; the negative one has no intrinsic significance; it only relates to the omission of the positive, i.e. the failure to rescue and its attendant consequences for failing to comply with rescuing an individual in stress.",
"However, the Talmud views the provisions regulating the duty to rescue as a resolution of the interplay between a positive and a negative commandment emerging from two different spheres of Halakhah, namely the halakhot of the restoration of lost property and the halakhot of criminal omissions. As the Talmud teaches us:",
"From where do we know that if a man sees his neighbor drowning. . . . he is bound to save him? From the verse, “Do not stand idly by the blood of your neighbor.” But is it derived from this verse? Is it not rather from elsewhere? From where do we know (that one must rescue his neighbor from – AYW) the loss of himself? From the verse, “And you ought to restore him to himself.” From that verse I might think that it is only a personal obligation, but that he is not bound to take the trouble of hiring men (if he cannot deliver himself – AYW); therefore, this verse teaches that he must.",
"If the halakhot dealing with the duty of rescue would have been governed exclusively by the halakhot of restoration of lost property, then the scope of the rescuer’s involvement would have been limited to personal involvement.",
"The halakhot of criminal omissions mandate that an individual’s duty in a rescue is not eclipsed by personal involvement. The rescuer, while attempting to render assistance to the endangered party, is dutybound to incur the expenditures required for the rescue effort. Thus, the halakhot of criminal omissions serve to expand the scope of the rescuer’s responsibility beyond the obligation mandated by the halakhot of restoring lost property. Hence the extent of parental responsibility for providing a child’s medical care entails personal involvement and the incurring of financial expenditures.",
"Viewing the provisions regulating the duty of rescue as a resolution of the interplay between two diverse areas of Halakhah is reflected in post-talmudic discussions. For example, what happens if an elderly father or a father who is proficient in Halakhah and is capable of assisting in a rescue considers the rendering of a particular type of medical treatment undignified (e.g. dealing with a major hemorrhage of his child) and therefore declines to offer aid? Since according to the halakhot of restoration of lost property, under these circumstances the person would be exempt from his duty to rescue lost property, some Poskim conclude that he is equally exempt from the duty of rescue. On the other hand, the halakhot of criminal omissions would mandate a duty to rescue under these conditions. Consequently, an elderly father or a father proficient in Halakhah would remain dutybound to provide the necessary medical care for his child.",
"Inasmuch as Halakhah encourages the duty to rescue, Halakhah, similar to many civil legal systems, requires the rescuee to reimburse the rescuer for expenses that the rescuee would surely have authorized. However, according to Tur and Rema if the rescuee is impoverished and therefore cannot shoulder the costs of the rescue operation, the rescuer is exempt from his duty. As such, it would seem that a father would be exempt from providing medical assistance to his dependent child who is bereft of financial resources. Alternatively, it may be argued that the case of a financially dependent child may be an exception to the rule.",
"Whereas, as we mentioned earlier according to American law, there is an absence of a general legal duty to rescue a person in peril, and similarly there is no legal obligation to secure and return lost property. Under Halakhah, as we have demonstrated, there exist divine imperatives to restore lost property as well as rescuing life. Moreover, as we have shown, the halakhot of restoration of lost property may serve as guidelines in fashioning the halakhot of the duty to rescue.",
"II.",
"A second analogical model suggested by an Israeli rabbinical court is to posit that the parental responsibility to provide necessary medical treatment involves entails the fulfillment of a “hiyuv,” an obligation, namely the mitzvah of tzedakah, charity. In other words, should the minor’s medical treatment require the expending of expenses, the parent would pay for the outlay of these expenses.",
"Seemingly, given the fact that tzedakah is “mamon she’ein lo tov’im”, monies without determinate plaintiffs, the failure to contribute cannot be claimed and therefore litigated in a beit din. No potential recipient of tzedakah can demand anything from a donor as his due. In fact, it is subject to debate whether tzedakah belongs to the impoverished or to the tzibur, the community as an independent halakhic personality akin to a corporation. In short, tzedakah does belong to any defined individual(s) and seemingly therefore a minor cannot recoup his medical expenses.",
"As the late Chief Rabbi of Israel, Rabbi Dr. Yitzhak Herzog elucidates:",
"‘Right’ and its correlative ‘duty’, are fundamental concepts in law . . . Thus, to give a sufficiently plain illustration, if A owes money to B, the right to recover the debt is vested in B and he is in legal language the owner of the right which avails against A . . . A, on the other hand, owes a duty to B. He is the person against whom the right of B avails, and upon whom the correlative duty lies . . . That these elemental concepts are present in Jewish law is, of course, self evident. . . .",
"In other words, Halakhah posits that whenever someone has a right, it is a right held against some other individual and the latter has a corresponding duty to the right-holder.",
"Is the converse equally true? Is there a corresponding right whenever there is a duty? Halakhah argues that the converse turns out to be demonstrably false. Clearly, the duty of tzedakah may require one to contribute to one or a number of determinate recipients based upon a system of priorities set down by Halakhah, yet not one of them can claim the contribution as his right.",
"As the Israeli Rabbinical Court notes:",
"The obligation of tzedakah . . . is an obligation upon the individual, but he is not obligated to the recipient . . . There is a general obligation of tzedekah . . . without the existence of a creditor (“ba’al hov” – AYW) to whom he is duty-bound to pay his obligation. . . .",
"Yet, according to numerous authorities, the mitzvah of tzedakah is a hov, a debt, and it possesses many of the characteristics associated with other debts recognized by Halakhah. Tzedekah is: (1) an enforceable duty by a beit din, (2) the evasion of tzedakah duty creates a shi’bud nekhasim, a lien upon the property of the recalcitrant donor and (3) tefisah (lit. “the taking of possession” – seizure) of tzedakah by the impoverished is effective.",
"However, various decisors as well the above-cited Israeli Rabbinical Court decision note that tzedakah which is characterized as “mamon she’ein lo tov’im” distinguishes itself from the classical type of “hov.” Whereas, for example, the failure to repay a loan gives rise to a claim and the initiation of a beit din proceeding by a plaintiff, the evasion of one tzedakah’s duty lacking a determinate recipient fails to give rise to a claim.",
"Seemingly, in our case, adopting the model of tzedakah as an avenue to obligate parental medical care, one cannot offer relief to a minor who wants to proceed to beit din against a recalcitrant parent who fails to provide him with medical treatment.",
"Nevertheless, despite the fact that tzedakah is “mamon she’ein lo tov’im”, the Israel Rabbinical Court explains that a needy individual may approach the beit din, requesting that this forum, “the father of orphans,” compel the donor to fulfill his tzedakah obligation. Hence, in our case, the minor may approach a beit din and demand compliance from the recalcitrant parent who refuses to pay for his medical expenses.",
"The scope of the tzedakah duty is quite limited both with regard to the potential donors as well as the amounts given. Amounts of tzedakah were fixed as a tithe – thus limiting the potential donation. And, needless to say, the financial condition of the donor and the recipient become relevant factors. Consequently, a parent may be obligated to provide medical treatment only upon initially providing for his own needs. In the case of parents without financial means, wealthy relatives must attend to his needs. If these resources are unavailable, then the communal charity chest may be tapped to provide medical care. Or if the child is financially independent, there would be no duty to give tzedakah. Similarly, “a wicked recipient” would not be entitled to receive tzedakah.",
"In short, adopting the paradigm of tzedakah for defining the parental duty of medical treatment has various halakhic consequences. On the one hand, the halakhot of criminal omissions obligate a greater number of rescuers who are dutybound to assist others in peril than those mandated to be donors by the halakhot of tzedakah. On the other hand, whereas the dominant view is that the rescuee must reimburse the rescuer for incurred expenses of the rescue operation, in numerous situations, the recipient of a donor’s gift providing for medical care does not have to provide compensation for the incurring of these expenses. Yet, in accordance with hilkhot tzedakah there will be situations where a minor will be left bereft of medical care and become a public charge, dependent upon the community for his medical care.",
"III.",
"A third analogical paradigm suggested by a contemporary Posek and an Israeli Rabbinical Court is that the basis for a father to provide medical care stems from his duty to provide mezonot yeladim, child support. To state it differently, the fact of a family relationship creates a special tie between a father and a child constituting the basis for a father’s responsibility to support his children, including the provisions of medical treatment. In contrast of the models of criminal omission and tzedakah which focus upon the individual’s duty to rescue and contribute respectively, the model of mezonot yeladim centers upon the father’s duty to support his offspring. Adopting the halakhot of criminal omissions and tzedakah, since the obligation is directed to an individual, both father and mother are equally responsible. Adopting the halakhot of mezonot yeladim, the obligation falls squarely upon the shoulders of the father qua parent. His duty exists even if he is destitute and his children are wealthy since the duty is grounded in the fact that he is his parent rather than due to the fact that the children require his material support.",
"What is the basis for a father’s obligation to provide medical treatment? The Israel Rabbinical Court suggests that the scope of a father’s responsibility for medical treatment can be ascertained from the parameters of a husband’s duty of medical care (including any expenditures associated with being ill) for his ailing wife. Adopting the approach that child support stems from the duty to mezonot isha, spousal support, the scope of the father’s duty to provide medical assistance to his children will be identical with the requirements of a husband’s obligation to furnish medical treatment to his wife which is a component of mezonot ishah.",
"As such, the question arises: what sort of medical attention must a husband provide for his ailing spouse? The Talmudic reply is “medical treatment without limitations.” As elucidated by the Poskim such medication is referring to a situation of a brief illness or an extended malady where there is a prior arrangement of the physician to pay a fixed amount to treat his wife in time of need. Consequently, it is a father’s duty to provide care for his children who experience an extended illness and/or compensation to physicians for their care.",
"However, what type of medical care and/or compensation must a husband provide for an ailing spouse with a brief illness (“medical treatment with limitations”)? One decisor contends that this type of care is included in the husband’s duty of pidyon, redemption of one’s wife from captivity. Notwithstanding those authorities who subsume medical care in the category of spousal support, others maintain that there exists a takanah, legislation which rabbinically enjoins all medical care.",
"Seemingly, a father ought to be exempt from furnishing this type of medical attention for his children. Since there neither exists a parental obligation of pidyon nor any special legislation which enjoins medical assistance, on what grounds can a minor expect to receive medical treatment for any illness? Unable to address this issue, the Israeli Rabbinical Court concludes that the models of criminal omissions and the norms of tzedakah are applicable.",
"Moreover, the invoking of the model of mezonot yeladim is highly problematic for another reason. The premise of this paradigm is that we can distill the halakhot regarding medical care regarding children from the halakhot of medical care dealing with an ailing wife. In other words, the explicit assumption that the scope of mezonot yeladim is grounded in the parameters of mezonot isha is open to serious challenges. Admittedly, as we noted there is such an approach, albeit it is a shitat yahid, a minority opinion, and the source for this approach is based upon the view of Ran who himself stated that he has not seen his view found amongst the Rishonim. As such Mishneh le-Melekh raises the possibility that Ran’s invoking of such an approach was le’halakhah (in theory) but ve’lo le’ma’aseh (rather than for practical application). In fact, Ran’s approach fails to address many situations. Adopting Ran’s approach would mean that upon the divorce or demise of the mother, the husband would be exempt from providing to his children. As we know, under such circumstances the father would remain dutybound to provide maintenance for his children. In fact, in the wake of having a relationship with a single woman the father is obligated to provide support should offspring be sired from this relationship. Similarly, should a wife have an incestuous relationship with a man and the child sired would be a mamzer (halakhic bastard), the father would be dutybound to support him. Clearly, these situations impart corroboration to the majority view that child support is an independent duty, a paternal duty rather than being linked to spousal support. Finally, in accordance to the halakhot of mezonot a father is obligated to support his children during the first six years of their life. Starting with the seventh year, a father is dutybound to maintain based upon the halakhot of tzedakah. As we discussed earlier, in accordance with hilkhot tzedakah numerous situations may arise which would exempt the parents from disbursement of funds. Nevertheless, Rabbi Moshe Feinstein contends that a child who resides at home and does not go to work until becoming married would be eligible for maintenance based upon hilkhot mezonot. As such, until the children are in the work force, a father remains obligated in furnishing medical care.",
"Based upon the foregoing, it is problematic to employ halakhot of mezonot yeladim as an avenue to obligate a father in furnishing medical care for his children.",
"However, another model may be found within the framework of Even ha-Ezer, the halakhot dealing with family relations. Addressing the case of a father who executed an agreement of support with his daughter and son-in-law, Rabbi Dovid Feder, a nineteenth century authority, rules:",
"One who obligated himself to maintain his daughter and son-in-law according to the prevailing custom and the daughter became ill and died. Is the father allowed to deduct his daughter’s medical expenses (which he incurred – AYW) from the obligation of support promised to his son-in-law? . . .
Since it is customary for a father to furnish for his daughter’s illness during the course of the support period, when one undertakes an obligation, it is with the awareness of this custom. However, a major illness and large medical expenditures do not occur every day . . . and it does not halakhically constitute a minhag (a custom – AYW) if it happens infrequently. And one cannot suggest a proof from the custom that a father remunerates medical fees for a slight illness. . . . .",
"Accordingly, child support is governed by Halakhah and minhag. Since it was customary and usual for a father to furnish medical care for a brief illness which entails the incurring of minimal expenses, consequently Rabbi Feder argues that this type of medical attention constitutes a portion of his support obligation. As such, when the father obligated himself to support his daughter and son-in-law, he had in mind the coverage of minor medical expenses. Consequently, since the minhag did not indicate parental responsibility for expenditures relating to a major illness, therefore he had no duty to provide for such care.",
"Given that in contemporary times in the United States, the minhag is for a father to cover expenses incurred for major illnesses, conventionally covered in part by medical insurance, in accordance with this approach of establishing responsibility for medical treatment as a sub-category of mezonot yeladim, we leave it for Poskim and battei din to decide whether such expenses will be reimbursed.",
"The foregoing analysis of the case of parental neglect of medical care is illustrative of the complex and pivotal role of the analogical argument (known as a hekesh) in the decision-making process. We have seen the distinction between the competing analogies as well as the significant consequences in adopting a particular model for resolving this issue.",
"Deciding between competing analogies in our case will be the sole prerogative of the Posek. The relative strength of each analogical argument applicable to our case, its effectiveness and plausibility will hopefully be tested within the framework of future halakhic decisions."
],
"Chapter 5; Corporal punishment in school; A study in the interaction of Halakhah and American law with social morality": [
"Corporal Punishment in school: A study in the interaction of Halakhah and American law with social morality",
"The purpose of this essay is to present an apercu of the diverse approaches for enforcing school discipline as propounded in contemporary times by American law and Halakhah. Our comparative examination focuses upon the differences between the learned decisions among contemporary halakhic decisors and the rulings in contemporary American courts. Though we will allude to the relevant rules of these two legal systems, it is the jurisprudential perspective rather than the substantive content which is the primary theme.",
"In the 1977 American Supreme Court case Ingraham v. Wright, citing historical and contemporary documentation supporting the use of physical punishment in the public schools, Justice Lewis Powell Jr. concludes that “a single principle has governed the use of corporal punishment since before the American Revolution: teachers may impose reasonable but not excessive force to discipline a child.” This legal tradition has deepened over time and today many states continue to recognize this societal value – i.e., a teacher’s right to administer reasonable force within the context of the school setting. Many states have legitimated this right by legislative enactment and by judicial decision.",
"The question that arises is: What criteria should a societal value satisfy if it is to be figured into the calculus of a legal decision? The answer advanced by certain legal scholars is that judges should use the values that modern society wants to protect as the basis for establishing new legal norms or justifying the modification of existing norms. Is the meting out of force by teachers rooted in the aspirations of the American community as a whole and can it be said to have substantial support in the community? Does the imposition of corporal punishment within the context of an educational setting constitute an infraction of a moral norm, i.e., an unnecessary act of violence? Implicit in these questions, is the underlying premise that one of the tasks of American law is to explore the extent to which actions that are perceived by the community as injurious to its social fabric should give rise to remedies at law.",
"The main obstacle to using conventional morality to establish or amend a legal norm in a pluralistic society is that this approach assumes the existence of a social consensus about what values deserve to be protected. A pluralistic society acknowledges that individuals who have different ethnic, religious and socio-economic backgrounds may not share the same beliefs. In fact, there is no “common experience” through which one may discern a “community sense” of the propriety or impropriety of the employment of physical force in the American school setting. In 1977, the Ingraham court noted that “professional and public opinion is sharply divided on this issue.” Today, twenty six years later, contemporary opinion regarding this matter remains divided.",
"When we compare the legal acceptability of corporal punishment in the classroom with the view of numerous social scientists and medical experts, including those who have written extensively on the subject of child rearing and violence, we encounter a substantial gap. There are several potential harms for the imposition of physical force in the framework of an educational setting. The most obvious risk is that hitting a student may cause physiological damage to the child and may escalate into child abuse. Additionally, it may give rise, during childhood, to a host of psychological and behavioral disorders such as aggression, antisocial behavior, and loss of love and self-esteem leading to depression, increased anxiety and withdrawal.",
"The foregoing overview of these professional findings leads to the realization that what was once considered a normal child rearing practice might now constitute abuse. Moreover, what is now viewed as normal treatment of a child may one day be considered abusive. Accordingly, legal scholars argue that it is time for the federal courts to recognize contemporary standards of decency, affirm the moral norm of societal condemnation of unnecessary violence and abandon the use of force in the public schools.",
"Implicit in this approach is the notion that social morality is capable of determining the legal norm rather than merely affecting it. Contrary to the teachings of David Hume, one may derive an “ought” from an “is.” The premise underlying this approach is that one can study public morals and yield prescriptive content. Moreover, these norms are representative of the “evolving standards of decency that mark the progress of a maturing society.” In the words of Arthur Lovejoy, there is a “tendency inherent in nature or in man to pass through a regular sequence of stages of development in past, present, and future, the latter stages being – with perhaps occasional retardations or minor retrogressions – superior to the earlier.” Translating Lovejoy’s idea into jurisprudential terms, law is functioning properly if it is dynamically adapting to social and moral change. Compliance with the norm of the meting out of corporal punishment in the school is mandated only if the social and moral consensus from which it emerged and which alone justifies its continued compliance continues to exist. Inherent in the legal rule of imposing corporal punishment in school is the notion of its possible legal abrogation when “the evolving standards of decency” warrant the legal conclusion that the continued justification of the rule no longer exists. In fact, a 1993 study noted that in the last 20 years, the number of states abolishing physical punishment in schools has increased from one to twenty-six. Clearly, a trend towards its elimination has emerged. Accordingly, certain legal scholars contend that the courts should abolish the practice pursuant to the evolving standards of modern society.",
"On the other hand, other professional studies regarding the efficacy of corporal punishment in school arrive at different conclusions. There is a widespread acceptance of parental and teacher’s use of physical force in our society. In the related context of parental corporal punishment of children, data from studies conducted from the 1950’s through the 1990’s indicate that nearly ninety per cent of parents employ physical force upon their children. Forty nine per cent of the respondents to a national survey indicated approval of a public school teacher hitting a student. As recently as 1998, Kandice Johnson, a law professor at the University of Missouri, offered cogent argumentation to preserve the parental privilege to employ force while simultaneously providing for the child’s need for bodily integrity. Lastly, Professor Murray Straus, who has devoted a significant portion of his career to the study of corporal punishment and its negative effects upon children, recognizes that the empirical evidence on the negative effects of force is not definitive.",
"In sum, though there are signs that society is rejecting teacher’s use of force as a right, nevertheless the issue remains unresolved. The mixed signals emerging from the professional literature indicate a collision between two norms of American social morality: one social norm endorsing the administration of physical punishment in the school, the other rejecting its continued use. When we speak of the social norms of a community, it is tempting to speak of a simple social consensus, a homogeneity of norms, one that forms an enduring and uncontroversial basis for our culture and traditions. Undoubtedly, our issue demonstrates that such an image is unrealistic, at least for a community in the modern world.",
"In the absence of societal consensus regarding this practice, how should the courts respond? In the absence of shared beliefs among the subcultures of our pluralistic society,",
"a court may, for example, believe that one colliding norm is regarded by the community as significantly more weighty than the other; or that one norm is waxing while the other is waning or that one norm is more congruent with applicable policy and more consistent with the body of the law than the other; or that one norm is better connected to the community’s fundamental concepts of justice. Similarly, where there is a collision between a relatively general principle and a relatively specific judgment, each of which appears to have substantial social support, the court may attempt to reconcile the two by reformulating either the general principle or the specific judgment so that they are in equilibrium.",
"In fact, for almost 150 years, American courts have heard challenges to the practice of the use of force in the public schools based on alleged violations of tort law, criminal law, state legislation and constitutional guarantees. The employment of physical punishment in an educational framework, opponents argue, had a substantive basis in the applicable legal and social concepts of a bygone era, but is socially incongruent and systemically inconsistent with contemporary societal norms. However, these challenges have usually failed. In effect, the law has put its weight and imprimatur behind the moral and social norms which continue to endorse this practice. Presently, the moral norm of condemning physical force lacks either the weight or the requisite social support to overturn the legal norm permitting the continuance of this practice.",
"II.",
"How do contemporary halakhic arbiters resolve the issue of meting out corporal punishment to Jewish children within the context of the Jewish educational system? To unravel the varying and diametrically opposed positions, one must define their matrix and probe the meaning of the implicit halakhic norm underlying the decisions.",
"To define the content of this norm, one must turn to its source, the Talmud. What is the significance of the fact that this norm derives from the Talmud? One of the systemic assumptions of the halakhic process is the authoritative nature of the Talmud’s rulings. These dicta are binding upon the Jewish community and every arbiter, in every generation, is compelled to render his decision in accordance with them. Accordingly, this norm in the Talmud will assume authoritativeness in the mind of the arbiter.",
"The Talmud provides a clear and uncontested position regarding our issue. If a teacher inadvertently causes a mishap during the administration of physical punishment resulting in harm being done to the young student, is he exempt from criminal liability? Is the student entitled to monetary compensation (i.e., nezek)? Though a Jew is liable for intentional, negligent and accidental damage caused to his fellow Jew, nevertheless the teacher-student relationship is an exception to this rule. As the Talmud instructs, a teacher who strikes a student inadvertently injuring him or causing his death is exempt from paying damages or criminal punishment, respectively. The rationale offered in the Talmud is that the educator is “engaging in a mitzvah.”",
"The Talmud adds a crucial caveat. The teacher who administers reasonable corporal punishment is exempt from liability. However, the teacher who employs excessive force is criminally liable and damages will be awarded to the injured party.",
"Into what conceptual-axiological framework does the practice of teacher-imposed corporal punishment fit? Is it a one dimensional act or does it involve a tense and dialectical action? The Talmudic posture, reminiscent of a Tosefta’s ruling, reflects a polarity, the balancing of two commandments. On one hand, there is recognition of the legitimate goal of educating children. An educator, engaging in the commandment of “hinnukh” (i.e., education) or “tokhahah” (i.e., reproof) may employ force as a legitimate means to promote the welfare of a child. On the other hand, the Talmud must reckon with the general prohibition against “habalah,” i.e., wounding. In effect, the halakhic norm of the allowance of the employment of force in an educational setting is an illustration of privileged battery, involving a “mattir,” a suspension of the prohibition of habalah. In the absence of the Talmud’s legitimating category of the educator’s performance of a mitzvah, the prohibition of habalah is operative. The “dialectical pull” or tension between the two mitzvot is great, for the “breakdown of the equilibrium” is always an imminent possibility. Accordingly, if the use of force is to express the anger or frustration of the teacher rather than for purposes of the child’s behavioral modification, the act falls under the rubric of habalah.",
"Halakhically, how does one understand this Talmudic posture? A contemporary Torah scholar, Rabbi Dr. Neriah Gutel, suggests that the normative recognition of reasonable corporal punishment by an educator is expressive of the decision making principle “aseh doheh lo ta’aseh” – i.e., when a positive and a negative duty are in conflict and one or the other must be transgressed, priority is accorded to the fulfillment of the positive commandment. Though Rabbi Gutel does not convey to us his reasoning for invoking this principle, the teaching of Rabbi Shaul Nathanson is quite instructive in understanding Rabbi Gutel’s position. According to Rabbi Nathanson, the Jew who while performing a positive commandment simultaneously transgresses a negative commandment, does not intend to rebel against the devar Hashem but rather desires to discharge a positive commandment. Accordingly, there is no halakhic infraction. The halakhic weight accorded to a positive commandment which will suspend a negative commandment resonates in other areas of social interrelationships. As Rabbi Elhanan Wasserman observes, “All the prohibitions between man and his fellow man are only prohibited if they entail wanton destruction . . . all these prohibitions are permitted for a beneficial purpose. . . .” In our situation, the educator’s intent transforms a prohibited act of habalah into a defined and regulated performance serving the educational goals of the Jewish community.",
"How does one define the parameters of this performance? The tension between these two commandments, hinnukh and habalah, involves a quest for equilibrium which results in the talmudic articulation of a norm that essentially sanctions the use of reasonable and moderate force within the educational setting. Is it a mandatory norm, i.e., a hovah? Clearly, our analysis suggests that the talmudic norm of the practice of moderate corporal punishment in the school is permissive and hence discretionary, i.e., reshut. In short, it is a permissive norm, in the sense that it is serves as an exception to the general prohibition against battery. Secondly, it is a discretionary norm. Though physical punishment is allowed in the classroom under certain prescribed conditions, a teacher is not mandated to employ force with his students.",
"Having defined the dialectical structure, and permissive and discretionary nature of this Talmudic norm, we now can focus our attention upon the varying contemporary approaches which reflect a case study in the exercise of halakhic discretion. Discretion is the authority accorded by the halakhic system to each and every arbiter to choose among different possible solutions, each of the alternatives being legitimate. It is not being claimed that an arbiter is sometimes free to decide on the basis of a whim or bias. Neither is it being advanced that an arbiter is ever totally free from the control of authoritative standards and prescribed canons of interpretation of the halakhic decision making process which limit his discretion. Rather the claim is that the resolution of our issue is predicated upon the presence of a number of options, each of which will be legitimate in the framework of the system. Where discretion exists, it is as though the system is announcing to the decisor, “I have determined the contours of this talmudic norm (i.e., reasonable force in the school is permitted). From here on, it is for you, the arbiter, to determine the applicability of the Talmudic norm, for I, the system, allow you, the arbiter, to choose.”",
"In our scenario, we have observed that the system defines the norm of the employment of physical punishment in the classroom as discretionary. In effect, the arbiter stands before two normative possibilities. The arbiter can either direct the teacher to utilize reasonable force in the classroom or instruct the teacher to refrain from using force. Each directive would be legitimate and would accord with the nature and the dictates of the Talmudic norm.",
"How did the various contemporary decisors resolve our issue? For Rabbi Moshe Feinstein, prior to employing physical force, teachers ought to ask themselves these questions.",
"1. What is my intent in administering this type of force?",
"2. To what am I responding?",
"3. What did the student do?",
"4. Can this form of punishment resolve the situation?",
"5. Do I have any alternatives?",
"In short, three factors are relevant: the educator’s intent in administering corporal punishment, the nature of the force, and the circumstances surrounding the situation.",
"The above questions delineate the broad parameters which determine the reasonableness of imposing corporal punishment. First, Rabbi Feinstein contends, teachers can use physical punishment if their intention is to control, train or educate the student through the use of force. In fact, there is evidence on record in the secular professional literature that physical force per se is not harmful and is effective under certain conditions. However, if the administration of force is to express anger or frustration toward the student rather than motivated for educational reasons, Rabbi Feinstein concludes that the educator will be criminally liable for any assault. Second, the nature of force utilized and the number of times the student is struck become relevant considerations in determining the reasonableness of the punishment being employed. In fact, the scope of the teacher’s privilege to use disciplinary force is more limited than the parental privilege. Third, the student’s age, physical condition, and developmental level ought to be factored into the equation. Finally, for Rabbi Feinstein, the strongest argument against the use of force is the availability of alternative methods of educational discipline. The administration of force is a last resort in disciplining a student. Misbehavior can be prevented by appropriate verbal responses. For Rabbi Feinstein, communications to the student must be consistent with the teacher’s feelings. If teachers say one thing but convey something different with their tone or facial expressions, then the child receives a mixed message that is confusing. A teacher should communicate his message in a sincere and warm manner.",
"Focusing upon Talmudic dicta, reviewing and appraising all the arguments marshaled by his predecessors and then arriving at a cogent and persuasive position, Rabbi Feinstein defines the parameters of this Talmudic norm. His position reflects an articulation of a standard that essentially defines the often thin line between acceptable and improper physical punishment and requires the use of force to be moderate rather than excessive. If implemented properly and only as a last resort, this standard provides a viable defense to teachers who use inconsequential force. However, a teacher’s privilege does not extend to instances of abuse or assault charges.",
"A diametrically opposing position is suggested by Rabbi Hayyim David Halevy. Rabbi Halevy writes:",
". . . everything is dependent upon the educational character of the individual, the locale, societal conditions and the like, and the use of physical force for education, even though it is halakhically permitted, may not achieve its purpose.",
"For Rabbi Halevy, “societal conditions” can be invoked as a factor in rendering a decision. If these conditions reflect a disapproval of the use of force in an educational setting, Rabbi Halevy posits, Halakhah ought to reflect the societal consensus regarding this matter.",
"Interestingly, Rabbi Samson Raphael Hirsch, a nineteenth century arbiter and educator, arrives at a similar conclusion, albeit from a different perspective. He observes:",
"We will be the last ones to recommend corporal punishment and we do not tend to agree with the opinion that a teacher who does not know how to control ongoing incidents in the school without meting out physical force is the appropriate teacher. This matter especially applies to parents. If the child conditions himself to his parental criticism due to his fear of the potential use of force . . . his ethical impulse will be compromised and will fail to be attentive to his teacher’s directives. . . .",
"For Rabbi Hirsch, tolerance for corporal punishment is a highly problematic stance. The practice impairs the halakhic sensitivity of the child. Utilizing his intellectual perceptions and without recourse to empirical evidence which indicates that the imposition of force promotes immoral behavior, Rabbi Hirsch opts for nonviolent alternatives for educating children. Both Rabbi Hirsch and Rabbi Halevy fail to endorse the employment of physical force in the classroom. Whereas for Rabbi Hirsch, the power of the intellect (i.e., sevara) serves as the grounds for rendering his decision, Rabbi Halevy utilizes societal reality as a factor in his halakhic calculus. In effect, the system allows each arbiter to choose between competing rationales (e.g., sevara vs. social realia) as grounds for declining to invoke the talmudic norm.",
"Is Rabbi Halevy’s approach innovative? It is important to recognize that this line of reasoning was adopted over seven hundred years ago, by Rabbi Asher b. Yehiel (known by the acronym: Rosh) and Rabbi Moshe b. Nahman (known by the acronym: Ramban). As the Ramban observes: “Every man smites his son and strikes his student”; and the Rosh notes: “In the manner that young children are physically punished and are pulled by their ears.” In short, as Rabbi Gutel concludes, for both the Rosh and the Ramban, social realia serve as admissible data for arriving at a halakhic decision. Since, in their respective communities, the administration of force in the classroom was prevalent, therefore, these arbiters approved of the practice. On the other hand, due to the fact that the practice is socially incongruent with his times, Rabbi Halevy opposes the continuance of this practice.",
"III.",
"Our comparative examination of Halakhah and American law merits analysis in defining the role that social and moral norms must satisfy in each legal system if they are to figure in the calculus of judicial reasoning concerning an educator’s employment of force in school.",
"American law has put its weight behind the social norm which continues to endorse this practice. The original social reality that gave rise to the legal norm, and upon which basis alone the norm continues to be defended, remains the underlying matrix of the legal norm. Presently, in the mind of the American courts, the social norm of condemning ostensibly unnecessary acts of violence either is incongruent with applicable policy or lacks the requisite social support to overturn the legal norm sanctioning the continuance of the practice. In the future, courts may take the lead by overturning this legal norm and establishing a new legal rule reflective of a changed social reality. For American law, the legal norm is predicated upon a given social reality. In the words of a contemporary scholar, “Legal norms are primary expressions of and means of reproducing the ‘shared values’ that function as the integrating glue in liberal societies, orienting everyone’s highly differentiated tasks toward a set of common social purposes.” In short, the American legal system posits that this extralegal source is legally significant. Social realia are determinative in defining the content of a legal norm.",
"How do halakhic authorities understand the role of societal conditions in rendering a decision regarding this practice? Is community consensus self-validating? Are the Rosh’s and Ramban’s rulings simply a reflection of a particular historical situation, namely medieval societal approval of corporal punishment in school? Is Rabbi Halevy’s decision a legitimatization of a trend emerging from a particular cultural-socio context, i.e., contemporary communal disapproval of the use of physical punishment? Are the halakhic rulings regarding this matter contingent upon time and place, varying with the vicissitudes of historic exigencies and changing value perceptions? Does a particular arbiter’s decision reflect an abrogation of a preexisting halakhic norm?",
"Upon careful analysis, our presentation would hardly call for such an unwarranted conclusion. Our examination indicates that the halakhic applicability or non-applicability of this practice is an issue resolved by a decisor rather than predetermined by socio-cultural reality. Secondly, it is the function of the halakhic system to provide the arbiter with normative guidance for addressing life situations. Halakhah responds to the challenge in accordance with its own inner, immanent logic, on its own terms and on the basis of the prescribed methods, procedures, and canons of interpretation of its decision making process.",
"In our case, the Talmudic norm is an a priori category posited by the system. It is the function of this norm to provide guidance. In our issue at bar, the Talmudic norm is discretionary. The norm assumes pivotal significance allowing for two normative possibilities: the employment or rejection of the practice of utilizing reasonable force within the framework of the classroom. Since inherently the norm is non-mandatory, the system allows the arbiter to decide whether to invoke the norm or not.",
"As we have shown, the grounds for the applicability or non-applicability of the talmudic norm among contemporary decisors are varied. Rejecting logic as a justification for refusing to invoke the norm, Rabbi Halevy asserts that social realia are admissible data and serve as the grounds for refraining from applying the norm. On the other hand, according to Rabbi Feinstein and other contemporary decisors, given that the legitimacy of the use of moderate punishment in school is pursuant to the talmudic norm, buttressed by their understanding of the halakhic canons of interpretation and prooftexts regarding our issue – then in the absence of the efficacy of nonviolent alternatives for disciplining children, moderate force by the teacher is permitted in the classroom. In sum, for both arbiters the norm allows for varied and diametrically opposed positions. Throughout the decision making process the norm has neither been amended nor abrogated. It remains authoritative, offering guidance to each arbiter to arrive at his particular decision.",
"Hopefully, our study reflects an insight attributed to Rabbi Samson Raphael Hirsch. In homiletic fashion, Rabbi Hirsch interprets the question “Have you established prescribed times for Torah?” (Shabbat 31a) in the following manner: Prior to entering the world-to-come, every Jew will be asked whether he has shaped the Torah to the times or the times to the Torah. Indeed, the Talmud’s unequivocal response is that a Jew’s responsibility is to shape the times by the Torah.",
"Note: Parental corporal punishment",
"The suggestion has been advanced (see Gutel, supra n. 39, at 183–187) that the controversy between Rabbi Yehiel Weinberg (Teshuvot Seridei Esh 3:95) and Rabbi Eliyahu Dessler (Mikhtav me-Eliyahu, Bnei Brak, 5724, 3:360–362) hinges upon the acceptability of factoring modern psychological findings into a halakhic decision.",
"According to Rabbi Weinberg, these data are relevant considerations in arriving at a decision. However, for Rabbi Dessler, only “the words of Hazal, rishonim and minhagei Yisrael” (lit. the words of our Sages, early decisors and Jewish customs) serve as ingredients in rendering a decision.",
"A careful reading of their positions leads us to a very different conclusion. Pursuant to the halakhic norm, parents are permitted to employ force upon young children. However, there is a prohibition to impose this type of punishment upon older children (Moed Katan 17a; for an exhaustive list of authorities who subscribe to this Talmudic norm, see Even Hain, supra n. 35, at 217–223).",
"In his responsum, dealing with a delusional older child (15–16 years) possessed by legerdemain, Rabbi Weinberg advises the parents to follow modern pedagogical directives and employ nonviolent forms of discipline to modify their son’s behavior. Clearly, Rabbi Weinberg’s mention of professional findings was simply advanced in order to show the psychological soundness of the preexisting halakhic norm which prohibits the use of force with older children. His use of psychology is expository, i.e., to probe the profundities of the norm.",
"Similarly, in his discussion dealing with the privilege of employing force with young children, Rabbi Dessler argues vehemently for legitimating the practice of corporal punishment based upon the teachings of the Jewish tradition. (In addition to Rabbi Dessler’s reliance on the teachings of the Gra and Luzzato, there are ample aggadic sources which embrace his position; see Even Hain, supra n. 35, at 250.) Here again, the decisor is utilizing the wisdom of our halakhic ethical traditions rather than modern psychological data for heuristic purposes to explain the cogency of the halakhic norm. Neither Rabbi Dessler nor Rabbi Weinberg is addressing our question of the admissibility of non-halakhic sources as a factor in rendering a decision.",
"Note: 5749 “Kol Koreh” of Israel’s Chief Rabbinate regarding Parental Corporal Punishment",
"On the fourth day of Adar 1 5749, the former Chief Rabbis of Israel, Rabbi Abraham Shapiro and Rabbi Mordechai Eliyahu issued the following “kol koreh” (i.e., proclamation):",
"In the last few years, there have been numerous reported incidents of physical punishment of children and even physical abuse. . . . We shudder that the phenomenon is occurring among our Jewish brethren; that parents and adults will exploit their power and their family position against babies and young children . . . those parents who encounter difficulties in child-rearing and therefore resort to force and emotional abuse should turn to counseling for proper guidance . . . in child rearing.",
"(Z. Heilbaron, 46 Safra le-Saifa, 79, 92[5754], Kaplan, supra n. 37, at n.149.)"
],
"Chapter 6; Child Custody; A Comparative Analysis": [
"Child Custody: A Comparative Analysis",
"The purpose of this presentation is to give an apercu of the varying approaches for the disposition of child custody cases developed by American law during this past thirty years and the Rabbinical Courts of Israel (hereafter: the Beit Din), a contemporary repository of the sources of Halakhah.",
"Though there will be occasion to allude to the substantive content of American law, and the norms of Halakhah, it is the jurisprudential perspective rather the substantive content which is the primary theme.",
"1. American law",
"A parent’s relationship to his child may be viewed as a status carrying with it certain responsibilities and duties owed to the child with reference to care, education and support. When a family breaks up through death, divorce, separation, child neglect or abandonment, the individual who performs most of the parental functions, who lives and cares for the child is said to have custody of the child, even though someone else may exercise some other parental rights and obligations.",
"In determining a custody dispute between natural parents and proceedings involving a natural parent and a third party, American courts have frequently based their decisions on two doctrines. The first of these doctrines, which may be called “the parental right” theory, establishes that natural parents unless declared unfit have a right to custody of their children upon the severing of marital ties. The parental doctrine is justified based upon the assumption that a natural parent will most adequately fulfill the child’s needs.",
"Other American courts recognize that the question is not one of the rights of parents or others to custody but the right of the child and of the state to place the child in an environment most conductive to its welfare. While it is generally proper and fitting that a parent should have custody of a child, this is only true to the extent that it will be conducive to the child’s welfare. Consequently, custody may be taken away from either or both parents if the welfare of the child demands such action.",
"This does not mean however, that a child may be taken away from the warmth and security of the place he knows as home merely because the child will be given better economic, social and educational conditions elsewhere. An extreme interpretation of this doctrine known as “the best interests of the child” doctrine could eventually lead to a redistribution of the entire minor population among “the fitter” members of the community, a policy the courts have declined to implement.",
"Before “the best interests of the child” doctrine comes into play, some event or behavior must have terminated the parental right to custody. The natural parents possess a prior right only to be forfeited by separation from their child over a long period of time, by abandonment, neglect or gross unfitness as parents. Consequently, poverty of the parent is itself no sign of unfitness, and the fact that another party may be financially more qualified to assume custody of the child is irrelevant.",
"Seemingly, the conflict between these two basic doctrines (parental rights v. best interests of the child) is more an issue of semantics than substance, more apparent than real, since even those courts which apply “the best interests of the child” doctrine firmly support the thesis that one of the most significant determining factors as to what constitutes the child’s welfare is custody by his natural parents. Since both doctrines seek the same basic objective from two different perspectives, it seems to make little difference whether the termination of parental rights is rationalized in terms of the child’s best interests or parental unfitness. Consequently, some courts and legal commentators equate the two doctrines.",
"Of course, the two approaches are not necessarily at variance with each other. Certainly, no court likes to think that its decision undermines the child’s best interests; but the rationalization should be distinguished from the rule of the case. The fact that the courts themselves frequently go to great lengths to show that in a given case the affirmation of a parental right to the child does not undermine the child’s best interests, in effect implies that these two approaches may lead to different outcomes.",
"To focus best upon the practical differences between these two doctrines, one must distinguish between custody proceedings involving natural parents and custody contests between a natural parent and a third party.",
"The last century saw the demise of the common law notion that a father had a right to custody of his child, and now statutes have been enacted in state legislatures that the place the mother and the father on an equal footing. Nevertheless, a paradoxical situation developed. The legal rights of the father to custody of the child which were abrogated by the various legislatures were only replaced by a judicial recognition of the rights of the mother to custody. Despite the equalization statutes, if everything is equal and in the absence of compelling reasons of maternal unfitness, until approximately 35 to 40 years ago, the courts have usually awarded custody to the mother, particularly children of tender years.",
"Whereas a former strict application of the parental right approach would result in an automatic preference for the father assuming he is fit, until the late 1970’s and early 1980’s preference was accorded to the mother assuming she is fit. Though few would disagree that there is psychological data to legitimate the preference, commonly known as the tender years presumption to operate in favor of the mother, the blind acceptance of this shibboleth ignores the empirical data demonstrating that “mothering” may be a function independent of the gender of the individual performing it.",
"Adopting the perspective of the best interests approach would require the courts to make a full scale inquiry into the relevant data concerning the child’s actual welfare. In fact, with the rejection of the tender years presumption by the courts and state legislatures in favor of either awarding physical custody to the father or by incorporating what is called joint custody or shared parenting, the child best interests doctrine was employed to make an in-depth inquiry to arrive at the best parenting arrangements.",
"Undoubtedly, custody proceedings involving a natural parent and a third party offer the greatest opportunity for separation of parent-oriented factors from child-oriented factors in custody dispositions. The importance of the nuclear family and the traumatic effect on children separated from their parents, particularly their mother, is supported not only by common experience but by a vast literature in the area of child psychology and psychiatry. Consequently, many courts who adopt the best interests of the child approach conclude that in a contest between a natural parent and a third party, the child’s welfare requires an award to a parent.",
"2. Halakhah",
"In order to present the approaches of the Rabbinical Courts of Israel to child custody proceedings, it is necessary to compare the position of American law and Halakhah concerning the relationship of child custody to child support.",
"When a family breaks up, due to death, divorce, separation or child abandonment, the various elements of the custody relationship have to be dealt with separately by the courts. Thus, one parent may exercise certain rights and have certain obligations vis-à-vis the child despite the fact that custody of the child has been awarded to the other party or a third party.",
"If a parent did not have custody of his child would this be tantamount to absolving the parent from his legal duty of child support? Is the legal duty of support given in reciprocation (i.e. in exchange) for the parental right to custody? Consequently, if in a divorce decree, custody is awarded to the mother, is the father who is obligated to support his child, exempt from his duty?",
"Invoking the principle of reciprocity, common law and early twentieth century American law exempt the father from child support, upon awarding custody to the mother. The prerequisite for invoking this principle of reciprocity is the recognition of a parental right to custody, i.e. the parental right doctrine. The best interests approach which imparts recognition to the child’s right logically excludes the invoking of this principle of reciprocity.",
"Whereas common law and early twentieth century American law argue that the parental duty of support is in exchange for the parental right to custody, generally speaking Halakhah contends that mezonot yeladim, child support, is determined independently of any formula of reciprocity. According to the majority authorities, a father is primarily liable for child support by virtue of his paternity, irrespective of whether the marriage has been terminated by death or divorce, or whether the child was born as a mamzer, due to an incestuous relationship. Acknowledging that the father’s duty to support his child is by virtue of his paternity, the Beit Din, in numerous decisions rules that the child is entitled to paternal support even if in a given situation custody has been awarded to the mother. Furthermore, even if a wife is found guilty of conduct which justifies divorce, the husband remains obligated to support his child. Similarly, the fact that the mother has custody of his child will not entitle the father to refuse to pay for his son’s education. Thus, in resolving matters dealing with the parental duty of support of a child and child custody, the Beit Din is more concerned with the resolution of a human problem than with spinning out a symmetrical pattern of duties and rights based upon the principle of reciprocity.",
"Since the doctrine of reciprocity, as we discussed earlier, is based upon a parental right approach to custody, does the Beit Din’s rejection of this doctrine imply a rejection of the parental right approach? Without addressing all the aspects governing the parent-child relationship, one example will suffice to illustrate that the reciprocity principle acknowledging a parental right perspective is operative in other realms.",
"According to Halakhah, the finds of a son belongs to the father in consideration for the support given to the child. The father is entitled to the finds though the child is of age (i.e. beyond the age he is obligated to maintain him) provided that the child is his dependent. But if the child is not supported by him, the finds belong to the child, even though the child is not of age. Invoking the halakhic rule “for their hand (i.e. the minors’ – AYW) is like his hand (the father’s – AYW),” certain decisors maintain that a son’s earnings equally belong to the father. In other words, the formula of reciprocity is applicable both with regard to a son’s earnings as well as to his finds. Though the Beit Din has not rendered a ruling regarding a son’s earnings, the Beit Din invokes the reciprocity principle regarding a son’s finds, acknowledging in effect a parental right perspective.",
"As such, the Beit Din recognizes the rule that a father’s entitlement to his son’s finds was given in consideration of the father’s duty of child support while simultaneously rejecting the notion that the parental right of custody was given in consideration of the father’s duty of child support. Why is the reciprocity formula invoked in one matter and rejected in another?",
"Despite the fact that we have not conducted a comprehensive and systematic examination into all the aspects governing the parent-child relationship, we can offer the following rationale for understanding the Beit Din’s posture and ultimately for defining the majority approach being adopted in resolving custody contests.",
"Though a child’s finds and earnings belong to the father, torts committed by a parent vis-à-vis his minor child are actionable. To allow even parents halakhic rights over children beyond paternalistic motivations, would imply a sanction to a relationship of possessive rights vis-à-vis another individual; a relationship though enforced by Roman law that is alien to Halakhah.",
"A review of some of the Beit Din decisions will demonstrate that a father has a right, albeit not a proprietary one, in his children, both sons and daughters. Following in a well-trodden mesorah, albeit a minority view, a mother has a zekhut, a right vis-à-vis the father to have custody of her children if their best interests dictate such an arrangement. However, a mother is not obligated to employ the right and therefore she does not have to accept custody of her children. She may send them to their father and he may not refuse to accept them and should he file against her in a beit din he will not succeed in his claim to transfer custody to the mother.",
"The ramification of a father’s right to custody is found in a series of the Beit Din’s decisions. For example, the Beit Din authoritatively cites Rambam’s view that if the boy above the age of six should desire to remain with his mother without his father’s consent; the father is entitled to refuse to pay his maintenance. As Rabbi Yosef Kapah states:",
"Parents are not inanimate objects. Also, parents are composed by a body and soul and have feelings. And a mother has a natural right to find emotional satisfaction to caress her children. Parents have the right to receive emotional satisfaction to see their children grow and develop properly . . . And in Shulhan Arukh EH 82:7 it states that after attaining six years a father can say if he does not live with me I will not support him and recently the Beit Din ha-Gadol exempted a father from maintaining his daughter who declared that she does not want to see her father and does not tolerate him. . . .",
"A Haifa Regional Beit Din rules that a father was entitled to withhold support from a daughter who refused to allow her father visitation privileges. The decision was appealed to the Beit Din ha-Rabbani ha-Gadol which agrees with the lower beit din’s decision and, implicitly following Rabbi Dovid ben Zimra’s view, states a different rationale:",
"According to Halakhah, the genealogy of children is traced to the father, as it is written “To their families to their male ancestors,” and the father’s family is called a family and not the mother’s family. Therefore, he (the father – AYW) is obligated in supporting them and raising them. As such he has the full right to demand that they be raised by him and benefit from all of what is involved. . . . However, the rabbis were concerned with the children’s best interests and found it proper to annul the father’s custodial right . . . and establish that a son be with his mother until the age of six and the daughter would always remain with her mother. . . . However, in doing this the father was not deprived of his basic rights regarding his children which encompass continuing ties between him (the father – AYW) and them (the children – AYW) during the time they were in their mother’s custody. . . .",
"To state it differently, implicitly following an earlier ruling of the Beit Din, even if custody has been awarded to the mother, implicitly following earlier rulings, the Beit Din ha-Rabbani ha-Gadol argues that a father has the basic right to be granted visitation privileges. Consequently, the mother is proscribed from moving away to another place which preempts the father from visiting his child.",
"Finally, it is unsurprising where a father questions the actual paternity of the child that the Beit Din refuses to direct a daughter to visit her father.",
"In sum, there are Beit Din judgments which espouse the parental right to custody.",
"On the other hand, there is no question of parental rights in custody proceedings, the majority view of the Beit Din explains. Lest one misconstrues the Talmudic rule that “the daughter remains with her mother regardless of her age” or that “the son is with his father after the age of six” as connoting the sanction of possessive rights, the Beit Din reaffirms the words of a sixteenth century legist, Rabbi Shmuel de Medina who opines that custody situations focus upon “the rights of the child” rather than the rights of the parents.",
"In fact, by focusing upon the child’s right, in effect the Beit Din is dealing with the parental duty to provide proper care to his child rather than a parental right. Halakhah, similar to other religious legal systems, is primarily a system of duties owed, rather than rights possessed. Consequently, the primary legal category in custody proceedings is the “hiyuv,” i.e. the individual’s duty rather than his prerogative. If the doctrine of the logical correlativity of rights and duties assert that every duty entails the existence of a correlative right, then in custody cases, corresponding to the parental duty of child care is the right of the child to be provided with proper care. Therefore, lest one focus exclusively on parental rights, the Beit Din focuses upon the child’s right.",
"Though the majority of the battei din reject the parental right doctrine, one could seemingly argue that the Beit Din accepts the best interests of the child approach, developed by American law which recognizes the child’s right to proper care. And yet, though in both American law (a right-based system) and Halakhah (a duty-based system), corresponding to the parental duty of child care there exists a child’s right to be provided with proper care, it is important to distinguish which is derivative from which.",
"There is a difference between the idea that a parent has a duty to provide a proper home because the child has a right to receive proper care and the notion that the child has a right to be provided with a proper home because the father is duty-bound to provide proper care. In the first instance where one is dealing with a right-based theory, one justifies the duty by pointing to the right; if one requires justification, it is the right that one must justify. Consequently, the best interests of the child doctrine, a by-product of a right-based system, the focus is on the child’s right, whereas in Halakhah, the focus is on the parental duty of care.",
"Furthermore, there is a difference in emphasis between the neglect of duty and the interference with a right. To focus upon duties and their breach is to concentrate necessarily upon the person who has the duty; it is to invoke criteria by which to make moral assessments of his conduct. Rights, on the other hand, call attention to the injury inflicted; to the fact that the possessor of the right is adversely affected by the action. Here, adopting the perspective of the child’s best interests approach propounded by American courts, the individual at the center is the child who benefits from the parent’s compliance. In Halakhah, the individual at the center is the parent who is complying with the will of Hashem. As stated by the Beit Din:",
"Here we have only duties from one side, the father who is obligated to support his child and is obligated to supervise and care for him.",
"Though both parents may assume the duty for the care and welfare of their children which would result in joint custody or what is called shared parenting, however frequently the involved parties fail to be mutually agreeable to such an arrangement. Consequently, adopting the mesorah of those Poskim who espouse “tovat ha-yeled” (the child’s best interests), the beneficiary of the parental duty as the guideline to resolve custody battles, the Beit Din employs rules which result in either child placement, usually with the father who is the natural guardian of his children or the mother who is the appointed guardian of her children.",
"In the case of a son below the age of six, the rule of thumb adopted by the majority of authorities is that the welfare of the child of tender years is normally best served by placing him with his mother with the understanding that the father is entitled to visit his son to fulfill his educational responsibilities vis-à-vis his child. Above the age of six, the son must live with his father, since at this age the child requires intensive Torah educational guidance. Assuming the father is non-observant, there would be still grounds for child placement with his father who can teach him secular education. Following in the footsteps of Rabbi Yitzhak of Vilna, in the event that the father delegates his educational responsibility to a yeshiva to teach his son, then Beit Din rules that the son may be placed with the mother assuming it is in the child’s best interests. Notwithstanding certain Poskim who give custody to the father, the Beit Din rule is that regardless of her age, the daughter remains with the mother to be instructed in the ways of moral propriety. In other words, despite the fact that a father has a duty to educate his daughter, nonetheless the mother’s ability to inculcate certain values trumps the father’s obligation and the daughter remains with the mother. Even if the mother moves away to another city and in effect the move preempts the daughter’s (as well as the son’s) accessibility, such a move is recognized provided it is in the child’s best interests.",
"Whereas in other areas of man’s activities, Halakhah enforces duties by a system of civil law and a plaintiff asserts rights against individuals who fail to comply with their halakhic duties, in resolving conflicting parental claims, the Beit Din as “the father of the orphans” intervenes on behalf of the child. Whether one assumes that the Beit Din’s intervention is legitimated by the general authority entrusted to them to engage in enacting takanot (legislation), or whether one assumes it is based upon the binding force of minhag (custom), the implication is that the dayan does not merely apply the existing rules of child custody to cases in doubt but in situations lacking any clear precedent, the dayan acts in a legislative capacity or based upon custom. Does this mean that a dayan is free to arrive at decisions uncontrolled by authoritative standards?",
"Presumably such a conclusion is forthcoming. For example, if it is proven that the father of a seven year old son is not carrying out the duties of fatherhood properly, the Beit Din is empowered to entrust the child to his mother. Furthermore, in other Israeli decisions, the Beit Din would have permitted a daughter to reside in the United States, despite the inaccessibility of the father who resides in Eretz Yisrael. His inaccessibility may preclude him from exercising his rights vis-à-vis his child. Seemingly, the Beit Din is acting arbitrarily.",
"The crucial question is what happens when the Beit Din determines that no rule is applicable in a particular case and the dayan wishes to overrule a rule? There is no doubt that the rules established by the Poskim find authoritative support in the Beit Din’s decisions. For example, psychiatric findings will be considered by the Beit Din in order to arrive at a reasonable assessment of the physical, mental and moral well-being of the child whose custody is at issue. However, whereas a Beit Din will accept the testimony of a psychologist who testifies that “in light of the particular circumstances, the seven year old boy should remain with his mother”; it will reject a testimony that states “the natural needs of a seven year old son are to be with his mother.” Whereas, the former testimony is valid testimony and conveys to the Beit Din that the rule that a son above the age of six is to be with his father is rebuttable in the particular case, the latter testimony conveys the establishment of a new rule.",
"The fact that a rule may be rebuttable given the particular circumstances of the case indicates that the dayan’s decision does not merely entail the mechanical application of a rule. Resolving custody cases in Halakhah involves more that the formal application of rules. In fact, the Beit Din points out these rules are hazakot, presumptions. Moreover, the application of these rules is controlled by a principle. Whereas a rule attaches a definite consequence to a detailed state of facts, a principle prescribes highly unspecific actions. It is in accordance with this usage of the terms, that we can speak of a principle underlying a certain rule, determining its scope and justifying exceptions to it.",
"It is indeed a principle which is most energetically at work here, carrying weight in resolving custody cases by the Beit Din. On numerous instances, the Beit Din states that the operative principle here is the consideration of the material, social, spiritual and educational interests of the child. The principle stands behind every rule.",
"The extent to which the principle of “tovat ha-yeled” is utilized for different purposes can be seen by a brief review of some of the decisions of the Beit Din. Perhaps the most extensive and conservative function of a principle is to interpret rules. Consequently, in one situation the Beit Din contends that the child’s welfare is the underlying rationale which lies at the base of the rules of custody disposition. As an efficient principle, it imparts coherence of a purpose to a realm of Halakhah, namely custody arrangements by explaining the rules in accordance with one principle and thus demonstrating that we are not dealing with a mere collection of rules.",
"Secondly, through the medium of the application of the principle, the scope of the rules may be widened. No rule can be formulated in such a way that no situations can arise in which its application is open to question. Therefore, “non-standard cases” will emerge requiring the exercise of judicial discretion via the invoking the principle of tovat ha-yeled.",
"For example, if in a given situation, the father’s psychological instability prevents him from fulfilling his educational responsibilities towards his son, the Beit Din states it is incumbent upon a third party or an educational institution to receive custody of the child. However other battei din have refused to authorize an educational institution to assume the father’s duties. Given these circumstances, the son remained with his mother. To state it differently, here the Beit Din acknowledges the operation of tovat ha-yeled as a vehicle to interpret the rule but felt that the principle does not encompass extending the rule that a father has custody of his son who is above the age of six to an institution becoming locus parentis, assuming certain parental responsibilities.",
"What happens where there is a conflict of rules? On one hand, there is a rule that every son above the age of six is placed with his father; and on the other hand, there is a rule that the child’s wishes are a relevant factor in his own placement. If the child is old enough to form an intelligent judgment about his custody and his judgment has not been tainted by the provocation and instigation of a parent, his wishes will be respected by the Beit Din. His wishes will be respected both with regard to visitation arrangements as well as the choice of the institution for Yeshiva schooling. These series of ruling regarding the child’s wishes are based upon tovat ha-yeled.",
"Since the principle of tovat ha-yeled is more general than the rules, in cases where the Beit Din ascertains that the application of the existing rule would undermine the principle, the Beit Din arrives at a decision without recourse to the rule. For example, although the rule of custody dictates that a boy above the age of six ought to remain with his father; considerations of tovat ha-yeled will be the determining factor. Consequently, a son above the age of six will remain with his mother who is providing a Torah education rather than be placed with a father who is exhibiting schizophrenic tendencies. In another case the Beit Din awarded custody to an adulterous mother since the father’s behavior manifested an unwillingness to raise and educate his older son. In another situation, the Beit Din recognizes that a father may develop a psychological-affectionate relationship equivalent to that of the mother and consequently, the father retains custody of the young child. Finally, as we mentioned that according to Rambam should a boy above the age of six desire to remain with his mother, his father is entitled to refuse to pay his support, the Beit Din concludes that if the child’s best interests dictate that he remain with his mother, under such circumstances, the father will remain obligated to maintain his son. In the aforementioned cases, the principle of tovat ha-yeled serves as the grounds for the Beit Din’s decisions.",
"Though tovat ha-yeled may provide the basis for resolving cases without application of the rules, serve as a vehicle to interpret rules, be employed as grounds for exceptions to the rules and serve as a means to reconcile conflicts between rules of custody, nevertheless, on certain occasions, the Beit Din observes that this principle may be overridden by a principle from another sphere of Halakhah. For example, what happens if a father desires that his seven year old daughter settle with him in Eretz Yisrael? On one hand, there is a rule that “a man may compel his entire household to settle in the land of Eretz Yisrael” which reflects the divine commandment incumbent upon each individual Jew to settle in Eretz Yisrael. On the other hand, the child’s welfare dictates that the daughter remains with her mother. By placing the daughter in her father’s custody we advance the mitzvah of settling in Eretz Yisrael and by placing the daughter with the mother we serve the child’s best interests. One Beit Din decides that fulfilling the mitzvah was paramount and the other rules that the child’s welfare overrides the mitzvah.",
"The position that the Beit Din is free to act arbitrarily in custody cases is vigorously challenged by the above cases. To argue that a beit din is free to reach a decision uncontrolled by authoritative standards is to fail to attend to the interplay of rules and principles operating in these cases. Certainly, our presentation suggests that there is more than one solution to a problem and different battei din may arrive at different conclusions. There will be instances where one panel will widen the scope of a rule whereas another panel will argue for a strict reading of the rule. Secondly, tovat ha-yeled may be subject to varying interpretations.",
"In conclusion, the interplay between a rule and a principle in custody cases reflects how a panel will attempt to resolve a case based upon the child’s best interests perspective. On the other hand, for those battei din who espouse the approach of the parental right to custody, in the final analysis their determination may at times reflect the child’s best interests such as proscribing a mother’s right to move to another country lest the father’s visitation privileges will be extinguished. Moreover, assuming a father’s visitation privileges is a paternal right; he must be accorded the exercise of his right in the case of a son below the age of six and a daughter regardless of her age. In effect, said conclusion comports with the child’s best interests to see and develop a relationship with both his parents. As Rabbi Uriel Lavi, av beit din (presiding dayan) of Yerushalayim Beit Din aptly notes, the difference between the two approaches is only in theory. Except for a situation where a son above the age of six refuses to live with his father, in practice the child’s best interests will always override paternal rights.",
"We can sharpen our comparison of the dynamics of the child custody decision making process as propounded by Halakhah and American law by introducing the framework suggested by a contemporary scholar of American family law. He distinguishes between a judge’s discretion and the application of rules.",
"The history of the law considers many antinomies and therefore must reckon with the opposing values emerging from these antinomies. One of them is the story of an unremitting struggle between rules and discretion. The tension between these two approaches to legal problems continues to pervade and perplex the law today. Perhaps nowhere is that tension more pronounced and more troubling than in family law.",
"As we have shown in American law, rules which embodied paternal and maternal presumptions regarding child placement have been replaced by a judicial determination of who is the fit custodial parent by invoking a child best interest standard which is composed of various factors. In effect, broad discretion is placed in the hands of the judge. The history of American custody law reflects a paradigmatic shift from rules to discretion.",
"On the other hand, in the halakhah of child custody we are not confronted with the stark choice: discretion or rules. Our study has demonstrated that we are encountering the dayan’s search for the right mix of rules and discretion as embodied in the principle of “tovat ha-yeled”.",
"After having analyzed the varying perspectives underlying the treatment of child custody cases by Halakhah and American law, we hope to have avoided Santayana’s reproach that comparison “is the expedient of those who cannot reach the heart of the things compared.”"
],
"Chapter 7; A man receives an improper heter nissuin (halakhic permission to remarry) without giving his first wife a get; Relief via the execution of a \"get zikui\"": [
"A man receives an improper heter nissuin (halakhic permission to remarry) without giving his first wife a get – Relief via the execution of a “get zikui”",
"According to Halakhah, dissolution of the matrimonial bond requires the voluntary agreement of both spouses; failure of one spouse to agree to the divorce action precludes the execution of the divorce. Coercing a recalcitrant husband to grant a get (“a get me’useh”) produces a divorce that is arguably invalid according to the majority of Poskim. Nonetheless, in the absence of a beit din obligating him to give a get, there exists no halakhic impediment for a husband to stipulate that his consent at the time of the seder ha-get (execution of a Jewish writ of divorce) is dependent upon his wife’s compliance with certain conditions, a form of divorce known as gerushin al tenai (a conditional divorce). In contemporary times, numerous Israeli dayanim will allow a wife to appease her get recalcitrant husband by offering material inducement.",
"For many years, our Torah observant community has encountered, both here and abroad, situations where a recalcitrant husband chooses to condition the giving of a get upon receiving certain benefits such as receiving monetary remuneration from his wife, receiving custody of a child, or having certain issues related to the end of marriage resolved in a beit din. Let me share three cases that I have encountered in recent years. One husband would give a get on the condition that he would receive one million dollars from his wife who has been an agunah now for over a decade. In another situation, despite the fact that there was a financial prenuptial agreement which stated that the wife owned her one million dollar home, the husband conditioned the giving of the get upon being able to revisit in beit din whether in fact the home belonged to her. To date, this woman has been an agunah for over six years. Finally, a wife filed suit in civil court in order to address the matter of custody of their children. Though the husband consented to have this matter resolved in civil court, nonetheless, once the court awarded custody to his wife, he conditioned the giving of the get upon his wife’s readiness to revisit the parenting arrangements in beit din.",
"The common denominator of these three cases is that all three wives refused to comply with their husband’s requests and therefore they still cannot remarry due to the fact that a get failed to be given to them by their respective husbands. Furthermore, in two of the cases, the husbands received a heter nissuin (permission to remarry) from a beit din which requires that a get be deposited at the beit din which would be given to the wife if she complied with her husband’s requests. Subsequently, both husbands remarried without giving a get to their first wife. In the third case, the husband has threatened to proceed for a heter nissuin should his wife refuse to accede to his request to revisit the parenting arrangements in beit din.",
"Despite the fact that there has been a minhag (the custom) in Ashkenazic communities dating back to over four hundred years ago to refrain from implementing gerushin al tenai, a practice has reared its head where husbands condition the giving of the get upon a wife’s compliance with certain requests. With the existence of this minhag, get recalcitrant husbands in certain instances have enlisted the assistance of battei din in order to receive a heter nissuin. Given the particular circumstances surrounding these two cases, the issuance of a heter nissuin by the two battei din is, to say the least, halakhically problematic.",
"Let’s begin by first presenting the rudimentary halakhot governing the initiation of a divorce action. (1) A get is the husband’s possession and a get must be given by the husband be’ratzon (voluntarily). (2) In the text of the get, it must be clear that the husband is severing the marital relationship. (3) The get must be written for the wife, (le’shemah). (4) The husband or a sofer (scribe) at the husband’s directive must write the get and the witnesses who will attest to the execution of the get must have heard the husband’s directive to sign the get. (5) The husband or his agent must deliver the get to his wife. (6) The wife must voluntarily accept the get.",
"Seemingly, given that the husband hasn’t communicated instructions to write a get, and the witnesses have not heard the husband’s directive to sign the get, there would be no basis for a beit din writing a get for the wife. Moreover, the absence of a husband’s instructions to write a get precludes the fulfilling the requirement of le-shemah. In fact, numerous contemporary authorities, including but not limited to Rabbi Moshe Farbstein and Rabbi Yitzhak Yosef, have invalidated a third party’s writing of a get if there was no prior authorization given by the husband. Moreover, the fact that the husband refuses to give a get seemingly undercuts the propriety of a third party giving a get.",
"However, there are other Poskim who disagree with the above positions. The emerging question is whether there are grounds for a beit din to issue a get zikui in the event that a husband remarries a second wife without giving a get to his first wife. Zakhin le’adam she-lo be-fanav (conferring a benefit upon a person in his absence) allows for a third party to perform an act that affects a person, without his knowledge, as long as that act comes within the rubric of “a benefit” for him. For example, if a debtor has only one creditor, then a friend of the creditor may seize the property on behalf of the creditor. Or if a husband desires to give his wife a get but she refuses to accept it, it may be a benefit to become divorced under certain conditions and the get is executed in her absence and without her prior authorization. The common denominator in these two cases is that we are invoking the concept of zakhin le’adam she-lo be-fanav.",
"The issue is whether zakhin applies when we take something away from an individual. For example, if an individual neglected to sell his hametz on the eve of Pesah and the hametz potentially would lose its value, can a friend sell it prior to Pesah on behalf of his friend? Or, in our situation where a husband refuses to give a get to his wife and yet receives permission to remarry, can a beit din give it to her despite her husband’s protestations? In both of these scenarios, the person who owns the hametz and the husband who is get recalcitrant will be deprived of something or someone respectively, due to the action of another. To state it differently, we know there is a rule of zakhin le’adam she-lo be-fanav, can we equally confer benefits involving zakhin mei’adam she-lo be-fanav (hereafter: zakhin)?",
"Admittedly, throughout various passages of the Talmud, commentaries, teshuvot (responsa) and sifrei psak (restatements of Halakhah) such as Shulhan Arukh, one finds zakhin being applied in circumstances where a benefit is being conferred rather than being taken away from an individual. However, there are a few passages in the Talmud as well as discussions amongst the Poskim which recognize that zakhin is equally operative in situations where one takes something from an individual. For example, a passage in Tractate Pesahim teaches us:",
"There was an incident with a man who deposited for safekeeping a full bag of hametz . . . But when the eve of Pesah arrived, mice penetrated it and the hametz was leaking out. He approached a rabbi and asked what he should do. At the first hour, he told him “wait”, second hour he told him “wait” . . . at the fifth hour, he told him “proceed to the market and sell it . . . to a non-Jew.”",
"Since the fifth hour was the last hour that the owner of the hametz could benefit from his foodstuffs, the rabbi instructed the man to sell it to a non-Jew before Pesah, because with the arrival of Pesah the hametz would be prohibited to the owner and thus the owner would lose the hametz.",
"Notwithstanding Ketzot ha-Hoshen, Mirkevet ha-Mishneh and a few other authorities, the majority of Poskim, including but not limited to Tosafot, Rabbis Moshe ben Nahman, Nissim of Gerondi, Yisrael Isserelin, Yosef Karo, Moshe Issereles, David ben Shmuel ha-Levi, Avraham Gumbiner, Moshe Sofer, Yitzhak Elhanan Spektor, Avraham Tzvi Eisenstadt, Meir Eisenstadt, Hayyim Ozer Grodzensky, Avraham Karelitz, Shimon Shkop, Shalom Schwadron, Avraham Kook, Eliezer Shach, Shlomo Z. Urbach, Moshe Feinstein, and Uriel Lavi argue that the concept of zakhin encompasses matters where one takes away something from someone.",
"The question is whether there is a basis for invoking zakhin mei-adam in the context of divorce cases. In effect, may one take a get from the husband (who has remarried without a proper heter nissuin) without his consent and give it to his first wife? In light of Ramban’s position we do encounter grounds for validating a get zikui in a situation where the husband did not provide instructions to give a get. Upon a review of his position, we encounter an apparent self-contradiction in his words. On one hand, should there be a husband’s letter directing the sofer to write a get, in pursuance to Ramban, he would be in compliance with the requirement of le-shemah. On the other hand, Ramban contends that the sofer must have received explicit verbal instructions from the husband to prepare the get. Resolving this seeming contradiction, Rabbi Feinstein argues that Ramban’s view is that it must be crystal clear that the husband wants to initiate the process of divorce, i.e. le-shemah. The presumption is that a wife is lav le-gerushin omedet (that she is not destined to be divorced) and therefore there is a requirement of le-shemah. Consequently, if the husband communicates verbal instructions to the scribe or writes a letter that he wants the sofer to draft a get, his intentions are clear and the le-shemah condition is obtained. To state it differently, Ramban is concerned with verifiability that in fact the husband desires to initiate the divorce process rather than that the husband must initiate the process of mandating the writing of the get.",
"Based upon Rabbi Feinstein’s understanding of Ramban, in the context of zakhin, where the husband is absent, the sofer is receiving a directive from the beit din to draft the bill of divorce and is well aware that this procedure is being implemented to benefit the husband. In other words, without a husband’s directive to initiate the process, the get is a hov. However, if there is an absolute unmitigated benefit, divorce is no longer a hov. As such, despite the absence of the husband’s instructions, based upon Rabbi Feinstein’s elucidation of Ramban’s view, the requirement of le-shemah is in effect being verified via the rule of zakhin. Following in the footsteps of Rabbi Akiva Eiger and Hazon Ish, in the words of Rabbi Herzog:",
"Since it is a clear benefit for her, the get will not be a nullity due to the fact that the husband did not instruct . . . it is as if the husband is in front of us and commands . . .",
"Numerous Poskim arrive at the same conclusion, contending that either zakhin preempts the need for a husband’s instructions to the scribe and the witnesses, or the requirement of le’shemah is in effect being accomplished through her status of “le-gerushin omedet.”",
"The question is whether a gilui da’at (an expression of one’s opinion) must have been articulated by the husband prior to executing a get zikui. Generally, in matters of kiddushin for one to invoke zakhin, there must be a gilui da’at from the beneficiary that he desires the conferral of the benefit. Does this requirement extend to matters of divorce? For example, if a husband is insistent that he appoint a shaliah le-holakhah (an agent who will deliver a get to his wife) or actually appointed a shaliah, can a third party invoke zakhin and give a get to his wife? Notwithstanding some authorities who reject the employment of zakhin under such circumstances, and others who mandate a gilui da’at prior to invoking of zakhin, Rabbis Y. Elyashiv and Z. P. Frank argue that one can benefit a husband even if the party conferring the benefit was not appointed as “the agent for delivery.” Rabbis Yehiel Weinberg, Karelitz, and Feinstein conclude that zakhin is effective even without a husband’s gilui da’at that he desires to give a get to his wife, provided that there is an absolute benefit for the husband. Moreover, when dealing with a husband who is a shoteh (mentally dysfunctional in accordance with halakhic criteria), a husband’s gilui da’at to give a get prior to becoming a shoteh is irrelevant in establishing the husband’s benefit. According to these authorities, the same conclusion would equally apply in our situation. Namely, there would be no requirement of a husband’s gilui da’at before establishing the husband’s benefit in giving the get.",
"How ought the zekhut (privilege) to give a get be defined? Rabbi Eliyahu Mizrachi of sixteenth century Constantinople, Turkey, addresses the case of a husband who was apprehensive that he would soon die and his wife would be obligated to engage in yibum (levirate marriage) with his apostate brother. To forestall this possibility, he wanted to divorce his wife prior to his demise. Since his wife was unavailable at that time, the husband appointed a third party to confer the benefit of a get upon her. Given that it is a zekhut that she would not marry her brother-in-law who is an apostate, Rabbi Mizrachi opines that she is divorced via zakhin. And even if she desired to marry him via yibum, she would remain divorced despite her objections because it is in her benefit to be “saved from sin.” A similar definition of the concept of zekhut is offered in contemporary times by Rabbi Z. Nehemiah Goldberg who offers as an example of a husband’s zekhut if he is obligated to pay spousal support and engage in conjugal relations and unable to fulfill his halakhic marital duties due to the fact that he is in a vegetative state. To state it differently, for Rabbis Mizrachi, Goldberg and Moshe Bula, zekhut is defined by halakhic criteria.",
"Some Poskim, including Rabbi Dovid ha-Kohen of Corfu, argue that zekhut is defined by the subjective wishes of the beneficiary of the zekhut. So for example, if in fact the wife wants to remain married to her apostate brother-in-law, invoking zakhin would be ineffective. On the other hand, there are other authorities who subscribe to the posture of Rabbis Mizrachi and Goldberg by sanctioning the implementation of zakhin concerning an apostate or an adulterous wife who refuses to receive a get due to the fact that zekhut hanefesh (spiritual benefit) mandates that such an individual be “saved from sin” and the wife ought to be divorced from her spouse.",
"A case where zakhin was applicable despite a husband’s protest may be found in a letter authored by Rabbi Elyashiv in September 1954, sent to Rabbi Y. Herzog in 1959, and subsequently (around 1990) this letter was incorporated into volume one of his Kovetz Teshuvot, his rulings. Addressing the case of an agunah whose husband was living behind the Iron Curtain and in all probability remarried due to the enforced separation from his wife, relying explicitly upon a decision of Rabbi Yitzhak Elhanan Spektor and implicitly following the mesorah of Rabbi Mizrachi and other authorities, Rabbi Elyashiv rules that the accrued benefit of “saving him from sin” may serve as grounds to employ zakhin even if the husband “stands and screams,” even if the husband would fail to recognize “the spiritual good,” the zekhut not to be in violation of the herem (excommunication) against polygamy. In fact, Rabbi Elyashiv’s proof that get zikui will be operative even in the wake of a husband’s objection is learnt from the case of an apostate wife who refuses to receive a get.",
"Despite the disparity between the biblical prohibition of adultery and the rabbinic ban against polygamy, Rabbi Elyashiv nevertheless released the woman from “igun.” Lest one challenge the soundness of this psak, notwithstanding that there are authorities who claim bigamy is a rabbinic violation, there are decisors who contend that transgressing the herem entails a biblical violation. Even if it is open to debate whether the herem is operative after the fifth millennium (1240 CE), it may be viewed as a minhag (custom) and it must be seen through the lens of a neder (vow) which is grounded biblically. As such, implementing a get zikui ought to be effective.",
"However, other authorities such as Rabbi Yitzhak Yosef and the late Dayan H. Shlomo Sha’anan (in conversation with this author) disagree with our understanding (as well as others) of the position of Rabbi Elyashiv. In their mind, zakhin is operative in Rabbi Elyashiv’s case due to the fact that the husband appointed an agent though he subsequently passed away. As such it is clear that in fact the husband expressed an interest in giving a get to his wife. Had the husband failed to designate an agent, in their minds Rabbi Elyashiv would have refrained from invoking zakhin.",
"Firstly, there is no indication from the context of Rabbi Elyashiv’s ruling in subsection 11 of his teshuvah (responsum) that in fact he was addressing the case of a husband who had appointed an agent. Moreover, even if we would be dealing with this scenario, numerous Poskim contend that under such conditions once the agent dies there is no basis to employ zakhin. Finally, in subsection 13 of the teshuvah Rabbi Elyashiv stresses that a get can be given either by the avenue of agency or via a zekhut gamur, an absolute unmitigated benefit.",
"Clearly even if one would adopt the minority view’s interpretation of Rabbi Elyashiv’s ruling that there is a basis to employ zakhin provided there was an appointment of an agent even if he subsequently died, nonetheless, in a matter of igun, we would follow the majority opinion which would result in a leniency, namely the deploying of a get zikui in the circumstances where a get recalcitrant husband is transgressing the herem of Rabbeinu Gershom by engaging in a bigamous relationship based upon an improper heter nissuin.",
"Our foregoing presentation of the propriety of executing a get zikui for a husband who is transgressing the herem of Rabbeinu Gershom by marrying a second woman without giving a get to his first wife rests upon the following foundations:",
"1. Zakhin mei-adam she-lo be-fanav is operative in accordance with the rule of zakhin le’adam she-lo be-fanav.",
"2. The mezakeh, the one conferring the benefit such as a beit din will communicate to the scribe that the husband ought to be divorced from his wife and the beit din will inform the witnesses that they ought to sign the get which has been prepared by the scribe. As such the le-shemah requirement is fulfilled.",
"3. The mezakeh is empowered to give the get to the wife.",
"4. Zakhin will be effective even without the husband’s prior gilui da’at that he desires to be divorced and/or despite the husband’s objections.",
"5. One may employ zakhin provided there is a zekhut gamur to the husband that he ought to be divorced.",
"6. Zekhut may be defined by halakhic criteria rather than the subjective wishes of the husband, namely an absolute spiritual benefit such as the avoidance of sin.",
"Despite the fact that every foundation presented above was and continues to this very day to be fraught with halakhic controversy, we have shown here as well as elsewhere that there are authorities who will execute a get zikui under certain circumstances. A review of the above six foundations shows that zakhin is a halakhic fiction that, if certain conditions are obtained, in effect empowers the mezakeh to accomplish whatever Halakhah mandates as the husband’s responsibility vis-à-vis his involvement in the get process.",
"In the wake of contemporary instances where a husband receives an improper heter nissuin and proceeds to remarry a second wife without giving a get to his first wife, there is a mesorah (a tradition) of Rabbi Yosef Elyashiv, a renowned Torah scholar for Ashkenazic Jewry as well as a ruling handed down by Rabbi Shlomo Kahana which endorses these foundations and thus facilitates the execution of a get zikui, which in the process conveys a zekhut, namely a husband’s avoidance of sin.",
"Deciding le-halakhah (on a theoretical plane) as well as le’ma’aseh (as a practical judgment) between the competing arguments regarding the readiness to recognize the institution of zakhin as a means to save a husband from sin while simultaneously saving a wife from igun becomes the province of the posek, the decisor."
]
},
"Part II; Rabbinic Authority; The Reality": {
"Chapter 8; Case studies dealing with a wife's claim for bittul kiddushin": {
"Introduction": [
"Explicitly or implicitly relying upon an Israeli beit din decision authored over thirty years ago, a string of decisions have been handed down recently by three battei din (rabbinical courts) which are under the network of the Rabbanut, Israel’s Chief Rabbinate (hereafter: Israeli battei din), which rule that in a situation of an agunah there is a well-trodden mesorah, tradition, that a beit din is empowered to coerce the husband to give a get. In a case where a husband has opted out of the marriage by moving away from his spouse and by refraining from complying with his marital duties such as engaging in conjugal relations and providing material support for his wife and/or family, a situation of “igun” has been created by his refusal to give a get. Invoking Rishonim (early Jewish legal authorities) and Aharonim (later Jewish legal authorities) alike, these battei din contend that under such conditions a beit din is empowered to coerce this husband to give a get.",
"Seemingly, this ruling may address the agunah problem at least for the Jews who reside in Eretz Yisrael. As we know, in 1953, the Knesset, the Israeli parliament in the wake of a rabbinical court’s determination that a husband be compelled to grant his wife a get, passed legislation which directed the district court upon application of the attorney general to imprison the recalcitrant spouse. Clearly, the effectiveness of this solution to deal with the agunah problem is open to question due to the fact that despite the prolonged Israeli incarceration, Yihye Avraham, who refused to free his wife from the chains of “igun,” died in jail after being imprisoned there for decades. Or more recently, Tzviya Gorodetski, whose husband has been in prison for the last 17 years as he continues to refuse to give her a get as mandated by Israeli battei din. Nonetheless, in many instances the threat of or actual incarceration may serve as an incentive for a husband to give a get. The ineffectiveness of the solution of imprisonment to address the agunah problem in every instance is highlighted by two recent battei din decisions which rule that individuals incarcerated due to get recalcitrance may be viewed by Israeli criminal law as criminals and therefore subject to additional sanctions, sanctions which will not run afoul of the strictures of “get me’useh”, a coerced get. In fact, as noted in the dayan’s dissenting opinion in one of these recent rulings, if incarceration was ineffective during a span of seventeen years, being labeled a criminal with its attendant legal consequences such as mandating harsher conditions during his incarceration serves as no guarantee that a get will be forthcoming in the future from the husband.",
"The issue is whether other Israeli battei din will endorse these rulings that igun may serve as the basis for coercing a get? Firstly, as we know, a get must be executed with the consent of both the husband and wife. Should a husband refuse to give a get, a beit din cannot coerce him lest we create a situation of a “get me’useh”, a coerced writ of Jewish divorce. Should the wife remarry under such circumstances and should she sire a child from this relationship the offspring would be a mamzer (a halakhic bastard) due to the fact that the wife is still considered married to her first husband. In the event a get recalcitrant husband will be threatened with incarceration or be imprisoned and decides to give a get in order to avoid imprisonment, in pursuance to certain authorities the execution of get under such conditions would be null and void. Yet there are some decisors who either argue that imprisonment is an indirect form of coercion and therefore it is halakhically permitted or that the conditions of incarceration nowadays are less severe than the ones found in earlier times and as such this measure is not to be viewed as form of coercion.",
"Even if the consensus of other battei din is to align themselves with the posture that imprisonment of a recalcitrant husband does not create a get me’useh, we leave open the question whether the presence of igun as the singular ground for mandating get coercion would be acceptable in the eyes of most Israeli battei din.",
"To fully understand the significance of the aforementioned three Israeli battei din rulings both for the Golah, Diaspora as well as Eretz Yisrael, we need to briefly present some of the basic elements of halakhic divorce law. Whether a husband is obligated to give a get generally speaking hinges upon whether there exists an ilat gerushin, a ground for divorce. The ilot gerushin may be subdivided into two categories. One type of an ilah may relate to the inability of a wife to have conjugal relations with her husband due to the fact that he is afflicted by a contagious and/or dangerous disease or by dint of her revulsion of his body odor which is linked to his occupation. On the other hand, a husband’s inappropriate behavior may serve as a justification for divorce. For example, spousal rape, refusal to cohabitate with his wife, physical and/or emotional divorce of his wife, or refusal to financially support her may serve under certain conditions as a claim for coercing or obligating a husband to give a get.",
"The question arises whether a couple who has separated for either one year or for eighteen months with no prospects for shalom bayit, marital reconciliation, can a beit din coerce or obligate the husband to give a get or is a beit din order to coerce or obligate a get limited to a party demonstrating that there exists an ilat gerushin? Though there are a few earlier authorities who either obligate (le’hayev) or are willing to coerce a get (le’kefyat get) under such circumstances, nevertheless it remains a dispute amongst contemporary rabbis and dayanim whether you can obligate much less coerce a get under such conditions where there is no ilat gerushin. Nonetheless, in the wake of no prospects for marital reconciliation there are Poskim who would sanction a beit din’s right to render a judgment of “mitzvah le-garesh”, a duty to divorce in order to eliminate an igun situation. Rendering such a judgment would allow a beit din to direct the community to initiate harhakot, measures which isolate religiously, socially and economically the get recalcitrant husband from the fellow Jews in his community. On the other hand, in the wake of an extended separation as well as the absence of a husband’s compliance with his marital duties, under such circumstances the aforementioned three Israeli beit din panels [as well as some others] would coerce a husband to give a get.",
"That being said, what are the prospects for an Israeli dayan who serves in the network of battei din under Israel’s Chief Rabbinate to accept the aforementioned three recent rulings which coerce a get in the case of an agunah which would result in the husband’s incarceration should he fail to comply with the beit din’s order? Even if the particular dayan subscribes to the view that “a dead marriage of prolonged separation” serves as a basis for a beit din to obligate a get, will he equally mandate get coercion under such conditions? Given that there are authorities who refuse to coerce under such conditions, one would expect that there is a concern for a get me’useh since there is no unanimity amongst the Poskim to sanction get coercion under these circumstances.In their mind, the presence of halakhic controversy regarding to imposing get coercion when a couple separates for an extended period of time and a husband’s failure to comply with his marital duties preempts any future arbiter or beit din to mandate get coercion. As we have shown elsewhere, generally speaking Israeli battei din have refrained from rendering compulsory order judgments regarding matters dealing with ilot gerushin and would expect the adoption of an identical stance concerning the impropriety of rendering get coercion due to a situation of igun. In sum, despite the recent rulings regarding get coercion in the situation of igun, we leave as an open question whether these decisions will resonate with many of the other dayanim.Nothwithstanding some Poskim as well as a few contemporary Israeli battei din who have issued compulsion orders in the wake of extended marital separation and the attendant lack of prospects for marital reconciliation, a get recalcitrant husband who has been separated from his wife for at least a year and has refused to provide for his wife and/or their children generally speaking does not await the possibility that an Israeli beit din may coerce him to give a get resulting in his imprisonment should he fail to comply with the beit din’s judgment.",
"Nonetheless, this well-trodden mesorah that sanctions get coercion in the case of an agunah may be significant regarding the ability of a beit din to void a marriage, in particular concerning the Jewish communities in the Diaspora. Halakhah has been characterized by many as “torat hayyim,” a teaching of life, and therefore dating back to the times of the Mishnah and Talmud, Halakhah has furnished the grounds for obligating or coercing a husband to give a get to his wife. With the issuance of these divorce judgments, it seems that the beit din’s authority has been quite effective in ensuring get compliance both in Mishnaic and Talmudic times as well as in the Middle Ages. (Absent any historical studies regarding this matter, we are positing this conclusion.) As such, we can understand that there were very few medieval halakhic discussions of voiding a marriage by invalidating the propriety of the wedding ceremony, by invoking the techniques the techniques of “kiddushei ta’ut” (loosely translated: a mistaken marriage) and “umdana demukhah” (loosely translated: a major inference expressed by one person – hereafter: umdana) or by employing a sefek sefeika de’dina in order to void a marriage.",
"However, if we fast forward to the age of Enlightenment and modern times where many civil governments refrained from allowing the Jewish communities to physically coerce Jewish husbands to give a get, we begin to learn from studying the teshuvot, the responsa, that there were increased instances of bittul kiddushin, voiding a marriage. In the wake of the absence of being able to apply coercive measures against a get recalcitrant husband for a few centuries, it is of no surprise to learn that some authorities teach us that under certain conditions the techniques of kiddushei ta’ut (loosely translated: a mistaken marriage) and umdana (a wife’s expectation in the marriage) ought to be applied by rabbinic authorities.",
"Accordingly, the consequence of a judgment to compel the giving of a get means that shotim (flogging) as per certain decisors, social shunning such as imposition of a herem (excommunication) or imprisonment under certain conditions may be utilized to facilitate obedience to the beit din’s directive. In the event that these methods as well as others would be unsuccessful or could not be used legally (and therefore halakhically is proscribed) then these authorities argue that one can investigate the merits of being mevateil the kiddushin, voiding the marriage. Clearly, in their opinion should a beit din arrive at a judgment which obligates a get which means that the husband will be verbally persuaded to give a get or a ruling which deems it is a mitzvah, a duty to give a get or it is recommended to give a get, then a beit din can pursue the possibility of being mevateil the kiddushin. As Rabbi Feinstein and others have pointed out one cannot pursue that avenue unless the beit din has tried to convince the husband to give a get by issuing one of the four types of divorce judgments which has been mentioned. See Mesorat Moshe (attributed to Rabbi Feinstein) 1, 419(5778). In all of our decisions presented in this chapter prior to deliberating whether there was a basis to void a marriage we obligated a get and in certain instances we directed the community to religiously, socially and economically isolate the husband should he fail to give a get to his wife. Namely we invoked harhakot (the isolating measures) of Rabbeinu Tam vis-à-vis the get recalcitrant husband.",
"Should a beit din issue a compulsion order to give a get but the husband still remained steadfast in terms of get recalcitrance or due to legal constraints a beit din was unable to render such a divorce judgment, nonetheless the fact that there were grounds to issue a compulsion order is halakhically significant. The import of coercing a get, as noted by Hagahot Maimoniyot, Ishut 25:1 and Teshuvot Heikhal Yitzhak 1:1 is that the husband’s behavior which serves as the cause for coercion is to be categorized as either “grave” or entails “an injustice to the woman”. In other words, a husband’s failure to disclose this major defect gives credence to the wife’s plea that this marriage ought to be deemed as a mekah ta’ut, a mistaken transaction and therefore a beit din may contend under certain conditions that a get ought to be coerced. Conversely, if a beit din decides that there is no basis to compel a get, the inference to be drawn is that the wife is capable of living with a husband who has a particular flaw which does not rise to the level of a mum gadol, a major defect. As such we understood the importance of ascertaining whether in fact there were grounds to void a marriage based upon kiddushei ta’ut which is predicated upon makeh ta’ut by investigating whether the husband’s behavior would be an ilat gerushin which would be subject to get coercion.",
"To state it differently, the question of whether one may void a marriage, in accordance with these decisors who contend that the presence of a mum gadol justifies the issuance of a compulsion order, entails a threshold question whether the ilat gerushin may be coerced by a beit din or not? To state it differently, if the ilat gerushin is subject to get coercion then one may investigate whether there are grounds to void the marriage due to the inability to compel the husband to give a get. On the other hand if the ila is not subject to get coercion an arbiter is proscribed from deliberating whether the conditions have been obtained in order to void the marriage,As such, the merits of voiding the marriage will be investigated through the prism of the appropriateness of compelling a get or not.",
"In some of the cases which we present in this chapter we are relying upon a me’ut ha-Poskim (a few authorities) who or a minority view that would coerce a get. Such a conclusion undermines the rule that if the majority of authorities coerce a get, one still must factor into consideration the minority opinion who refrains from coercing a get in order to avoid the strictures of a get me’useh. Consequently, in a particular situation where there exists a minority view which prohibits get coercion, the rendering of a compulsion order would not be sanctioned by numerous authorities. On the other hand, should the majority view permit get coercion, in the case of emergency and a igun situation, one may rely upon their opinion and impose upon a husband to give a get.",
"Clearly based upon the foregoing in non-igun situations frequently there would be no grounds to compel the giving of a get.",
"However, upon further reflection, there are two additional approaches which we have adopted which implicitly reject the aforementioned mesorah that the absence of halakhic unanimity regarding an issue preempts the possibility for an arbiter or a beit din to coerce a husband to give a get. Firstly, in a case where there are a few ilot gerushin such as a husband’s refusal to provide support, being “oveir al dat Yehudit,” (transgressing the Jewish religion) and engaging in spousal battery, one is permitted to join all these ilot gerushin (grounds for divorce) together and coerce a get.",
"Furthermore, in contradistinction to Rabbi Moshe Sofer’s opinion and others, even if there are authorities who refuse to coerce a get, one is obligated to comply with the rulings of the contemporary beit din or arbiter should there be a mandate for get coercion. For example whether a particular ilat gerushin such as a husband who engages in spousal rape or battery is subject to get coercion is generally speaking the subject of halakhic debate. Therefore, even if the contemporary arbiter’s posture does not reflect the view of others who reject get coercion under such circumstances, his ruling does not run afoul of the strictures of a get me’useh provided that his position is grounded in an earlier Posek’s view that mandates get coercion in such a situation. Another example where one can rely upon a contemporary ruling is where a husband fails to disclose a mum gadol, a major defect prior to the marriage and his conduct is deemed a case of kiddushei ta’ut which generates a situation of a safek kiddushin (loosely translated: a doubtful marriage on rabbinic grounds) which in pursuance to certain decisors mandates that the beit din issue a compulsion order regarding the giving of the get. To state it differently, even though there are others who disagree and advance the opinion that there is no basis for get coercion for a safek kiddushin such as a case of kiddushei ta’ut, nonetheless since the contemporary arbiter rules in accordance to the opposing view his judgment does not run afoul of the strictures of a get me’useh.",
"In short, a contemporary arbiter’s or beit din’s ruling which will mandate get coercion either concerning an ilat gerushin or in a case of kiddushei ta’ut will suffice in order to avoid creating a get me’useh.In the event there is a basis to apply coercion in a particular case, given that in modern times we cannot implement coercive measures in the Diaspora there may be grounds under certain conditions to void the marriage based upon kiddushei ta’ut and/or umdana.",
"In the wake of the three Israeli rulings (as well as a few others) which we cited at the beginning of our introduction to this chapter should a beit din encounter a case of igun and subscribe to the mesorah that we can coerce a get if the wife is an agunah, we now have another avenue to utilize to void a marriage under certain conditions. In other words, under certain conditions rabbinic authorities are not only voiding a marriage if the ilat gerushin (or a combination of ilot) dictates that coercion ought to be applied against a get recalcitrant husband or due to the fact that a case of kiddushei ta’ut generates a safek kiddushin which mandates get coercion but equally voiding the marriage may transpire should the wife become an agunah where get coercion is an impossibility. In the cases presented in this chapter, all three arguments have been advanced as grounds for issuing compulsion orders against a husband.",
"In sum, in light of the contemporary inability to implement get coercion in Eretz Yisrael and in the Golah, (except for Morocco), our foregoing presentation of various cases where a marriage was voided due to deploying the means of kiddushei ta’ut and/or umdana is either due to the existence of an ilat gerushin claim (or the existence of more than one ilat gerushin in a particular case) which is subject to get coercion, in light of the fact that we are dealing with a safek kiddushin and/or due to the fact that the wife is an agunah who is entitled that a beit din will impose a compulsory order upon the husband to give a get.",
"In contradistinction to investigating the merits of bittul kiddushin by examining the ilat gerushin whether it justifies a compulsion order as aptly noted by Dayan Binyamin Be’eri argues that even if a particular ilat gerushin fails to permit a beit din to impose get coercion, nonetheless should the defect be a mum gadol, a major flaw, there may still be grounds fo voiding the marriage due to kiddushei ta’ut.",
"Moreover, a review of numerous teshuvot will demonstrate upon addressing the merits of voiding the marriage only occasionally a Posek will advance argumentation that the particular ilat gerushin under review dictates get coercion.",
"The effectiveness of the various avenues to void a marriage (i.e. kiddushei ta’ut and umdana) will be shown in the cases examined below and will be demonstrated in one of two ways: Firstly, we will show based upon a scrutiny of the facts the ability of a beit din to apply a particular technique to void the marriage. Prior to arriving at this conclusion, we will demonstrate that there is a basis to impose get coercion for the particular ilat gerushin under consideration and/or advance argumentation that the particular ila serves as a ground for being mevateil kiddushin despite the fact that it is not subject to get coercion.",
"Secondly, in advancing a mesorah which instructs us that even though there are Poskim who reject the implementation of one or all of these techniques to be mevateil kiddushin, void the marriage; yet depending upon the facts of the case we may still be able to void the marriage by factoring the opposition’s stance into arriving at a psak din, a decision to voiding the marriage.",
"How does a beit din or a rabbinic authority void a marriage based upon recognition of those authorities who reject voiding it? With the establishment of a halakhic marriage, there emerges the hazakah, the presumption of an eishet ish, the status of a married woman which renders both spouses subject to various issurim, prohibitions including sexual ties to a third party. As noted by some Poskim, if there is sefek sefeika, a double doubt regarding what the Halakhah ought to be, one can permit certain leniencies concerning certain marital and divorce matters even though there is a hazakah of an eishet ish. For example, given the circumstances of a particular case there may be a halakhic dispute whether one can void a marriage based upon kiddushei ta’ut and umdana. As such we have sefek sefeika de’dina (a double doubt what the Halakhah ought to be). Firstly there is a halakhic safek whether one can employ kiddushei ta’ut as a vehicle to void the marriage. Secondly, there is a halakhic safek whether one can deploy umdana as a technique to void a marriage.In sum; there are two doubts (sefek sefeika) whether one can halakhically utilize these two avenues to void a marriage. In other words the two halakhic – legal doubts are linked to the same issue, namely to voiding a marriage.",
"The emerging question is whether the sefek sefeika de’dina will be grounds to void the marriage and thus transforms the wife from a hezkat eishet ish (presumptively a married woman) to a hezkat penuyah (presumptively a single woman) where a get will not be required on rabbinic grounds ? Nothwithstanding some authorities who contend that she continues to retain her hezkat eishit either due to the fact that sefek sefeika de’dina is ineffective to nullify the hazakah or they reject in principle that there is a sefek concerning voiding a marriage, implicit in the above approach is their alignment with numerous Poskim who argue that in fact a sefek sefeika de’dina reinstates the original hazakah of being a single woman.",
"Consequently, in regard to bittul kiddushin, voiding a marriage we are invoking the mesorah, the tradition that a sefek sefeika de’dina regarding what the Halakhah ought to be is effective to trump a hezkat eishet ish. For example in case 8c there is a controversy whether kiddushei ta’ut is a valid technique to void a marriage. As such, there emerges a safek, a doubt whether voiding a marriage in such a fashion is halakhically proper. Moreover, there is a second safek in that case whether there are grounds to void a marriage based upon the deployment of an umdana. Given that in an igun situation, we are dealing with the inability of authorities to procure get compliance, therefore under such circumstances we must characterize the matter as a bedi’avad, a post-facto situation and we must seek a halakhic solution. In light of the aforementioned mesorah, when there exists a sefek sefeika de’dina whether certain techniques may be implemented to void a marriage, the sefek sefeika is effective against the hezkat eishet ish and the wife has a hezekat penuyah. Therefore under certain conditions the marriage may be voided such as we ruled in case 8c.",
"In short, as we will read in this chapter there are four techniques which can be implemented under certain conditions (e.g. an igun situation) and in light of certain facts may serve to be mevateil kiddushin, void a marriage: the presence of a sefek sefeika de’dina, discovering a pegam, a halakhic impropriety in the seder kidddushin ve’nissuin, the marriage ceremony, a husband who intentionally or unintentionally engages in misrepresentation and/or fails to disclose prior to marriage a major defect (“kiddushei ta’ut”), and a major expectation that the wife desired at the time of the marriage (“umdana demukhah”) which failed to materialize during the course of the marriage.",
"Finally, whether a decision which voids a marriage requires an endorsement of “a second opinion(s)” is a subject of controversy. As we analyzed elsewhere, though there are a few renown and well respected Aharonim (later decisors) such as Maharam of Lublin, Rabbi Hayyim Ozer Grodzinsky, Rabbi Avraham K. Shapiro, and Rabbi Michal Epstein who mandate such a requirement inorder to avoid in the words of Dayan Avraham Sherman the transgression of “the issur of eishit eish (the prohibition of a married woman to marry another Jewish man – AYW) and to avoid the proliferation of bastards”, the majority of Poskim view it as a nohag, a practice which centuries earlier addressed the classical agunah whose husband’s whereabouts are unknown and subsequently in contemporary times was adopted by some authorities in dealing with marriage and divorce in general and voiding a marriage in particular.Finally, should a Posek issue a ruling entailing the voiding a marriage which is contingent upon receiving outside rabbinic approval, clearly as authorities have noted that another Posek may rely upon this ruling even if the decision does not receive approval."
],
"a) The validity of the marriage of a Jewish woman to a mumar, an apostate": [
"The validity of the marriage of a Jewish woman to a mumar, an apostate.",
"The facts of the case",
"At the hearing, Judy began her presentation by stating that during the one and a half years of knowing Michael, he was a successful day trader. He was happy and fun to be with and quite bright. Judy as well as her children of her first marriage loved to be with him. Shortly before she married him, Judy entered into Michael’s home and found him acting strangely. He told her that he had taken a sleeping pill called Ambien which can produce some bizarre side effects. He promised never to take it anymore. During the period that she knew him, he never told her about any medication that he was taking. However, shortly before the wedding, Michael did mention that he had suffered from depression years ago but presently neither was depressed nor taking medication for it. After Michael’s disclosure, she felt that she would be able to handle the situation and proceeded to marry him.",
"A few months into the marriage, Michael began to exhibit signs of depression. He would lie on the recliner all day and do nothing, frequently sleeping during the daytime. At that time, he lost significant sums of money in the market which led him to be further depressed and dysfunctional. He was dirty and would wear dirty clothes during the day. Upon Judy’s return from work, she found the house a wreck. Suddenly, he would cry and exhibit unwarranted outbursts of anger. There were various types of pills including anti-depressants which were prescribed for him in 2012 and 2013. Judy did not know whether his erratic behavior was caused by taking the medications or by refusing to take the medications. Judy had never observed such behavior during their period of engagement.",
"In contrast to Judy’s presentation, Michael responded to her claim statement by informing us in writing that he admitted to being predisposed to depression and had adult attention deficit disorder and was on disability due to his depression. In Michael’s words, “My depression and lack of career ambition were part of our ongoing conversation starting not long after we began being in each other’s lives well into our marriage.” In fact, Michael contends that Judy escorted him to a doctor where the physician informed her that he was suffering from depression. Moreover, whereas, at the hearing Judy told us that they were dating for a one and half years prior to their marriage, Michael wrote in an e-mail during the summer of 2015 (me’siach lefe tumo – innocently) that they were in a relationship for six and half years and recently wrote they were “in a relationship for nearly six years,” and in certain periods when her children were with her first husband who said in his words “we practically lived with each other.” Moreover, he wrote that they were together for three and a half years and Michael alleges that Judy insists it was 2.5 years. Upon reading Michael’s reply to her claim statement, Judy informed us that she knew Michael for four and a half years and argued that she had no idea (as well as no experience) of the ramifications of someone who suffers from manic depression and therefore chose to marry him.",
"Implicitly concurring with Michael’s representation, a health care professional who provided therapy to Judy told us that she was “emotionally compromised” and therefore was unable to discern that he was acting in an abnormal fashion.",
"Finally, Judy alleges that prior to the wedding Michael transgressed the Shabbat, did not observe the laws of kashruth and had fights with him when he brought nonkosher food into the house. Her allegation concerning his Shabbat transgression was corroborated by six individuals, his consumption of nonkosher food was corroborated by two individuals, and two of Judy’s friends informed us that he was respectful of Judy’s right to keep a kosher home, though one of the two women admitted to us that the respect may have disappeared with their deteriorating marriage. One individual who knows Michael for over two decades witnessed on innumerable occasions Michael being “mehalail Shabbat” by driving his car, digging and planting in his front lawn, and occasionally mowing his grass on Shabbat. Two neighbors who knew him for over a decade have seen Michael leaving his house in a car as well as mowing his lawn on Shabbat. Another individual told us that after the family Shabbat lunch meal was finished; Michael would proceed to engage in planting in his backyard. Another individual told us that sometimes he would sit at the Shabbat lunch table and sometimes would get up and go to work at his computer. A third individual as well as one of the two individuals mentioned above observed him many times coming out of his car with bags from McDonald’s which led them to believe that he doesn’t keep kosher.",
"Contrary to the above representation, Michael insists that out of respect for his wife, he never brought non-kosher food into their home. Such a representation implicitly tells us that in fact he consumed non-kosher food. Michael resided in the midst of an Orthodox Jewish community for 25 years and on his own block, over 75% of the block was composed of Orthodox Jewish families, and thus more than ten Orthodox adult Jewish males who reside in the community know of his violation of Shabbat. For decades, every Shabbat the Orthodox Jews who lived in the neighborhood, including some who were next door neighbors, were privy to his public conduct. In fact, one of his neighbors claims that Michael intentionally waited for him to pass his house prior to engaging in his non-Shabbat activities. Two neighbors told us that a few individuals attempted to influence Michael “to change his ways” but it was to no avail.",
"His non-Orthodox Jewish lifestyle dates back to his family upbringing. His parents were in principle against the practice of any religion and only civilly married. He never received any Jewish education including Talmud Torah classes and never had a bar mitzvah. All his siblings and many of his cousins intermarried. Whether Michael wanted to cremate his father upon his demise or in fact had bought a plot in a Jewish cemetery for his father years before meeting Judy is subject to a difference of opinion between the couple. However, Judy additionally mentioned that her mother-in-law was cremated by Michael and this representation went unchallenged by Michael. Michael was an opponent of any organized religion and in his wife’s words, “on most days he did not believe in God.” Even on Rosh Hashanah and Yom Kippur he did not attend synagogue services. As one individual told us, in the few times that he attended a synagogue service, Michael came in wearing shorts. When his neighbor who was a Chabad rabbi persuaded him to a don a pair of tefillin, Judy informed us that he allegedly thought the incident was humorous. One Orthodox Jew, one Orthodox rabbi and one Orthodox Jewish woman told us that Michael is very bright and an intellectual and read various books in philosophy dealing with religion and philosophically became an atheist or “almost an atheist” who engaged in philosophical discussions for the sake of advancing his position rather than being open to hear contradictory views to his avowed position for the sake of changing his position. In short, their presentation corroborates Judy’s representation. Moreover, in his reply to Judy’s claim statement, Michael did not challenge Judy’s presentation of him as an individual who rejects religion! Though Michael seemingly was prepared to have their matters be resolved in a local beit din rather than this beit din which was located hundreds of miles away from Illinois, however at the end of the day, he never pursued their matters in a beit din. Moreover, Judy summoned him regarding his claims against her to a local beit din and he refused to appear. In our estimation, his ideological opposition against organized religion in general and resolving issues in a religious forum such as a beit din in particular and/or his discomfort to appear in an Orthodox Jewish forum given his lifestyle may serve as the reason (or reasons) for his unwillingness to proceed to a beit din.",
"If one reads closely Michael’s response to Judy’s written claim statement one can discern that his lack of religiosity in general and its ideological underpinnings in particular are not in dispute. As an attorney, his reply to Judy’s claim statement was nuanced. He mentions that he respected the religious practices of others who entered his home; a representation confirmed by two women who were guests at his home, but he did not challenge Judy’s representation regarding his individual lack of observance. Michael tries to deflect Judy’s representation about him by stating that some of her representations were “half-truths” which may be correct and that she was not observant at all times, but the basic representation advanced by Judy which was corroborated by three individuals is that he was an atheist or almost an atheist is not challenged by Michael. In fact, he writes that publicly “my lifestyle was no secret” and “Judy did not expect me to change lifelong habits.” In fact, we asked three Torah observant men and one Torah observant woman whether one could categorize Michael as “a tinok shenishbah bein hagoyim” (loosely translated: a baby who was raised by non-Jews) due to his lack of exposure to Jewish education and religious upbringing and his exposure to the prevailing values of society, they unanimously and emphatically said “absolutely not.”",
"We have issued a psak din which obligates Michael to give a get to Judy. However, he continues to refuse to give a get alleging that the get will be only forthcoming once Judy pays some outstanding monetary debts to him.",
"Consequently, given his refusal to give a get we are now addressing whether there is grounds to void the marriage.",
"Discussion",
"1. Kiddushei ta’ut – An error in the marriage",
"The initial question which emerges from Judy’s presentation and Michael’s reply to the claim statement is there grounds for Judy to argue that prior to the marriage she didn’t realize the severity of Michael’s depression and therefore having discovered only after their marriage, she has the right to state: “I never would have married him, had I known the extent of the severity of his psychological disorder”?",
"Prior to invoking the technique of “kiddushei ta’ut” to void a marriage and claim there was an error in the creation of the marriage, three preconditions must have been obtained:",
"(1) The husband’s defect must be a major one (“a mum gadol”) such as sexual impotency, refusing to have children, mental dysfunction, homosexuality and/or engaging in a crime. All of the aforementioned examples have been characterized by one or numerous authorities as a mum gadol. Clearly, as Rabbi Hayyim Berlin and Rabbi Shalom Messas note, one must be concerned with “the slippery slope,” lest a decisor allow an insignificant flaw such as a husband’s periodic outbursts of anger, being a spendthrift or stinginess as grounds to void a marriage.",
"The issue is whether having depression is to be labeled “a mum gadol.” Michael was prescribed medications (which sometimes were allegedly taken and sometimes not) which were for patients who have a major depressive disorder and anxiety disorder. Based upon the anti-depressant medication which was in the home as well as the symptoms described, three health care professionals concluded that he had a major psychological disorder.",
"(2) The wife must be unaware of the defect prior to the marriage and must discover it only after the marriage.",
"Upon reviewing Judy’s presentation, one finds discrepancies between what was told to us at hearing and what Michael wrote as a response to her claim statement and her reply to his representation. For example, during the hearing (as well as in a telephone conversation prior to the hearing) she represented to us that knowledge of his disorder was only discovered shortly prior to the marriage and at that time he was healthy. However, based upon the written exchange between Michael and her, her representation now is that she had no idea (as well as no experience) of the ramifications of someone who suffers from manic depression and therefore chose to marry him. In other words, she knew for a long time about his disorder but did not observe the severe symptoms of having depression.",
"Implicit in this representation is that during the four and half years or six years she knew him she did not observe him suffering from manic depression. Usually, we are dealing with a situation where a husband fails to disclose intentionally or unintentionally that he has a psychological disorder. And therefore, assuming other conditions are obtained, one can void the marriage based upon kiddushei ta’ut, an error in the marriage.",
"However, in our case we are dealing with an awareness of the mum gadol. Subsequently, a few years into the marriage, his psychological condition allegedly deteriorated and she exclaimed, “Had I known that his condition would degenerate, I never would have married him.” Whereas prior to the marriage she felt that she would be able to handle the situation, the depth and severity of the disorder now preempts that possibility.",
"Rabbi Yosef Karo rules:",
"A man who is mentally dysfunctional on a daily basis and his wife says, “my father in the time of his stress married me off and I thought I would be able to deal with the matter. Now, I realize that he is mentally dysfunctional and I fear that in his rage he will kill me.” [In such a case] we don’t coerce him to give a get.",
"Despite the fact that the wife’s situation is life-threatening, Rabbi Karo does not sanction get coercion! Explaining the rationale for this ruling, Gaon of Vilna states:",
"Since she knew, we do not say that “she thought she could handle the situation. . . .”",
"To state it differently, a wife cannot initially claim that she thought she would be capable of dealing with her husband’s condition and now realizes that she can’t deal with it. Therefore, we do not coerce a get. In fact, Rabbi Yehuda Litwin contends that in a situation which entails a mental disorder which changes “from time to time” we do assume that a wife accepts the situation.",
"Nonetheless, many Poskim disagree with the aforementioned views.",
"Even though she knew that her prospective husband had skin boils prior to the marriage and she accepted this defect in the form of a tenai (a condition to the marriage), nonetheless the students of Rabbeinu Yonah note:",
"Except for a husband who has skin boils (mukeh shehin) that she can say “now I am unable to deal with it since daily the sickness becomes more severe”. . . .",
"In other words, her change of heart regarding her ability to live with a husband who was afflicted with boils would trump her tenai and get coercion is permissible.",
"The question is what is the reason why the persistence and the sudden severity of a husband’s skin boils which emerges after the onset of the marriage ought to undermine the tenai? Addressing a young woman who was dysfunctional the majority of the time and exhibited moments of sanity only portions of the time prior to the marriage and subsequently became a shotah (halakhically mentally dysfunctional), R. Aryeh Leibush Horowitz in Teshuvot Harei Besamim, Mahadura Tinyana 72 observes:",
"Accepting a mum only is applicable if the condition remains the same. However, the degree of mental dysfunction changes from one period to the next; therefore he accepted the situation in her condition that she was in prior to the marriage; and the insanities that emerged afterwards he could not tolerate and therefore one cannot say that he accepted it.",
"On the basis of this reasoning, R. Horowitz lifted the herem of Rabbeinu Gershom, which prohibits a husband to give a get against his wife’s wishes, and permitted him to remarry.",
"The notion that the depth and severity of a medical condition may change for the worse is also noted regarding a wife who had epilepsy by Rabbi Moshe Trani and regarding a wife who exhibited a neurological and cerebral disease by Rabbi Meir Arik. As such, should there be a behavioral change, a prior statement that he accepts the situation may be discounted. Consequently, these authorities allowed the husband to remarry without the wife receiving her get.",
"All the aforesaid rulings deal with grave defects concerning a wife; it is open to debate whether we could apply the same conclusion regarding the flaws of a husband. In recent years, two Israeli rabbinical courts apply this conclusion dealing with a wife’s defects to a husband’s flaws and state that such a conclusion is acceptable among the Poskim.",
"Based upon the foregoing, seemingly there ought to be grounds to void the marriage even though prior to the marriage Judy neither fully comprehended nor experienced the severe symptoms of Michael’s disorder. However, based upon the cumulative evidence submitted to this panel which indicates discrepancies in Judy’s representation of the train of events prior to her marriage as well as the panel’s assessment that it is highly unlikely that for four and half years or six years prior to the marriage that Judy was unaware of Michael’s manic depression. In other words, prior to the marriage the symptoms of his disorder were “full-blown” in her presence. But as the health care professional testified to us she was “emotionally compromised” and therefore she was unable to discern that he was acting in an abnormal fashion.",
"As such, there would be no basis for voiding the marriage utilizing the tool of kiddushei ta’ut.",
"2. The validity of a kiddushin performed by a mumar",
"Based upon the foregoing, prior to the wedding Michael was in principle against practicing any religion, nonobservant in terms of Halakhah, transgressed the Shabbat and did not keep kosher. The question is whether his behavior impacted upon the validity of the kiddushin, the act of halakhic engagement and ultimately the validity of his marriage to Judy? In other words, is an individual who violates the Shabbat publicly to be labeled a “mumar” and if the answer is in the affirmative we must then address whether kiddushin with such a person is valid.",
"The threshold question is whether the definition of a mumar is limited to an apostate, somebody who leaves Judaism and engages in hamarat dat, converts to another religion. Clearly, the Talmud distinguishes between a mumar who in practice disavows the entire Torah (“mumar le’khol ha’torah kulah”) and in effect disavows being a member of the covenant faith community or rebels against one sin (“mumar le’aveirah ahat”). One example of a “mumar le’khol ha’torah kulah” is a Jew who publicly desecrates the Shabbat. Another distinction is established between a mumar who engages in sin due to principled opposition (“le-hakh’is”) or out of convenience (“le’taivon”) and therefore commits the sin. Unlike the apostate Jew, the common denominator of all these types of mumarim is that they have not converted to another religion. However,on the other hand, these individuals have ideological opposition to perform a particular divine commandment or the entire spectrum of mitzvot.",
"The question is whether a Jew who publicly violates the Shabbat is viewed as a mumar. In order to be deemed a public violator of Shabbat notwithstanding that there are some authorities who mandate that ten Orthodox Jewish males have to attest that they observed him publicly transgressing the Shabbat, many Poskim only require that ten Orthodox Jewish males were aware that he violates the Shabbat. Moreover, given that Michael worked the land on Shabbat, even the shitat yahid, the minority opinion who argues that only such an individual is deemed a public transgressor of Shabbat would agree in our case that he is deemed a violator.",
"Given that more than ten Orthodox Jewish males would attest to the fact that Michael publicly violated the Shabbat,therefore he ought to be classified as a public transgressor of the Shabbat (and as such a mumar), the issue is whether being mekadesh, consecrating and designating a woman as his wife was valid? In accordance to the majority of Poskim, his kiddushin is valid me’doraita, biblically. However there are a few authorities, who invalidate the kiddushin, view it valid me’derabbanan, on a rabbinic level or argue that such kiddushin is “a safek kiddushin,” a kiddushin which is halakhically in doubt.",
"Finally, in reply to the question whether due to his lack of religious upbringing and being deprived of a Jewish education and conforming to the norms and values of the society in which he lives Michael is to be labeled “a tinok shenishbah bein hagoyim”? As we mentioned earlier in our rendition of the facts of this case, three Torah observant men and one Torah observant woman unanimously and emphatically said “absolutely not.” As noted by Michael’s own admission he was in principle ideologically opposed to practicing any religion. He was an atheist.",
"Addressing the case of a husband whose maternal grandparents were mumarim and were married in a Christian church and he himself was “a tinok shenishbah bein hagoyim” who while serving in the army was intentionally transgressing various sins in a loathsome and repugnant fashion including failing to observe the Shabbat, Rabbi Yitzhak Weiss of the twentieth century rules:",
"There are four views regarding a mumar who was mekadesh: One, that the kiddushin is recognized biblically. Second, that the kiddushin is invalid. Third, it is a doubtful kiddushin. Fourth, it is kiddushin which is valid on a rabbinic level. And delve into Maharsham . . . who investigated if one should join those who contend that the kiddushin is valid only rabbinically. And he wrote that since the majority of Poskim rule that such kiddushin is to be recognized biblically, one cannot rule leniently for only this reason. But he joined this doubt to a second doubt that is more frequent and results in leniency. . . . Where one doubt is more frequent and results in leniency, we join a second doubt that more frequently results in stringency. . . .",
"In short, one can invoke a sefek sefeika (a double doubt) in the context of the presence of apostasy in the husband’s family and thereby void the kiddushin of the mumar. To state it differently, given that Rabbi Weiss aligns himself with the position that in contemporary times a Jew who intentionally is a transgressor and is repulsed by the performance of mitzvot including publically transgressing the Shabbat is to be subsumed in the category of “a tinok shenishbah bein hagoyim” consequently the husband is not to be identified as a mumar. Such a person can only be a mumar if apostacy to another religion existed in his family.",
"Seemingly, given the absence of an actual conversion to another religion in Michael’s family preempts the possibility of deploying the sefek sefeika. However, upon further thought, it is a distinct possibility that Rabbi Weiss ought to agree to the employment of the sefek sefeika under our circumstances where the husband was in principle opposed to practicing any religion. He is a “mumar le’khol ha’Torah kulah”, an apostate to the entire Torah generally and every religion in particular. Moreover, Michael’s parents were equally against all religions and scoffed at those adherents who observed them. In fact, they were civilly married due to their ideological opposition to adopting any religious life style much less the norms of Judaism. Such an upbringing as well as Michael’s personal lifestyle and ideological perspective regarding religion may be equivalent in the eyes of Rabbi Weiss as a Jewish couple who have married in a Christian church. As such, in accordance to Rabbi Weiss there ought to be grounds to void the marriage based upon the invoking of a sefek sefeika.",
"On the other hand, an earlier position authored by Rabbi Schwadron of nineteenth century Galicia leads to the same results.",
"Addressing the validity of kiddushin of a mumar who publicly transgresses the Shabbat, Rabbi Schwadron opines:",
"Concerning a mumar who was mekadesh a woman there are a few authorities who claim the kiddushin is valid rabbinically even though the majority of Poskim are stringent, nevertheless there is “a double doubt” to be lenient . . . When one doubt is more frequent to result in leniency we “join it” to a second doubt though it is more frequent to result in stringency . . . and the presumption of being a married woman is voided, see Maharit, vol. 1 section 138 that one rules leniently in sefek sefeika (double doubt) of kiddushin. . . . However it seems it is unclear whether in fact he was a Shabbat transgressor at the time of the marriage and if he became a mumar afterwards, the two doubts did not emerge simultaneously and therefore we cannot be lenient due to a double doubt.",
"Lest one argue that in contemporary times Maharsham considers a public transgressor of Shabbat as “a tinok shenishbah bein hagoyim” and as such he would not be deemed a mumar, in another ruling, relying upon the view of Rabbi Ya’akov Ettlinger he states that if it is clear that he knows the halakhot of Shabbat and yet has the audacity to transgress them in front of ten Torah observant Jewish males, in the words of the Maharsham he is a mumar gamur and one is prohibited from drinking his wine. Based upon the cumulative evidence submitted to this panel, the defendant’s behavior labels him as a mumar gamur, an absolute apostate.",
"In other words, in accordance with his posture, one may invoke a sefek sefeika as a vehicle to void the marriage when dealing with a mumar, a public transgressor of a Shabbat.",
"Therefore, in our case where it is clear that prior to the marriage Michael was a mumar, namely a public transgressor of Shabbat and an atheist therefore based upon the aforesaid sefek sefeika we may invalidate the act of kiddushin.",
"To state it differently, given that the majority of renowned Poskim validate the kiddushin of a mumar, concludes Rabbi Moshe Feinstein that one cannot invoke the technique of sefek sefeika in order to arrive at a lenient position and void the marriage. As such, Rabbi Feinstein in our case would have been unwilling to void the marriage. However, we are relying upon the positions of Maharsham and Minhat Yitzhak who are prepared to deploy the tool of sefek sefeika in order to void the marriage of a mumar.",
"Implicit in the opinions of Rabbis Schwadron and Weiss is that the definition of a mumar is not limited to a Jew who converted to another religion as has been propounded by other authorities; rather a Jew who is “a tinok shenishbah bein hagoyim” who intentionally violates prohibitions including transgressing the Shabbat publicly and mocks mitzvot may be equally identified as a mumar. On the basis of these authorities, we assume that Michael is to be viewed as a mumar. As such, his kiddushin is invalid.",
"Based upon the foregoing; Judy is free to remarry any Jewish man other than a Kohen, without receiving a get."
],
"b) A husband who is infected with HIV": [
"A husband who is infected with HIV",
"During the Fall of 2008, the couple married in accordance with Halakhah. Four years later, Avraham informed Esther that they would be getting divorced and at that time he left the marital home. During the last three and a half years, Esther attempted to receive her get from Avraham but until now he has refused to give his wife her get unless he would receive $100,000. There were settlement negotiations but at the end the negotiations fell apart. To this date, despite the fact that we obligated a get, a get was not forthcoming.",
"It was clear to Esther that Avraham would continue to refuse giving a get but requested from the panel whether there would be grounds to void the marriage based upon the fact that she contracted from her spouse a sexually transmitted disease called human papilloma virus (hereafter: HPV). Women usually discover that they have HPV when they have a Pap smear. Esther visited her doctor for her annual physical exam soon after she married and her doctor informed her that her Pap smear results were irregular. After testing, her physician told her that she had HPV. There are approximately 100 types of HPV; some cause cervical cancer, some generate genital warts and others are subclinical and there are no recognizable symptoms. After further testing, Esther found that the HPV that was transmitted by Avraham was harmless and that it would disappear in a few years. Given the fact that Esther alleges she never had intercourse with any other man except Avraham, she knew that the HPV could only have been sexually transmitted by Avraham. Upon inquiry, Avraham told her that he had intimate relations with another woman prior to marriage. Despite the fact that Esther’s doctor counseled her to refrain from having relations with Avraham, she continued to engage in conjugal relations. In effect, though she was infecting herself again and again every time she cohabitated with him, Esther, who was in love with Avraham, allegedly continued to engage in conjugal relations in order to keep her husband happy. Had she known prior to the marriage that he had HPV she never would have married him. In other words, Esther is contending that her husband’s failure to disclose, intentionally or unintentionally, that he had HPV is grounds to void her marriage and therefore she is free to remarry without receiving a get from Avraham.",
"Discussion",
"Before determining whether there is a basis to argue that there is “a mum gadol,” a major flaw which Avraham failed to disclose and may serve as a reason to void the marriage, the threshold question is whether there are grounds to coerce a get due to a sexually transmitted disease by the husband. Specifically, we will address this issue through the prism of a husband who contracted AIDS and transmitted HIV to his spouse.",
"1. Grounds for get coercion due to a sexually transmitted disease by the husband",
"The grounds for compelling the issuance of a get due to matters such as physical defects are mentioned in the Talmud. After the close of the Talmud, the question arises whether a beit din may compel a husband to give a get to his wife in circumstances not specified in the Talmud. May a beit din compel a get if a husband has infected his wife with a sexually transmitted disease, a disease which is not mentioned in the Talmud? Is the list a closed list or can we expand the list based upon medameh milta le-milta, utilizing analogical reasoning? This question is subject to much debate among the Poskim.",
"However, even if an authority claims that the list in the Talmud is a closed list, one should refrain from assuming that there will be no situation (or situations) where the Posek will refuse to coerce a get in a new case. For example, on one hand, addressing the situation of a mentally dysfunctional husband, Rabbi Asher ben Yehiel, known by the acronym: Rosh, refuses to sanction get coercion due to the fact that this disorder is not cited in the Talmud. Yet, on the other hand, when dealing with an epileptic wife Rosh permits get coercion. This seeming contradiction between the two rulings is addressed by Rabbi Moshe Yisrael who notes who notes:",
". . . when Rosh states that one should not add to the cases mentioned in ha-Madir (referring to a perek in Ketuvot – AYW) that does not mean that there are no situations where there are grounds for coercion. But rather what is meant, that one should not add unless a case is like those mentioned . . .",
"In other words, if we can engage in medameh milta le-milta (analogical reasoning) then we may add other situations where get coercion is permissible. Consequently, though a particular dangerous disease is absent from the list, nevertheless since there is mention in the Talmud that a husband who has skin boils is a basis for get coercion similarly one can invoke another dangerous malady. And Rosh’s view is not “a lone ranger.” There are numerous Poskim who will coerce a get in situations of a husband who is infected by a dangerous disease. Some authorities will require that in fact the disease is a danger to the wife should she be exposed to it and some will mandate an additional requirement that the wife cannot tolerate living with a husband who has succumbed to such a disease. Consequently, as such it is unsurprising that today, contemporary authorities would coerce a get if a husband had AIDS and infected his wife with HIV.",
"However, as noted by some authorities, should the disease fail to pose a danger, there would be no basis to obligate the husband to give a get.",
"2. Kiddushei Ta’ut (lit. A mistaken betrothal, loosely translated as a mistaken marriage)",
"Given that today, at least in the Golah, the Diaspora, we legally and therefore halakhically aren’t empowered to coerce a get, some Poskim such as Rabbi Y. Elhanan Spektor, Eliyahu Klatzkin, Tzvi P. Frank and Moshe Feinstein argue that one must seek whether the conditions are ripe that enable a Posek to void a marriage based upon kiddushei ta’ut in a situation where a get will not be given.",
"Prior to a beit din invoking the tool of kiddushei ta’ut to void a marriage retroactively and claim there was an error in the creation of the marriage, three preconditions must have been obtained:",
"(1) The husband’s defect must be a major one (a mum gadol) such as sexual impotency, refusing to have children, insanity, homosexuality, apostasy, a marital expectation communicated by the prospective husband prior to the marriage which turns out to be a misrepresentation, or engaging in criminal behavior such as business fraud, a flaw which must have been preexisting prior to the onset of the marriage. All of the aforementioned examples of a husband’s flaws have been characterized by one or more Poskim as a mum gadol. Whether a particular defect serves as a major defect and therefore grounds for voiding a marriage is subject to the discretion of the beit din.",
"The emerging issue from ths case is whether transmitting sexual disease to a wife which is infectious and therefore entails danger to the spouse, is that disease to be labeled “a mum gadol”? Addressing the situation of a husband infected with AIDS, though initially Rabbi Menashe Klein writes that given that the STD emerged after the marriage and there was no corroborating evidence that in fact the disease existed prior to the marriage, one might infer that if in fact supporting evidence would have been produced, assuming other conditions would have been obtained, R. Klein would conclude that there are grounds to engage in bittul kiddushin, voiding the marriage. However, it is clear from his subsequent argumentation that in fact he is in principle opposed to invoking “kiddushei ta’ut” as a vehicle to void any marriage.",
"However, Dayan Shalom Messas and Rabbi Avraham Shulsinger rule that having been infected with AIDS, the HIV is a mum gadol. Seemingly, one may argue that there is the Talmudic statement “one who is performing a mitzvah will never experience anything bad.” As such, in our case Esther should not be concerned about becoming infected with HPV during cohabitation and therefore one cannot classify this STD as “a mum gadol.”",
"The implicit assumption here is that the wife is performing a mitzvah by engaging in intercourse. Clearly, a wife is exempt from the biblical mitzvah of p’ru ur’vu, “increase and multiply”, however according to some Poskim it is incumbent upon her to fulfill two rabbinic duties, namely “ la-shevet”, “populating the world” and “la-erev,” “in the evening do not withhold your hand from planting”. Without addressing the difference between these two mitzvot, suffice it to say that there is an obligation incumbent upon the wife to promote procreation beyond the statutory requirement of a son and daughter which is mandated by the mitzvah of p’ru ur’vu. In fact, some Poskim reproved families who had only two children. Others claim that she performs a mitzvah due to the fact that she assists him in fulfilling the duty of p’ru ur’vu.",
"Notwithstanding that Rabbi Shulsinger raises doubts whether fulfilling the mitzvah of “la-shevet” and “la-erev” would rise to the level of “one who is performing a mitzvah will never experience anything bad,” nonetheless there are other Poskim who would reject the applicability of this statement. For these authorities, it is applicable only to a disease which has been labeled as “seguli” such as “a ru’ah ra’ah,” an evil spirit or “minhag shedim,” the practice of demons. On the other hand, diseases which are “derekh ha-teva,” which transpire naturally, may potentially affect a person even if he/she is engaged in the performance of a mitzvah. And in cases where harm is a frequent occurrence, one cannot invoke “the agents who perform a mitzvah are not harmed.”",
"Notwithstanding some authorities who argue that “one who is performing a mitzvah will never experience anything bad” is applicable to diseases linked to the natural order, some Poskim disagree. In short, HIV is to be viewed as “a mum gadol” because despite the fact that a wife may be performing a mitzvah by engaging in intimate relations, such halakhic behavior will not protect her from contracting STD.",
"Now let us address our situation. Clearly, based upon the battery of testing the type of HPV which infected Esther was harmless and therefore cannot be classified as “a mum gadol.” Yet, since a woman may contract multiple types of HPV from the same man, it is in the realm of possibility that Avraham may have been infected equally with HPV6, HPV16 or HPV18, STDs which have been known to significantly increase the risk of cervical cancer. Despite her physician’s advice to refrain from having sexual relations with him, she continued to be intimate with him. Given that there exists the possibility that sometime in the future he may transmit one of these high-risk HPV’s to Esther resulting in the potential to cause cervical cancer to Esther, having HPV16 or HPV18 falls into the category of “a safek sakanah,” a possible danger to life, and we would view it as a potential mum gadol.",
"A source that in a situation of “safek sakanah,” one is obligated to coerce a get may be found in the words of Rabbi Shmuel Vital who addresses the case of a wife who was afflicted with leprosy.",
"Even though we find daily occurrences that men who are lepers sleep with wives who are healthy and are not infected by these males, and some men who are healthy who sleep with women who are lepers and do not become infected by these women. One should know that temperaments vary – there is a type which infects and there is another type which does not infect . . . And the same applies to the disease of leprosy and the like. One person may be infected and another person isn’t infected. And possibly this man may be one of the men who becomes infected, and we are more stringent with danger, and a man does not live in the same basket with a snake.",
"And similarly, we should arrive at the same conclusion in our case. There are different types of HPV. There are some which are harmless and others which are harmful. And possibly in the future Avraham will be transmitting an HPV which is dangerous. Consequently, just as get coercion should be applied regarding the wife who is afflicted with leprosy, similarly in our situation.",
"Rabbi Elhanan Spektor stresses the identical point and rules that if there exists a doubt whether a particular malady is to be classified in the category of an infectious and dangerous disease, then a get ought to be coerced.",
"Therefore, there we may view this future, possibly virulent HPV as a situation of “safek sakanah” and therefore it is a major flaw. Given that get coercion is not an option; the voiding of a marriage may be possibility.",
"(2) The wife must be unaware of the mum prior to the inception of the marriage and only discovered it after the marriage.",
"Based upon Esther’s statement, we find that she only became aware of the STD after the onset of the marriage.",
"(3) Finally, upon a wife’s awareness of this major latent defect, she must decide to leave the marriage. Whether she has to bolt the marriage immediately or may choose to remain for a period of time due to certain reasons is open to halakhic controversy.",
"In light of the facts in our case, we may refrain from staking out a position regarding this debate. Given that she continued to have conjugal relations with him, “savrah ve-kiblah” – she accepted the possibility that in the future she may be infected with a high-profile HPV and therefore she cannot contend that there was an error in the marriage. Secondly, at the end of the day, Avraham divorced her. As such, due to her decision to stay with the marriage including having intimate relations with Avraham one cannot contend that the possibility of an endangerment by a virulent HPV may serve as grounds to void the marriage based upon “kiddushei ta’ut.” Based upon the foregoing, there exist no grounds to void the marriage.",
"Secondly, in addition to classifying this matter as a mum gadol, the fact that he failed to disclose it prior to their marriage is an act of deceit and in accordance to Rosh as well as Rema such behavior serves as grounds to coerce a get. Here again, given that get coercion is not an option; the voiding of a marriage may be possibility in a situation of deceit and misrepresentation. In other words, the grounds would be based upon the fact that the husband acted improperly (“kiddushin she’lo ke’hogen”) that he failed to disclose that he was infected with a sexually transmitted disease. Here again, despite her awareness of being potentially infected since she remained married to Avraham, there would be no basis to void the marriage.",
"As we mentioned at the beginning of our psak din, decision we obligated Avraham to give a get to Esther."
],
"c) A husband with an inability to copulate": [
"A husband with an inability to copulate",
"Sara Kramer vs. David Kramer",
"On April 1, 2016, Sara Kramer of Seattle, Washington submitted a request to the beit din to be mevatel her kiddushin, to void her marriage due to the fact that her husband, David refused to give her a get. Despite the fact that we obligated him to give a get on July 2, 2015, until today, David continues to refuse to give a get to Sara.",
"In light of the arguments submitted by Sara during our beit din hearing, we were aware of our concern that the inability to have a get executed may lead to tarbut ra’ah, loosely translated as infidelity. Centuries ago, Rabbi Hayyim Pelagi warns that if a married couple separate and the beit din sees no hope for reconciliation and shalom bayit, a get ought to be executed lest the couple engage in sin. And given the breakdown of the nuclear family unit and laxity in moral standards in contemporary times, Rabbi O. Yosef claims:",
"Today . . . in the free world where each man acts in accordance to his perception of what is proper and hutzpah is pervasive in the world and experience shows that when wives leave their husbands . . . without giving them a get they live with other men and they have no shame . . . and mamzerim abound in the world.",
"In light of the fact that the couple separated in September 2014 and there are no prospects for marital reconciliation, a get has not been forthcoming, and there is concern for sinning, we must address whether there are grounds for bittul kiddushin.",
"The focus of our deliberation centers upon the wife’s argument regarding her husband’s refusal to engage in conjugal relations. In her presentation to this panel, she claims that her husband was incapable of copulate, namely an inability to maintain an erection while engaging in conjugal relations. Additionally, generally there existed no intimate relations between her and her husband and that the husband desired to engage only in anal sex.",
"I. Kiddushei Ta’ut (lit. A mistaken betrothal, loosely translated as a mistaken marriage)",
"Prior to invoking the tool of kiddushei ta’ut to void a marriage retroactively and claim there was an error in the creation of the marriage, three preconditions must have been obtained:",
"(1) The husband’s defect must be a major one (a mum gadol) such as sexual impotency, refusing to have children, insanity, homosexuality, apostasy, a marital expectation communicated by the prospective husband prior to the marriage which turns out to be a misrepresentation, engaging in criminal behavior such as business fraud or exposing one’s mate to a contagious disease such as syphilis or HIV, a flaw which must have been preexisting prior to the onset of the marriage. All of the aforementioned examples of a husband’s flaws have been characterized by one or more Poskim as a mum gadol. Whether a particular defect serves as major defect and therefore grounds for voiding a marriage is subject to the discretion of the beit din.",
"Though to the best of our knowledge there are no extant teshuvot dealing with a husband’s inability to copulate where Poskim have voided marriages, there are numerous rulings where a husband who is sexually impotent may be labeled a mum gadol and may be grounds to void the marriage. Notwithstanding some decisors who claim that one is proscribed from voiding kiddushin of a sexually impotent husband, there are Poskim who sanction voiding a marriage in such a situation.",
"Additionally, in accordance with some authorities, one may rely le’ma’aseh (in practice) upon those authorities who voided marriages in this situation le’halakhah ve’lo le’ma’aseh (in theory but not in practice).",
"Moreover, addressing the grounds for a release from halitzah due to a missing levir (brother-in-law) upon a wife’s discovery after marriage that her husband is sexually impotent, Rabbi Spektor writes:",
"In truth, . . . this is a major defect to void a marriage as Beit Yosef . . . writes in the name of Rashba that this flaw, that one cannot engage in intercourse at all, we know why a bridge enters the wedding canopy . . . and we coerce him to free her . . . we see that this is severe flaw because the majority are particular about this . . . and the Halakhah like all defects . . . is that it depends on the agreement of the citizenry as it is elucidated in Hoshen Mishpat 232:6 and therefore we coerce in regard to this defect . . .",
"To state it differently, the combination of invoking the sevara (halakhic logic) that “we all know why a bride enters the wedding canopy” and omaid ha-da’at, a person’s expectations that certain flaws like impotency void a couple’s agreement to marry, propels Rabbi Spektor to arrive at the conclusion that there are grounds to free her without performing halitzah.",
"On the other hand, addressing the grounds for voiding a marriage where the wife discovers after marriage that her husband is sexually impotent, Rabbi Feinstein advances a different rationale:",
"Since it is clear and straightforward that he isn’t capable to engage in intercourse which is a primary component of intimate relations for this is the reason why a bride enters the wedding canopy (embarks upon marriage – AYW) and the Torah identifies it as “innui” (torment – AYW) . . . and if in matters regarding which one doesn’t decide to become married . . . one cannot refrain from giving her (maintenance and clothing – AYW). . . . Therefore, it is clear that an individual who is not capable of intercourse is the greater defect . . . and one does not have to bring proofs for this. . . .",
"In other words, Rabbi Feinstein’s line of reasoning equally applies to our situation of a couple who sired a child yet the husband is unable to copulate. Just as a husband’s sexual impotence creates a situation of “innui” (tormentation) for the wife, similarly a husband’s inability to copulate engenders pain for the wife. Responding to a case where a husband was unable to sustain an erection (in the words of the wife – he entered and . . . his organ (penis – AYW) died”), Rabbi Dovid ibn Zimra (Teshuvot ha-Radvaz 4: 1188) rules that the husband failed to fulfill the mitzvah of onah and caused her pain. As we know generally speaking (except for shifah harufah – a maidservant with whom her owner has intercourse), entry of the crown of the penis into the vagina which is known as har’arah doesn’t suffice to comply with the duty of onah. See Radvaz, op. cit; Teshuvot Maharsham 5:48.",
"In short, implicitly following Rabbi Yosef Karo and Rema, the above is summed up in Shakh’s following formulation:",
"And if she claims that her husband does not sleep with her and does not engage in intercourse with her, the Halakhah is identical to the Halakhah when a wife claims that her husband is impotent.",
"Just as Rabbi Yosef Karo and Shakh argue that a husband refraining from having conjugal relations is halakhically equivalent to being sexually impotent, similarly the inability to copulate is to be treated like sexual impotence. Just as sexual impotence prevents a husband from performing his duty of “onah,” intimate relations, similarly, the inability to copulate undermines this duty of conjugal relations and engenders pain.",
"Given the halakhic equivalence of the inability to copulate to sexual impotence, consequently there ought to be grounds to coerce a husband to give a get, similar to a case of sexual impotence. In fact, Rabbi Yoshiyahu Pinto mandated get coercion in a case where a husband was unable to copulate. Given the fact that today, outside of Eretz Yisrael and Morocco, the civil authorities will not enforce a beit din’s directive to coerce a get, Rabbis Spektor, Klatzkin, Feinstein, Tzvi P. Frank, O. Yosef and others state there is a need to implement kiddushei ta’ut should the circumstances dictate that type of solution. As such, we view a husband’s inability to copulate as “a mum gadol.”",
"Seemingly, our conclusion that the inability to copulate constitutes a major defect is insufficient to void the marriage. One of the reasons the decisors chose to refrain from voiding the marriage was that there were prospects that the husband would be cured and then ready to engage in relations with his wife.",
"Moreover, we have assumed until now that the husband was either obligated to give a get or ought to be coerced to give a get. Nonetheless, since treating the problem with medication may have solved the problem, under such circumstances there would be no duty to give a get. If there is no foundation to obligate a get in our case, a fortiori there was no basis for get coercion and as such there is clearly no basis to void the marriage!",
"We have three replies to this position. Firstly, according to Rabbi Yitzhak Kolitz, albeit expressing a minority view will obligate a get even if the husband has yet to seek medical assistance.",
"Secondly, Rabbi Tzvi Pesah Frank teaches us the following:",
"This concern that he may be cured applies to the Halakhah of coercing him to free her. In this context, one must distinguish between a permanent flaw and a temporary flaw where our Sages did not say we coerce a get when there are prospects of improvement. However when dealing with a mistaken transaction since it is dependent upon human expectations and the expectation is that a person does not want to enter a situation where there is a doubt (whether the person will be cured – AYW). . . .",
"In contradistinction to Rabbi Menahem Schneersohn who contends that the issue of curability is a factor in kiddushei ta’ut as well as concerning get coercion, Rabbi Frank claims this factor of curability only relates to whether one coerces a get. In our case, if the wife would have been aware of this flaw and that it may not be curable; clearly she would not have married him.",
"The husband refused to avail himself of medical assistance. It was the husband’s responsibility to seek help. In the event that the husband refuses to be cured, following implicitly the mesorah of others, as Ra’avyah and Rabbi Stern argue, the Talmudic hazakah (presumption) of “tav le’meitav tan do mi-le-meitav armalu” (lit. translated: better to live as two than to live alone) is inapplicable. As such, under these circumstances bittul kiddushin is applicable.",
"As noted by Rabbi Avraham Yudlovich, David’s failure to engage in conjugal relations is a breach of an implicit condition of the marriage in general and an explicit condition of the ketubah, the marriage agreement in particular.As such, in a case of igun the marriage may be voided based upon kiddushei ta’ut.",
"(2) The wife must be unaware of the defect prior to the inception of the marriage and only discovered it after the marriage. On the other hand, if for example, during the marriage a husband commits adultery or contracts Alzheimer’s, though both may be characterized as a mum gadol that significantly impairs the matrimonial relationship, nevertheless since the conduct or disease respectively occurred after the onset of the marriage there would be no grounds for a wife’s claim that the marriage was consummated in error.",
"Based upon the cumulative evidence submitted, we find that Sara became aware of her husband’s inability to copulate after the onset of the marriage.",
"Lest one challenge our conclusion based upon the fact that there is no proof that in fact this mum preexisted the marriage and therefore we should follow Rabbi Aharon Walkin’s ruling that one is proscribed from voiding the marriage based upon “kiddushei ta’ut” when it isn’t clear that sexual impotence preexisted the marriage, we must respectfully disagree.",
"In contradistinction to Rabbi Walkin’s posture, a review of the teshuvot, rulings dealing with impotence and which explore the possibility to void the marriage via the vehicle of kiddushei ta’ut only inquire whether there is medical testimony or documentation if the husband was impotent after the marriage was executed or if the wife still was a virgin. There is an implicit premise in the aforementioned teshuvot that the flaw existed prior to the marriage. Addressing a case where there was no proof that prior to the marriage the husband was sexually impotent, Mahariz Enzel rules that we invoke the hazakah, the presumption that in fact he was impotent prior to the marriage! Therefore, in our case, even though no proof was submitted that demonstrated that his disorder of being unable to copulate existed prior to the marriage this should not preclude this panel from voiding the marriage. Moreover, though generally if a wife is aware of a husband’s major flaw prior to the marriage, there would be no grounds to subsequently void the marriage, in a situation where he is sexually impotent and the wife is aware of the defect prior to the marriage, the marriage could be voided subsequently because of the inability to sire children. Consequently, based upon invoking “medameh milta le-milta” (analogical reasoning) we conclude that the inability to copulate is an impediment to engaging in conjugal relations and therefore even if Sara would have known about his defect prior to their marriage, there would be a basis to subsequently void the marriage.",
"Lest one challenge our conclusion that the husband was unaware prior to his marriage of his inability to copulate therefore since his failure to disclose this mum to his wife was unintentional therefore we cannot invoke kiddushei ta’ut in order to void their marriage, we disagree. Nothwithstanding that there exist authorities who would refrain from employing the technique of kiddushei ta’ut under these conditions, other Poskim disagree and contend that this avenue to engage in bittul kiddushin will equally apply regardless if the husband intentionally or unintentionally failed to disclose the mum to his wife prior to the marriage.",
"(3) Finally, upon a wife’s awareness of the major latent defect, she must decide to leave the marriage. Regarding this condition, whether she must immediately leave the marriage or not is subject to debate. Though in accordance with certain Poskim, upon discovery of a major latent defect one must bolt the marriage immediately or refrain from remaining in the marriage for an extended period of time, nonetheless, in pursuance to Rabbi Moshe Feinstein and others who argue that she may continue to live with him provided she offers a reasonable explanation.",
"Consequently, in our situation, the couple married in July 2010. The defect was discovered in August–September of 2011 and she left the marital home during September 2014. In pursuance to the first approach, one cannot void the marriage since it seems she accepted the fact that he had a flaw (“savrah ve-kiblah”) given that she only left almost three years after her discovery.",
"The compelling question is why did she discover her husband’s disorder of the inability to ejaculate only after one year and a half of marriage? Secondly, upon discovery of the defect why did she remain married to him? Why did she wait three years before separating from him?",
"In response to our first question, let’s cite an excerpt from Dayan Tzion Boaron’s ruling. Dealing with a husband who was mentally dysfunctional, Rabbi Boaron describes the wife’s mindset prior to discovering that her husband was suffering from a mental disorder in the following fashion:",
"And one should not conclude that since she lived with him for seven years and gave birth to two children, she observed the defect and forgave him (“mehilah”). That is not the case. When dealing with such matters a person cannot understand the nature of the disease until much time has elapsed since sometimes due to her love for him she rationalizes his anger and temper and his agitated condition as being transient and she longs and hopes that the situation will improve. In particular, a person who takes medication regularly, there are times when he is content and silent. . . . One cannot say one observes and one is appeased as written in Maharsham . . . when he was asked about a couple who lived together for over 14 years. Since episodes of mental dysfunctionality occur from time to time and a man hopes to be cured and therefore . . . one cannot speak of seeing and being appeased.",
"In our case, when Sara married David she was 19 years old and, in her own words, “naïve.” It was only in August 2011, a year and a half after her marriage commenced that she began to understand partially what was transpiring in her bedroom. And only after conversing with her girlfriend did she fully understand that her husband had a serious problem, namely an inability to copulate.",
"After she recognized “the situation,” she did not leave him because he promised that he would seek medical help for his problem. Rabbi Boaron argues that sometimes it takes time to be educated to what is transpiring in front of one’s eyes and one cannot say “she observed and was appeased” because in Rabbi Boaron’s scenario the mentally impaired husband was taking medication. A fortiori in our case where it took time for Sara to comprehend what was happening and even after she came to the realization of what she was dealing with nonetheless her husband refused to take medication one cannot say “she observed and was appeased”! After a brief time, she realized that all his promises to seek medical assistance would never materialize, nonetheless she remained in the marital home due to the fact she apparently had no money to pay for the rent as well as ongoing domestic expenses. As Rabbi Feinstein rules in a situation where a wife has “a ta’am hagun,” a proper reason or “tirutzim nekhonim” reasonable explanations to remain with her husband, one may remain despite his major defect. Finally, after three years, upon being able to address her financial matters, she left him due to his inability to copulate and for her to live with him intimately. Rather than bolt the marriage immediately, the wife should wait and see if the situation may be curable. Unknowingly, as we mentioned in our first decision Sara was following the view of some Poskim that one waits two or three years hoping that a cure would be found.",
"Let us summarize our presentation by citing from Dayan Boaron’s aforementioned teshuvah dealing with a mentally dysfunctional husband.",
"We find that in our case that the kiddushin have been undermined certainly in terms of the hazakah that a person is not appeased with such a defect . . . and there is omeid ha-da’at (a clear expectation – AYW) that if she had known about the disease prior to the marriage surely she would not have consented to marry him.",
"In accordance with the halakhic thinking of Rabbi Boaron, there is a presumption that a wife will not appease herself by living with a husband who has problems with copulation and there is a clear expectation that if she knew about what would occur “in the bedroom” during the marriage, she never would have married a husband who possessed such a major defect.",
"2. Umdana – A wife’s assessed expectations of the marriage",
"The question is whether a husband’s abstention from conjugal relations may serve as grounds to void a marriage.",
"There is a duty upon a husband to have conjugal relations with his wife. Whereas according to some authorities the obligation is derived from the Biblical word in Shemot 21:10 “she’erah . . . he shall not diminish” or “ve’onatah he shall not diminish,” others derive the duty by logical inference. Elaborating upon this position, Rabbi Naftali T. Berlin states:",
"Reason informs us that (the husband) is so bound . . . as everyone knows, for this purpose that a bride enters into marriage. . . . Hence if he denies her sexual ties, she is deprived of her right.",
"When dealing with monetary matters, generally speaking, Halakhah allows individuals including prospective spouses to determine their own monetary relationships, provided that the arrangement complies with a proper form, i.e., kinyan, and is not violative of any prohibitions such as theft or the interdict against taking ribbit (halakhic interest).",
"On the other hand, a husband is proscribed from preparing a prenuptial agreement which releases himself from his duty to perform conjugal relations due to the fact that such abstention from relations engenders “tza’ar,” pain for his wife and/or is understood as entailing “the ikar ha-nissuin”, the essence of marriage. Notwithstanding the view of Talmud Yerushalmi and a few decisors, adopting the Talmud Bavli’s position, the majority of Poskim invalidate such a condition due to the fact that it is “matneh al mah sha-katuv ba-Torah,” it is a stipulation in variance to the Torah.",
"In short, the performance of “onah” is one of the foundations of a halakhic marriage and consequently a husband cannot decide to unilaterally opt out of it.",
"The obligations and rights between a husband and wife emerge from the establishment of marriage regardless of whether the parties put these duties and rights into writing and regardless if they spoke about them. One of the husband’s duties is to provide “onah,” the engagement in intimate relations. Here we are not referring to creating a family but rather engaging in sexual relations. The husband’s performance of the imperative of onah applies even if his wife gave birth to children in a former marriage or from him. A husband’s failure to perform onah places him in the category of “a moreid,” a rebellious husband and we coerce a get even without forewarning him.",
"In short, Sara is arguing that had she known that there would be no conjugal relations she never would have married him. In effect, she is advancing an umdana. In contradistinction to kiddushei ta’ut which as we have demonstrated focuses upon a husband’s flaw prior to the marriage, namely the existence of a preexisting grave flaw in the husband’s physiology or behavior which if failed to be disclosed may under certain conditions be grounds to void a marriage (bittul kiddushin), umdana deals with an event (or events) which transpires after the inception of marriage. For example, “had I known that my husband would have become a mumar (an apostate Jew), become a criminal or would have become mentally dysfunctional during our years of marriage I never would have married him” may serve as illustrations of a wife invoking an umdana demukhah, a major inference from assessed expectations (hereafter: umdana) which if proven may serve as grounds to void a marriage without the giving of a get.",
"The question is whether a husband’s unwillingness to engage in sexual relations rises to the level of an umdana demukhah, a major inference from assessed expectations for his wife. If in fact in this case, we are dealing with an umdana demukhah, according to many Poskim, the assessed expectation of one person suffices in order to void a commercial transaction and according to certain Poskim under certain conditions we can invoke an umdana in order to void a marriage or eliminate the need for a halitzah. ",
"This umdana of marriage of “ada’ata dehakhi lo kidshah nafshah”(lit.with this understanding she never would have married him) is to be understood as an implicit condition to the marriage. In other words, in our case, given that the husband here failed to have intimate relations he is an undermining a tenai, a condition to the marriage and therefore we may invoke the umdana “ada’ata dehakhi lo kidshah nafshah.” Moreover, in accordance with Rabbi Moshe Rozin one may invoke this umdana (on this understanding she did not betroth him) as a vehicle to void the marriage in a situation where conjugal relations are being withheld by a husband.",
"This umdana “contemplates” that under certain conditions the wife expects that she will be able to exit the marriage if her spouse acts improperly. As some Poskim point out, prior to invoking the umdana one must be assured that there exists no basis to coerce the husband to give a get. If get coercion is a distinct possibility, her marriage may be dissolved by get coercion due to her husband’s failure to perform onah and therefore there would be no basis for invoking an umdana.",
"If Tova’at had been residing in Eretz Yisrael where get coercion is an option, albeit employed on a limited basis, the marriage may have been dissolved by get coercion. And in pursuance to certain Poskim, in light of the option of get coercion, Sara may have been unable to invoke the umdana. However, today outside of Eretz Yisrael, where Sara resides, there is no beit din which is legally and thus halakhically empowered to coerce a husband to give a get. Consequently, in the absence of the ability to coerce David to give a get, based upon the submitted facts we may employ the umdana due to his failure to have relations with his wife.",
"Based upon the foregoing presentation and the cumulative evidence submitted to this beit din, notwithstanding contrary views recorded in some teshuvot which reject the deployment of umdana as a means to void a marriage, following a mesorah to which we alluded to earlier in our presentation, we find that our analysis of the umdana, ada’ata dehakhi lo kidshah nafshah which may be invoked concerning the absence of marital relations on most occasions provides the grounds for freeing the Tova’at from her marriage without the giving of a get.",
"In sum, we are voiding this marriage due to the husband’s incapability of copulating during intercourse based upon “kiddushei ta’ut” and his unwillingness to engage in conjugal relations based upon the invoking of an “umdana.”",
"To state it differently, with the establishment of a halakhic marriage, there emerges the hazakah, the presumption of an eishet ish, a married woman which renders both spouses subject to various issurim, prohibitions including sexual ties to a third party. As noted by some Poskim, if there is sefek sefeika me’doraita de’dina, a double doubt regarding what the Halakhah ought to be, one can permit certain leniencies concerning certain marital and divorce matters and therefore trump the hazakah of an eishet ish.",
"Consequently, in regard to bittul kiddushin, voiding a marriage we are invoking the mesorah, the tradition that a sefek sefeika de’dina is effective to trump a hezkat eishet ish. In our case, there is a controversy whether kiddushei ta’ut is a valid technique to void a marriage. As such, there emerges a safek, a doubt whether voiding a marriage in such a fashion is halakhically proper. Moreover, there is a second safek whether there are grounds to void a marriage based upon the deployment of an umdana. In light of the aforementioned mesorah, when there exists a sefek sefeika whether a certain technique may be implemented to void a marriage, the sefek sefeika is effective against the hezkat eishet ish and therefore under certain conditions the marriage may be voided.",
"Based upon the foregoing presentation, Sara is free to remarry, even a Kohen, without a get."
],
"d) A husband who suffers from a delusional jealousy disorder and engages in spousal rape": [
"A husband who suffers from a delusional jealousy disorder and engages in spousal rape",
"The facts of the case",
"The couple was married in 2004 according to Halakhah. Over a period of eleven years, they had three children. Four to five years into the marriage, Miriam (hereafter: Tova’at – the plaintiff) read Yosef (hereafter: Nitva’s – defendant’s) text messages that he sent to other women such as “thank you for last night” and once overheard him having a lengthy telephone conversation with a woman. As a result of these events, Tova’at confronted him regarding these liaisons and conversations and he became very angry. Subsequent to this conversation, in October 2012, he accused her of sleeping with other men including his cousins, her brother-in-law, his brother-in-law, the kosher store owner and other men she did not know. These accusations did not subside and her siblings, when asked, “what can you say about their marriage,” their immediate reply focused upon his allegations of the Tova’at’s cheating. These were allegations because Nitva was never able to corroborate that such behavior occurred. Nevertheless, Nitva’s accusations abounded about his wife. If he saw a tissue or napkin, he thought she was throwing away sperm. He would arrange the pillows at night and if they were not perfectly arranged the way he left them, he accused her of bringing over a man. Due to her alleged cheating, he would keep her in their home and not let her leave. A few times, he stalked her, recorded her conversations on the home and cell phones, and put GPS on her phone. He installed cameras in and outside of the house in order to monitor Tova’at’s activities. From time to time, he had hallucinations which made life difficult for the couple. With the onset of his allegations of cheating, Nitva began to engage numerous times in emotional and physical abuse including spousal rape, even during the time that she was a nidah, her menstrual period. . With the onset of the abuse, she became afraid of him and scared of falling asleep. Her children were frightened and their grades in school dropped. Nitva made her swear on a sefer Torah in the synagogue that she was faithful to him.",
"Upon observing some of this behavior, Nitva’s parents took him to a psychiatrist and the diagnosis given was that he had “delusional jealousy disorder.” Tova’at submitted to us a bottle of medicine dated December 2, 2012, which states that a psychiatrist prescribed for Nitva a medicine known as risperidone which is antipsychotic medication and prescribed for people suffering from delusional jealousy disorder. It is a psychiatric phenomenon in which an individual has a delusional belief that his spouse is being unfaithful. Individuals who suffer from a jealousy disorder, but who fail to experience delusions will not fit the diagnostic criteria for this type of a disorder. Some of the symptoms of this disorder include interrogating the spouse’s phone calls, accusing one’s spouse of looking or giving attention to other men, questioning the partner’s conduct, claiming the partner is engaging in an affair, and engaging in verbal, emotional, and physical abuse. Tova’at’s representation of his conduct confirms the psychiatrist’s diagnosis. Delusional jealousy has received increasing attention from the psychiatric community in the last twenty-five years due to its link with subsequent aggression, especially as directed toward spouses.",
"Though Nitva went for therapy a few times between the end of November 2012 until January or February 2013, Nitva refused to continue the counseling because he felt that “Tova’at was the problem, not him” (his approximate words). Nitva started to take medication for his disorder in December 2012 but ceased taking the medication because Nitva claimed “that Tova’at was the problem, not him.” In reply to our question to members of her family, “what can you tell us about their marriage?” their response was that Nitva continuously claims that Tova’at is cheating but he has never brought any evidence to support such accusations.",
"Given that the situation failed to improve, Nitva’s parents suggested to their daughter-in-law to leave him. In June 2014, the couple separated. Given that the marital situation had deteriorated already in October 2012, the Beit Din asked her – “why did she wait until June 2014 to bolt the marriage?” Her reply was she had tried to save the marriage for her children and herself and her in-laws were supportive of her mission, but at the end of the day, she realized (and her in-laws agreed) that there were no prospects “to turn the clock backwards” to restore her husband to psychological normalcy and therefore she separated from him. Her reasons for divorce were because of the emotional abuse, physical abuse and spousal rape perpetrated by Nitva. On various occasions she warned Nitva to cease from abusing her sexually, physically and emotionally. Though Nitva hit her a few times, she refrained from reporting these incidents to the police. However, on November 27, 2013, Tova’at reported an incident to the police and from that time onwards, she had a full order of protection which was subsequently reissued on June 30, 2015, and recently on July 8, 2016. Though in May 2014, Nitva was allowed to return to the marital home, the abuse did not subside and a month later the couple separated.",
"The Tova’at does not want to return to him under any circumstances and since the separation transpired over two years ago, she is requesting her get. Though various local rabbis have attempted to persuade him to give a get and over a year ago, we obligated him to give a get, nonetheless he remains recalcitrant and alleges that he will give the get provided that Tova’at waives her right to approximately $20,000 of unpaid child support payments, discontinues all civil actions such as claims for continuing child support as well as having the order of protection withdrawn.",
"Tova’at refuses to comply with his demands and consequently Nitva refuses to give a get. Therefore, we now have to address whether there are grounds to engage in bittul kiddushin, loosely translated as voiding the marriage.",
"Discussion",
"The threshold question is whether a person exhibiting delusional jealousy disorder falls into the halakhic category of a shoteh (halakhically mentally dysfunctional)? The Tosefta and Talmud define four characteristics of a shoteh: one who goes out alone at night, he who spends the night in a cemetery, one who tears his clothes and one who loses what is given to him. Notwithstanding Rabbeinu Simhah, Rabbi Avigdor, Rabbi Moshe Sofer in the name of Rashba, Rabbi Yosef Steinhardt, Rabbi Schneersohn and Sanzer Rov who claim that the list is closed, Hakhmei Provencia, Rambam, Mahari Weil, Tur, Shulhan Arukh, Rema and others rule that the list is not exhaustive of shoteh conduct and therefore a person can be classified as a shoteh even if his behavior was not one of the four characteristics of a shoteh as enumerated in the Talmud.",
"Adopting the latter approach, the question is whether exhibiting delusional jealousy disorder reflects shoteh-like behavior. Individuals with delusional disorder are afflicted with the symptom of “being out of touch with reality.” This behavior may parallel the concept of shoteh le-davar ehad, insane concerning one matter while remaining lucid in other matters of his behavior. As the Lomzer Rov teaches us the individual who is itim halim, ittim shoteh (sometimes sane and sometimes psychotic) experiences moments when he is completely normal and other times when he is abnormal. On the other hand, shoteh le-davar ehad is continuously delusional in one area and acts normal in other areas.",
"In accordance with various Poskim shoteh le-davar ehad is halakhically viewed as a shoteh. Numerous Poskim argue that the psychotic behavior must have occurred at least three times in order to label him a shoteh.",
"Based upon the foregoing halakhic analysis as well as the cumulative evidence submitted to this panel, the behavior of an individual exhibiting delusional jealousy disorder is the conduct of a shoteh for two reasons: Firstly, such behavior is subsumed in the category of shoteh le-davar ehad and secondly the recurrence of this psychotic conduct more than three times labels him as a shoteh. Pursuing the view of Tosafot that mandates that there must have been an assessment that in fact he is a shoteh le-davar ehad, Yosef was diagnosed by a health care professional with this disorder and therefore Yosef is deemed a shoteh only with regard to his recurring conduct which is symptomatic of his delusional jealousy disorder.",
"The question is whether one may void a marriage entails a threshold issue whether the ilat gerushin (grounds for divorce) may be coerced by a beit din or not? To state it differently, in pursuance to this mesorah, if the ilat gerushin is subject to get coercion then one may investigate whether there are grounds to void the marriage. On the other hand if the ila is not subject to get coercion an arbiter is proscribed from deliberating whether the conditions have been obtained in order to void the marriage.",
"Consequently, based upon presentation the emerging question is whether there is a basis to coerce him to give a get due to his mental disorder which was not symptomatic of the shoteh-like behavior as outlined in Talmud Hagigah? Given these circumstances, clearly there are Poskim who would be unwilling to coerce a get. Consequently, in the pursuance of the above mesorah, tradition there would be no basis to deliberate from the perspective of the husband’s mental condition upon the merits of voiding this marriage.However, there are other decisors such as Rabbi Moshe Feinstein and Rabbi Tzvi P. Frank for have voided marriages where the husband exhibited shoteh-like conduct which did not reflect necessarily the Talmudic criteria of what constitutes such behavior. ",
"Alternatively, as aptly noted by Dayan Binyamin Be’eri who gave his endorsement of a recent Haifa Beit Din ruling (which is the longest extant teshuvah, responsum dealing with kiddushei ta’ut ever written) argues that even if a particular ilat gerushin fails to permit a beit din to impose get coercion, nonetheless there may still be grounds fo voiding the marriage due to kiddushei ta’ut. Moreover, a review of numerous teshuvot, responsa will demonstrate that it is unusual that a Posek will advance argumentation that the particular ilat gerushin under review dictates get coercion prior to addressing the merits of voiding the marriage.",
"In contradistinction to kiddushei ta’ut which focuses upon an event prior to the marriage, namely the existence of preexisting grave flaw in the husband’s physiology or behavior which if failed to be disclosed may under certain conditions be grounds to void a marriage (bittul kiddushin), umdana deals with an event (or events) which transpires after the inception of marriage. In the Talmud and subsequent mefarshim (commentaries) and teshuvot (responsa), it is known as – “ada’ata dehakhi lo kidshah nafshah” (on this understanding she did not betroth him). For example, “had I known that my husband would have become a mumar (an apostate Jew), become a criminal or would have become mentally dysfunctional during our years of marriage I never would have married him” may serve as illustrations of a wife invoking an umdana demukhah, a major inference from assessed expectations (hereafter: umdana) which if proven may serve grounds to void a marriage without the giving of a get.",
"Based upon the cumulative evidence submitted to this panel at our hearings which occurred in the summers of 2015 and 2016, it is clear that Nitva was suffering from delusional jealousy disorder. The question is whether “had she known that her husband would have developed delusional jealousy disorder during her years of marriage she never would have married him” may be advanced on her behalf by the beit din as grounds to void their marriage? In other words, can we employ the umdana – “ada’ata dehakhi lo kidshah nafshah” (lit. on this understanding, she never would have married him”) in order to void the marriage?",
"Addressing the situation of a mentally dysfunctional wife, Rabbi Tzvi Pesah Frank argues that living with a shoteh, a spouse who is mentally impaired and is viewed halakhically as a shoteh is an illustration of the Talmudic observation “one does not live together with a snake in the same basket.” As Talmud Yevamot 112b explains the reason it has been halakhically legislated that marriage cannot be consummated by a shoteh is because “one does not live together with a snake in the same basket.” Consequently, addressing the case of a mentally impaired husband who is hospitalized, concludes Rabbi Frank, we void the marriage based upon the umdana of – “ada’ata dehakhi lo kidshah nafshah.” Addressing the case of a mentally dysfunctional wife who is unable to receive a get, Rabbi Shalom Schwadron contends that one may void the marriage based upon the identical rationale of “one does not live together with a snake in the same basket.” Moreover, Rabbi Schwadron adds that the invoking the umdana means that a tenai, a condition of the marriage has been violated.",
"Clearly, having to live with a spouse who exhibits the symptoms of an individual who is suffering from a delusional jealousy disorder is manifestly different from residing with a husband who is a conventional shoteh. But the net result is identical. Both marital experiences entail severe psychological disorders which evoke one to exclaim “one does not live together with a snake in the same basket.”",
"The application of the umdana is not limited to the inability to live with a husband who exhibits delusional jealousy disorder. A fundamental requirement for a stable marriage is a husband’s respect for his wife. Our foregoing presentation of the facts conveys to this panel Nitva’s lack of respect for his spouse. The halakhic imperatives of kavod ha’beriyot and kavod ha’ishah are well known and well documented and do not require any further elaboration here. What we have here is a continuing violation of the rabbinic directive “that a man ought to respect his wife more than himself and love her like himself . . . and he should not instill excessive fear and his speaking should be calm rather than be sad or angry.”",
"The lack of Nitva’s kavod, respect, to his wife was strikingly present in their bedroom.Unlike civil law, the norms of Halakhah are not limited to matters of social,economic and political interaction but equally extend to how a married ought to act in their bedroom. There is a duty upon a husband to have conjugal relations with his wife. Whereas according to some authorities the obligation is derived from the Biblical word in Shemot 21:10 “she’erah . . . he shall not diminish” or “ve’onatah he shall not diminish,” others derive the duty by logical inference. Elaborating upon this position, Rabbi Naftali T. Berlin expounds:",
"Reason informs us that (the husband) is so bound . . . as everyone knows, for this purpose that a bride enters into marriage. . . . Hence if he denies her sexual ties, she is deprived of her right.",
"In other words, Halakhah recognizes the wife’s right to conjugal relations and therefore the husband has a duty to provide it to her. In fact, for Rashba, a couple is mutually obligated one to another as result of the establishment of the marriage.",
"Others such as Rabbi Avraham Min Hahar and Rabbi Berlin emphasize that the husband has a kinyan vis a-vis his wife but only with regard to sexual relations.",
"However, although the husband’s kinyan exists and she has a duty to engage in conjugal relations, her husband may not ravish her. As Rabbi Yosef of Trani notes, “certainly she is not subject to him incessantly when she does not desire it.” His words were cited subsequently by Rabbi Refael ibn Shimon. Almost two hundred years ago, there was a case reported to a beit din of Rabbi Refael ibn Shimon in Egypt where the husband had relations with his wife frequently during one night, leaving her tired and sleepless, and the holding of the beit din was that the wife was not deemed a moredet (a rebellious wife who refuses to engage in intercourse with her husband) and she was validated for her refusal to have intercourse.",
"A wife may cease and desist from having relations with a husband who advances excessive demands regarding conjugal relations and she will not be deemed a moredet who under certain conditions may be divorced by her husband.",
"Our presentation can be best summed up in the words found in Chapter 6 of Iggeret ha-Kodesh whose authorship is attributed to Ramban:",
"When a man has relations (with his spouse) he should not do so against her will and he should not rape her; the Divine Presence does not reside in such unions . . . he should persuade her with kind and enticing words and other proper and appeasing things. . . . Rather he should awaken her and arouse with alluring words and desire as we said. In short: Before having intercourse, when a man is aroused he should make sure that his wife is enticed as well. In effect, your wife’s mindset should correspond to yours.",
"Moreover, having to experience pain as a result of being a victim of spousal rape violates what the Talmud teaches us that a wife was given to a husband “for life and not for pain.” Being a victim of spousal rape in and of itself entails an infraction of Halakhah. Being a victim of sexual abuse, Tova’at is an object to be exploited rather than a human being to be respected.",
"Contemporary Poskim such as Hazon Ish and Rabbi Y. Halberstam rule that rape even though generally it does not entail the meting out of force (albeit under certain circumstances it occurs but it is secondary to the actual act of rape) is a violation of lo yosif and therefore is an infraction of habalah, battery.",
"Consequently, whether one would coerce a get in this case of spousal rape may be derived from how Poskim rule regarding coercing a get in the case of in battered wife. Notwithstanding that many Poskim reject get coercion in the case of a battered wife, there are others who under certain conditions will issue a psak din of kefiyat get, a compulsion order.",
"Furthermore, as we mentioned, Nitva was engaged in acts of emotional abuse such as prohibiting Tova’at from leaving their home, stalking her when she was escorted by her in-laws, recording her conversations on the home and cell phones, and putting GPS on her phone. Moreover, he installed cameras in and outside of the house in order to monitor Tova’at’s activities. In accordance with Mishnah, Talmudim and Poskim under certain conditions one may coerce a get when a husband emotionally abuses his wife.",
"Noting the impropriety of emotional abuse of a spouse, argues Gaon of Vilna,",
"Even other matters that do not engender that much pain such as a husband who takes a neder, a vow that his wife should refrain from going to her father’s home or to a house of mourning . . . a fortiori if he pains her physically.",
"In other words, implicitly following earlier authorities, Vilna Gaon is deriving the halakhah of get coercion in the matter of spousal physical abuse from the Halakhah of get coercion in the case of spousal emotional abuse.",
"Finally, if Tova’at had been residing in Eretz Yisrael where get coercion is an option, albeit employed on a limited basis, the marriage may have been under certain conditions dissolved by get coercion. And in pursuance to certain Poskim, in light of the option of get coercion, Tova’at may have been unable to invoke the umdana. However, today outside of Eretz Yisrael where Tova’at resides, there is no beit din which is legally and thus halakhically empowered to coerce a husband to give a get. Consequently, in the absence of the ability to coerce Nitva to give a get, based upon the submitted facts we may employ the umdana regarding Nitva’s different acts of spousal abuse. This umdana – “ada’ata dehakhi lo kidshah nafshah” is to be understood as an implicit condition to the marriage. In other words, in our case, given that the husband failed to respect his wife by engaging in different forms of abuse including spousal rape and emotional abuse, Nitva is undermining a tenai, an implicit condition to the marriage and therefore we may invoke the umdana “ada’ata dehakhi lo kidshah nafshah.” Moreover, in accordance with Rabbi Moshe Rozin one may invoke this umdana as a vehicle to void the marriage in a situation where a husband fails to fulfill his duty of onah, conjugal relations in a proper halakhic fashion.",
"Based upon the foregoing presentation and the cumulative evidence submitted to this beit din, notwithstanding contrary views which reject the deployment of umdana as a means to void a marriage, following a mesorah which we alluded to at the beginning of our discussion, we find that our analysis of the umdana, ada’ata dehakhi lo kidshah nafshah which may be invoked concerning mental dysfunction of a husband as well as spousal abuse including spousal rape provides the grounds for freeing the Tova’at from her marriage without the giving of a get.",
"In light of the umdana that one cannot reside with a husband who is suffering from delusional jealousy disorder, a disorder which is accompanied by physical and emotional abuse as well as the engagement in spousal rape, Miriam is free to remarry without a get any Jew, even a Kohen."
],
"e) A husband who engages in spousal rape, refrains from supporting his wife, emotionally abuses his wife and stepchildren and remarries without giving a get to his wife": [
"A husband who engages in spousal rape, refrains from supporting his wife, emotionally abuses his wife and stepchildren and remarries without giving a get to his wife",
"Facts of the Case",
"On August 7th and 11th, 2014, September 3rd, 2014, and August 10th, 2016, the aforementioned case was heard and submitted for resolution to this beit din.",
"Mrs. Bryna Stern (hereafter: Tova’at, the plaintiff) an agunah (“chained wife”) for eight and a half years summoned Mr. Haim Stahl, her husband (hereafter: the Nitva – the defendant), before our Beit Din for the purpose of freeing her from her status of igun (chained to a marriage). During Chanukah of 2004, Tova’at requested a get, and in January of 2005, the Tova’at separated from Nitva. In the summer of 2007, the marriage was civilly annulled. To this very date Nitva will only grant her a get in exchange for monetary remuneration in the amount of $300,000.00. Tova’at refuses to comply with his condition and therefore Nitva refuses to give her a get. Subsequent to his demand for “a conditional divorce” Nitva has married another woman without giving a get to his second wife (Tova’at). On December 29, 2014, we obligated him to give a get. As we stated in our decision, according to most Poskim in a situation where a beit din obligates a get, the giving of the get by the husband cannot be contingent upon the wife fulfilling certain conditions. Given that he continued to refuse to give a get, on September 30, 2015, we directed the community to initiate religious, social and economic isolating measures in the form of “harhakot of Rabbeinu Tam” against him in order to persuade him to give a get. To date, a get has not been forthcoming.",
"Now let’s briefly summarize the facts of the case: Prior to the marriage which took place on July 4, 2000, the couple courted each other extensively. Both parties had been married previously and sired children from their respective marriages. There were over ten conversations between the parties during their courting and one-third to half of these conversations dealt with what each one expected of the other should they marry each other. Each one was very concerned to have this second marriage be successful. Though the Nitva spoke to Tova’at about his expectations in the marriage, the majority of these conversations focused upon Tova’at’s hopes. Tova’at alleges that she wanted to marry a person who would be kind and considerate to her and to her two sons, and as is the case with most prospective wives, was looking for someone who would be economically supportive in their marriage. Given that at the time, Tova’at was almost destitute; her concern to marry a breadwinner was a significant consideration in finding the proper mate. Already in 1987, Tova’at began working in order to supplement her first husband’s income. As such, both her past marital history from the first marriage and her current economic situation propelled her to be concerned that Nitva would be economically supportive. And in fact, Tova’at alleges that Nitva treated her children nicely prior to their marriage. Regarding Tova’at’s expectations that Nitva would be amiable, good-natured and caring with her children, this representation was corroborated by a woman who initially was a friend of Tova’at and subsequently during the marriage became a friend of the couple and had been told by Tova’at about this expectation during the marriage prior to Tova’at’s decision to seek a divorce. The Tova’at’s children corroborated to this panel that prior to the marriage their step father was kind and friendly towards them.",
"Immediately after the marriage commenced, Nitva’s attitude and conduct towards his stepchildren radically changed. During family road trips when the children were between the ages of 6 and 13, Nitva would insist that they wear diapers and defecate in their diapers rather than stop on the road and allow them to go to the bathroom. As a controlling personality who dictated that Tova’at and her children accede to his many requests, Nitva instilled fear in the minds of Tova’at’s two children and ejected one of her children who challenged his authority from the marital home for a few months. This ejection of one of Tova’at’s children from the marital home for a period of a few months was corroborated by various individuals including the family rabbi. Whereas one of his stepsons tended to be attentive to his requests, the second son was a more independent personality as well as more aggressive and would not necessarily comply with all his wishes. At times, he would raise his hand against him, attempted once to hit him with a bat, and at other occasions throw things at him. As such, one can understand (not justify) the background of his ejection from the home. At one point, Nitva threatened to leave the marriage unless this stepson would permanently move out of the home. Testimony submitted to this panel indicated that this stepson was a fine individual. At times, he criticized his stepchildren for things that they didn’t do and alleged that his children from his first marriage were better than his stepsons.",
"Throughout the duration of living together, on numerous occasions, Tova’at alleges that Nitva would engage, when she wasn’t a nidah, in spousal rape in the context of both natural and unnatural intercourse. When he was angry, he would insist in engaging in intercourse despite Tova’at’s protestations. On numerous occasions, despite Tova’at’s protestations, he would say, “I want to rape you.” And Nitva liked that Tova’at refused to engage in unnatural intercourse. In some of these incidents of spousal rape pain ensued either from the intercourse or from Tova’at’s physical fights with the Nitva concerning the rape, pain which lasted for a few days. After their separation, Nitva’s late father-in-law from his first marriage approached Tova’at and informed her that his daughter was a victim of spousal rape and wanted to know if she was also a victim of spousal rape. She replied “yes”. After the third hearing, we contacted the Nitva’s first wife in order to ascertain about matters relating to her marriage with the Nitva. She replied to us that certain matters in her marriage with the Nitva were fine except when asked “about the bedroom” she refused to respond to the beit din. Upon her suggestion, she advised us to contact her rabbi regarding this matter. Upon inquiry, the rabbi knew nothing about the nature of their intimate relations but surmised from her reluctance to talk about the matter that “things were bad”.",
"Subsequent to the couple’s marital separation, Tova’at alleges that Nitva had illicit affairs with an Asian woman and she told Tova’at that she was raped by him. For approximately a half year Nitva lived with her while she was in process of converting to Judaism and lived with her at her own expense. We attempted to contact her but were unable to reach her.",
"At the same time, Tova’at alleges that Nitva was emotionally abusive to her and a few times slapped her, threw a chair at her and pushed her once in the bedroom and once in the kitchen. When they moved from her parent’s house to a second home, though Nitva failed to assist in the moving, he insisted that his pregnant wife of 39 years old who was considered “a high-risk pregnancy” move some of the heavy belongings from their attic from their old home to the new one which was located on the same block. And the reason Nitva made Tova’at responsible for the moving is because he did not want to move out of their first house. Though Nitva never screamed at his wife while interacting socially with their friends, however at home he would curse her using foul language and scream at her as well as raise his hand at her (as well as her children) and one time screamed at her in a retail store when they were purchasing a dining room table. At least three times, Tova’at warned him to cease his demeaning conduct. But the behavior persisted. At one point, Nitva threw a neighbor out of the house. Though none of the witnesses (children, relatives, friends and third parties) were able to corroborate the physical abuse allegations, nonetheless the family rabbi as well as a woman who was living with the couple from late 2003 until early 2004 stated that her allegations of emotional abuse were true and one witness said that he treated her “like a slave.” Tova’at claims that he was sadistic and upon hearing that somebody passed away he reacted by laughing. Though there was no professional diagnosis of his conduct, after hearing about his behavior, one psychologist surmised that he was a sociopath.",
"Initially, in order to address their marital concerns, the couple attended various sessions with their family rabbi. Despite the prudent counsel which was provided by the rabbi, the marriage continued to disintegrate. However, already from 2001 through 2002, at Tova’at’s request, the couple was attending marital therapy sessions. Though the couple saw three therapists during this period, Nitva allegedly felt that the problems in the marriage stemmed from Tova’at’s behavior and therefore after attending one or two sessions with every therapist he failed to attend future sessions. After completing the sessions in 2002, Tova’at remained adamant in trying to continue the marriage for the sake of her children from her first marriage and her son sired from their marriage.",
"At the outset of the marriage, Nitva moved into Tova’at’s home purchased by her parents and a while later the couple moved into another home purchased by her parents. Any funds expended for the purchase of the new home were covered by Tova’at’s salary as well as money loaned to her by her parents. Though Tova’at’s first husband was paying $3750 monthly child support and tuition for his two sons, after approximately three years into her second marriage, those monies ceased to be forthcoming for her children. Though he earned income, Nitva kept the overwhelming majority of those monies for himself. In fact, the couple filed their tax returns separately. In short, from the onset of the marriage, Nitva was living in his wife’s house, she was providing the funding to maintain the domestic household including but not limited to repaying her parental loan, clothing, food and utility bills, and by the third year of the marriage his wife was supporting her family of her first marriage and in most instances paying their son’s tuition and medical insurance. Furthermore, on alternate Shabbatot, Nitva’s four children from his first marriage, ages 7, 9, 11 and 13 were guests in Tova’at’s home.",
"Despite the fact that her husband’s earned income was expended for the most part for his own personal needs rather than maintaining the domestic household and that Nitva allegedly reneged on his oral promise to Tova’at to pay her portion of the commission totaling $37,500 as well as $25,000 from the initial investment in a residential home that she sold (totaling $62,500), Tova’at remained in the marriage. Moreover, in certain years Nitva failed to pay tuition for his son and his wife’s two children and to this very day, Nitva only pays basic child support for his child as mandated by the civil court and fails to pay for 36% of his tuition and the child’s medical insurance as mandated by the civil court, yet for the sake of her children she still wanted the marriage to succeed and therefore acceded to his every request. At the beginning of the marriage she was employed by an insurance agency where she worked 40 hours a week. Subsequently, in 2002 Tova’at became financially independent by starting an insurance agency which was open six days a week, supported herself, her two sons from the first marriage and their son, and paid a significant portion of the tuition. Yet, due to Nitva’s unwillingness to defray expenses by transferring his salary to “the domestic purse,” Tova’at had to borrow approximately $95,000.00 over a fourteen year period from her parents to defray her family expenses. (As of early 2015, she had repaid her parents a portion of her loan. As of that date, there still remains an outstanding loan balance. In other words, approximately eleven years later after marital separation, Tova’at still has not completely repaid the loan!)",
"As noted above by the woman who working in their home in early 2004, Tova’at still was unsure how to handle her marital situation, and she therefore again enlisted the services of a health care professional. From April 2004 until the time of marital separation, Tova’at attended marital counseling sessions given by a therapist for the express purpose of trying to determine who was responsible for the marital tensions. Again, Nitva participated in four sessions and then refused to continue to participate in any subsequent hearings. Having met Nitva a few times, one health care professional’s impression (to be distinguished from a professional diagnosis) was that in his words “he was not a mentsch and a hateful individual” and that if you wronged him then in Nitva’s eyes you are “sentenced to death.” As such, the psychologist argues, one can understand how such a personality would be recalcitrant regarding the giving of a get. And we can understand why a pregnant Tova’at ended up having to shlep heavy items from the attic of her first home to her second home which was down the block. Even if the couple had consulted him three years earlier, the psychologist concludes he would have been unable to save the marriage.",
"Nonetheless, still desiring to keep the marriage and the family together, Tova’at attended dozens of sessions hoping to find “a light at the end of the tunnel.” By the end of 2004, Tova’at realized there were no prospects for marital reconciliation and therefore requested of her husband to give her a get. Subsequent to the marital separation in January 2005, on August 9, 2007, the Family Court handed down an order of protection against the Nitva mandating that he “refrain from assault, . . . harassment . . . threats of any criminal offense against” Tova’at and her two children.",
"In reply to the question posed by the beit din panel to Tova’at, “If your husband would have acted properly to your children and supported you, would you have remained in the marriage?” Tova’at’s reply was: “Given his conduct in the bedroom as well as his personality, I would have left him within two or three months into the marriage. Given his misrepresentation regarding how he would treat my children only showed his lack of trustworthiness, his unwillingness to support my family, his inappropriate behavior in the bedroom and his personality propelled me to get divorced” (Tova’at’s approximate words). In fact, despite the fact that she already was pregnant with their child she told us that she would have left the marriage after two to three months. However, trying to save the marriage for her children who already had suffered from the behavior of their unfit natural father as well as hoping that there would be a possibility that Nitva would change were the reasons she stayed with the marriage for a few years. As a woman of forbearance, Tova’at attempted to keep her marriage together for the sake of her children, even with the attendant humiliating and abusive costs.",
"We asked one of the health care professionals the following question: “If this couple would have undergone marital therapy at the outset of the marriage, would there have been prospects to save the marriage?” Without any hesitation, his response was – “this marriage could never have been saved.”",
"At the end of the day, the picture that was portrayed to us by family members, friends either of Tova’at and/or the couple and third parties, men and women (young and old) alike is that Nitva, though outwardly in the public eye was perceived either as charming, kind and considerate, “a harmless easygoing guy” and sometimes prone to “blowing up” if you disagreed with him, regretfully, in his marital and familial ties he was controlling, domineering, manipulative, emotionally abusive and subject to fits of anger.",
"Discussion",
"A wife’s umdana (assessment of expectations) after the onset of marriage",
"In contradistinction to kiddushei ta’ut which focuses upon an event prior to the marriage, namely the existence of preexisting grave flaw in the husband’s physiology or behavior which if failed to be disclosed may under certain conditions be grounds to void a marriage (bittul kiddushin), umdana deals with an event (or events) which transpires after the inception of marriage. For example, “had I known that my husband would have become a mumar (an apostate Jew), become a criminal or would have become mentally dysfunctional during our years of marriage I never would have married him” may serve as illustrations of a wife invoking an umdana demukhah, a major inference from assessed expectations (hereafter: umdana) which if proven may serve grounds to void a marriage without the giving of a get.",
"Seemingly, the employment of an umdana here is open to challenge. As we know, for an umdana to be effective is dependent upon both parties. For example, a sales transaction involves the agreement of parties, the seller and the buyer: “taluy be-da’at shenehem.”",
"The voiding of the sale with the appearance of a defect subsequent to purchase would be predicated upon two conditions:",
"1. The buyer would have not consummated the deal if he had realized that the item sold would be defective within a reasonable time. As Shulhan Arukh Hoshen Mishpat 232:3 states:",
"If one sells another land, a slave, a domesticated animal, or other moveable property, and a defect, which the buyer did not know if, it is found in the purchase, the buyer may return it (to the seller and receive his money back – AYW) even if a number of years (have elapsed since the transaction – AYW), since this transaction was based upon fundamental error, provided that the buyer did not continue to use the item after he became aware of the defect. If, however, the buyer continued to use the item after he saw (or became aware of – AYW) the flaw, he has (by his behavior – AYW) renounced (his right of rescission) and cannot return (the defective item and receive his money back – AYW).",
"2. The seller would negotiate the sale contingent upon the utility of the item being sold.",
"In other words, the voiding of the sales transaction is dependent upon the existence of both the seller’s and buyer’s implied conditions.",
"The requirement of “taluy be-da’at shenehem” as a precondition prior to the invoking of an umdana equally applies to marriage which is based upon the consent of both a man and a woman.",
"For example, if a husband is engaged in criminal activity while married, the fact that a wife would exclaim, “had I known he would become a criminal, I never would have married him” would seem to offer no basis for voiding the marriage, since a similar statement must have either been articulated by the husband or be presumed on the husband’s behalf. The husband’s declaration would be – “If I become a criminal after the onset of the marriage, my marriage is invalid.” In fact, the husband may not want to void the marriage in order to avoid his sexual intercourse being viewed as be’ilat zenut, an act of fornication. However, in contradistinction to the above view, adopting the views of Rabbis Mordekhai Hillel, Zvi Ashkenazi, Shmuel Landau, Hayyim Halberstam, Zvi Shapiro, Moshe Zweig, Moshe Feinstein, Ezra Batzri and others, in cases of a major umdana or what has been labeled as an umdana demukhah (hereafter: umdana) a major inference from assessed expectations expressed by one person suffices in order to void a commercial transaction and according to certain Poskim a marriage or a halitzah may be equally voided.",
"This umdana which is known in Talmud Bava Kama 110b as “ada’ata dehakhi lo kidshah nafshah” (on this understanding she did not betroth him”) is to be understood as an implicit condition to the marriage. In other words, in our case, as we will demonstrate given that the husband has failed to support his wife and in certain instances failed to maintain their son, engaged in spousal rape, physically and emotionally abused his wife, emotionally abused his stepchildren and remarried without giving his first wife a get is undermining tenai’im, conditions to the marriage and therefore we may invoke the umdana “ada’ata dehakhi lo kidshah nafshah.”",
"How does Halakhah view Nitva’s acts of spousal rape as well as his engagement in unnatural intercourse which in certain instances resulted in pain to his wife? There is a duty upon a husband to have conjugal relations with his wife. Whereas according to some authorities the obligation is derived from the Biblical word in Shemot 21:10 “she’erah . . . he shall not diminish” or “ve’onatah he shall not diminish,” others derive the duty by logical inference. Elaborating upon this position, expounds Rabbi Naftali T. Berlin:",
"Reason informs us that (the husband) is so bound . . . as everyone knows, for this purpose that a bride enters into marriage. . . . Hence if he denies her sexual ties, she is deprived of her right.",
"In other words, Halakhah recognizes the wife’s right to conjugal relations and therefore the husband has a duty to provide it to her. In fact, for Rashba, a couple is mutually obligated one to another as result of the establishment of the marriage.",
"Others such as Rabbi Avraham Min Hahar and Rabbi Berlin emphasize that the husband has a kinyan vis-à-vis his wife but only as regard to sexual relations. However, although the husband’s kinyan exists and she has a duty to engage in conjugal relations, her husband may not ravish her.",
"As Rabbi Yosef of Trani notes, “Certainly she is not subject to him incessantly when she does not desire it.” Almost two hundred years ago, there was a case reported to a beit din of R. Refael ibn Shimon in Egypt where the husband had relations with his wife incessantly during one night, leaving her tired and sleepless, and the holding of the beit din was that the wife was not deemed a moredet (a rebellious wife who refuses to engage in intercourse with her husband) and she was validated for her refusal to have intercourse in part based upon the earlier ruling of Rabbi Trani. An improper performance of the duty of onah such as engaging in nonconsensual marital relations engenders emotional and psychological pain for the wife.",
"A wife may cease and desist from having relations with a husband who advances excessive demands regarding conjugal relations and she will not be deemed a moredet who under certain conditions may be divorced by her husband.",
"Moreover, implicitly relying upon the Talmudic dicta, Rambam, Ra’avad, and Rabbi Yosef Karo rule that a husband may only have intercourse with the wife’s consent. In an earlier ruling in the Shulhan Arukh, Rabbi Karo states that if a husband is angry with her, intercourse is prohibited until she is persuaded. In the words of Rambam, intercourse ought to be initiated “based upon conversation and joy”.",
"Unnatural intercourse (known in halakhic sources as “overturning the table”) is permissible provided the husband has his wife’s consent.",
"Our presentation can be best summed up in the words found in Iggeret ha-Kodesh whose authorship is attributed to Ramban:",
"When a man has relations (with his spouse) he should not do so against her will and he should not rape her; the Divine Presence does not reside in such unions . . . he should persuade her with kind and enticing words and other proper and appeasing things. . . . Rather he should awaken her and arouse her with alluring words and desire as we said. In short: Before having intercourse, when a man is aroused he should make sure that his wife is enticed as well. In effect, your wife’s mindset should correspond to yours.",
"Finally, the halakhic limitation of the freedom of contract – “contracting out of a Halakhah found in the Torah” underscores the centrality of onah for the matrimonial relationship. A husband is proscribed from preparing a prenuptial agreement which releases himself from his duty to perform conjugal relations due to the fact that such abstention from relations engenders “tza’ar,” pain for his wife and/or is understood as entailing “the ikar ha-nissuin”, the essence of marriage. Notwithstanding the view of Talmud Yerushalmi and a few decisors, adopting the Talmud Bavli’s position, the majority of Poskim invalidate such a condition due to the fact that it is “matneh al mah sha-katuv ba-Torah,” it is a stipulation in variance to the Torah. As the Talmud notes “everyone knows why a bride enters the hupah, the bridal canopy” or as Tosafot observes, “matters which we marry for.”",
"In short, the performance of “onah” is one of the foundations of a halakhic marriage and consequently a husband cannot decide to unilaterally opt out of it.",
"Given that today, at least in the Golah, the Diaspora, we legally and therefore halakhically aren’t empowered to coerce a get, some Poskim argue that one must seek whether the conditions are ripe that enable a Posek to void a marriage based upon umdana in a situation where a get cannot be coerced.",
"Consequently, the threshold question is whether engaging in spousal rape serves as grounds to coerce a get. This matter may be examined through the halakhic prism of a wife’s plea of “ma’is ali” (“he is repulsive to me”) and I therefore cannot have intimate relations with him. Assuming a wife submits such a plea to a beit din accompanied by “an amatla mevureret”, a clear pretext that in fact she is repulsed by her husband without having an interest in another man and waiving her right to the value of her ketubah, there are Poskim who will coerce the husband to give a get. Based upon the facts presented to us, in effect Tova’at is submitting a plea of “ma’is ali” with “an amatla mevureret” without having any interest in another man and waiving her right to the value of her ketubah. In pursuance to the aforesaid authorities get coercion would be permissible. As such, given the inability to coerce a get where the couple resides, given Nitva’s engagement in spousal rape we may invoke the umdana, namely “ada’ata dehakhi lo kidshah nafshah”.",
"As Rabbi Moshe Rozin, a twentieth century posek of Lithuania and subsequently of New York notes a husband’s unwillingness to fulfil the mitzvah of onah is to be equated to an individual who conditions his marriage that it be devoid of engagement in conjugal relations in a proper fashion as mandated by Halakhah. Such a tenai, condition in Rabbi Rozin’s mind is voided due to the deploying of the umdana of “ada’ata dehakhi lo kidshah nafshah” and therefore serves as as a rationale to void a marriage.",
"Is there a basis for invoking umdana in a situation where Nitva fails to support Tova’at as well as their son, in various instances?",
"In fact, in a lengthy teshuvah we find Rabbi Moshe Rozin who invokes this umdana in the context of husband who was not prepared to support his wife. He focuses upon a halitzah situation employing the instrument of umdana to release the wife from her need to perform halitzah. The case concerned a Jewish man and woman who married, and a few days after the marriage the husband committed suicide by poisoning himself. Given the fact that the wife was childless and thus dutybound to marry her brother-in-law, halitzah was to be performed to enable her to remarry, but her brother-in-law’s whereabouts were unknown and the wife became an agunah being either unable to marry him or being able to participate in halitzah which would allow her to be free to marry somebody else. Given the fact that the circumstances indicate that this was a planned suicide, contends Rabbi Rozin that it is clear that the newly married husband never had intentions to comply with his marital duties, including but not limited to mezonot, providing food and clothing (as well as performing the mitzvah of onah, intercourse properly)to his newly married wife.",
"Rabbi Rozin claims that generally speaking a husband who conditions his marriage upon exempting himself from fulfilling his duty of providing spousal maintenance, clothing such a condition is null and void and the marriage is valid. Yet, in this scenario, given that his intent was to commit suicide he never intended to obligate himself with any marital duties, therefore the marriage is null and void.",
"Generally speaking, in all financial matters, two Jews, including a prospective marital Jewish couple and a Jewish husband and Jewish wife are permitted to determine their own business relationship or marital ties respectively. In effect, in Rabbi Rozin’s scenario the prospective husband is stipulating that the duty of support is inapplicable or the above rule is to be understood that a prospective wife or a wife may choose to waive him of his obligation to spousal maintenance. However, in our case at hand, prior to the marriage and during the marriage Bryna never agreed to waive her right to mezonot nor did he stipulate that the duty of support is inapplicable to him. Given that in Rabbi Rozin’s scenario the husband planned his demise, it was similar to a prospective husband who conditions his marriage upon being exempt from complying with his marital duties. As Rabbi Moshe Sofer observes:",
"Since he married her it was on the understanding that there would be support. And if there was no maintenance there is neither ishut (personal status) nor marriage.",
"Just as we found earlier that Rabbi Rozin employs the umdana regarding a wife’s unwillingness to be raped by her husband, similiarly he advances the same rationale for a wife’s refusal to enter a marriage on the condition (notwithstanding an explicit stipulation) that she would be deprived of her mezonot, support.",
"Analogously, in our case, though Nitva promised during their courting days to be economically supportive of his new family, he never really intended to follow through on his commitment. Moreover, his track record regarding fulfilling this marital duty serves as testimony to his deception. As communicated to us by one of his friends, one of the reasons for his divorce from his first wife was because he was incapable of being a breadwinner for his family. More importantly, Nitva failed to fulfill his marital duties to support his second wife, the Tova’at as well at times their son. Therefore, based upon the umdana, ada’ata dehakhi lo kidshah nafshah, Tova’at never would have married him had she known that she would be supporting him, her family as well as their son! Furthermore, it was as if he conditioned his entry into marriage (without his wife’s consent) to be exempt from his marital duty of support and proper conjugal relations which are a tenaiim, conditions to every marriage. Consequently, one can invoke ada’ata dehakhi lo kidshah nafshah.",
"On one hand, the marriage was civilly annulled in 2007 and therefore spousal support duty ceased.However, on the other hand, due to the fact that he has refused to give a get, he may remain halakhically dutybound to this very day to provide her with mezonot, spousal support even though they have separated. She has the status of “a me’ukevet le-he’nasei,” namely she is incapable to remarry without the giving of a get and therefore she is entitled to mezonot. Therefore, we invoke the umdana, ada’ata dehakhi lo kidshah nafshah – Tova’at never would have married him had she known that she would be supporting herself, her family as well as their son even after their separation in January 2004 and after his decision to remarry without giving a get! Tova’at married him on the condition that he would provide spousal and family support. In fact, argues Maharit that coercing a get is due to a husband’s breach of a condition of marriage, namely to provide support. And Maharit equates a husband who fails to support his wife to a husband who, after marriage, acquires mumim, defects which were not a condition to the marriage.",
"As we know, in a case of an impoverished husband who cannot provide material support, a husband of economic means who refuses to maintain his wife, and a husband who is imprisoned and cannot provide financial support, a beit din is authorized to coerce him to give a get.",
"The umdana of ada’ata dehakhi lo kidshah nafshah “contemplates” that the wife expects that she will be able to exit the marriage if her spouse acts improperly by failing to provide for her as well as full support for their son.",
"The deployment of the umdana, ada’ata dehakhi lo kidshah nafshah in our case is not limited to Nitva’s refusal to provide support and engaging in spousal rape which entail fundamental violations of the foundations of a halakhic marriage and extends itself to his lack of respect for the Tova’at, his wife. Our foregoing presentation of the facts conveys to this panel Nitva’s lack of respect for his spouse. The halakhic imperatives of kavod ha’beriyot in general and kavod ha’ishah in particular are well known and well documented and do not require any further elaboration here. Suffice is to say that Nitva’s cursing and screaming were inappropriate. Notwithstanding that Rabbi Babad argues that cursing without using one of Hashem’s name does not entail an issur, a prohibition, the students of Rabbeinu Yonah contend that there is a prohibition. What we have here is a continuing violation of the rabbinic directive, “that a man ought to respect his wife more than himself and love her like himself . . . and he should not instill excessive fear and his speaking should be calm rather than be sad or angry.”",
"As the Talmud teaches us, a wife was given to a husband “for life and not for pain.” In our case, this marriage was marked by pain. Though the initiation of the marriage was consensual and thus affirmed the persona and integrity of both parties in establishing this matrimonial tie, regretfully, that affirmation of the self and respect of the individual began to dissipate immediately after the onset of the marriage. Nitva treated Tova’at in and out of the bedroom as an object rather than as a person. As one witness said – “Tova’at was a slave” and Tova’at was in fear of him. Despite the “toxic domestic atmosphere” in the marital home which encompassed being disrespectful to the Tova’at, every alternate Shabbat, Tova’at was considerate enough to have Nitva’s four young children as guests in her own home, a domestic household which was being bankrolled by her rather than her husband!",
"Based upon the foregoing, there would be a basis to coerce a get due to the acts of disrespect that he exhibited towards Tova’at. In short, given that Nitva had been forewarned by Tova’at to cease from his cursing, he is “oveir al dat Yehudit,” transgressing the Jewish religion. And if the spouse engages in cursing on a regular basis, some contend that there is no need for a warning.",
"Since get coercion is a halakhic option, albeit unavailable today outside of Eretz Yisrael, given that Bryna lives in the United States there are grounds to invoke the umdana, ada’ata dehakhi lo kidshah nafshah due to his engagement in nonconsensual marital sex, acts of disrespect and failing to support his family.",
"Moreover, having to experience pain as a result of being a victim of spousal rape violates the Talmudic teaching that a wife was given to a husband “for life and not for pain.” Such an experience is memorialized in Halakhah. Notwithstanding the view of Tosafot that payment of tza’ar, pain is only for the pain experienced by the injured party at the time of the commission of the act, others contend that continuing pain is also compensated. Consequently, should pain ensue from a coerced cohabitation, albeit more frequently the result of engaging in unnatural intercourse and last for a few days, a husband would be liable for tza’ar.",
"Being a victim of spousal rape in and of itself entails an infraction of habalah, battery. Having to undergo unnatural intercourse entails pain. Having to be ravished by one’s spouse and then undergo pain from that encounter is unconscionable. To rape one’s wife who is supporting you and allowing him to live in her house gratis is beyond belief. To fail to cease and desist from such conduct after a wife entreats her husband to stop is unconscionable. Under such conditions, Tova’at is an object being exploited rather than a human being being respected.",
"As Rabbi Karo and Rabbi Shlomo Luria rule, a husband is liable for any injuries caused during consensual intercourse, a fortiori should he force her to have relations against her will he has committed “habalah”, battery, and is liable for damages. (Even in the absence of battery, as we mentioned earlier in our psak din one is prohibited from raping one’s wife. )",
"Consequently, whether one would coerce a get in our case of spousal rape which entailed battery may be derived from how Poskim ruled regarding coercing a get in the case of a battered wife. Notwithstanding that many Poskim reject get coercion in the situation of a battered wife, there are others who under certain conditions will issue a compulsion order.",
"Furthermore, as we mentioned, Nitva was engaged in emotional abuse such as his treatment of his stepsons during their family trips, his cursing and screaming at them (as well as his wife), throwing one stepchild out of the home and forwarding an extremely inappropriate news release about his stepchildren to a national Jewish newspaper. In accordance with Mishnah, Talmudim and Poskim one may coerce a get when a husband emotionally abuses his wife.",
"Noting the impropriety of emotional abuse of a spouse, Gaon of Vilna opines:",
"Even other matters that do not engender that much pain such as a husband who takes a neder, a vow that his wife should refrain from going to her father’s home or to a house of mourning . . . a fortiori if he pains her physically.",
"In other words, implicitly following earlier authorities, the Gaon is deriving the Halakhah of get coercion in the matter of spousal physical abuse from the Halakhah of get coercion in the case of spousal emotional abuse. Seemingly, Gaon’s position is problematic due to the fact that Ramban’s conclusion, regarding both types of abuse, is that one can only obligate a get. However, it is clear from Darkhei Moshe and Rema as well as the Gaon that these matters require get coercion. In fact, others concur with their understanding of these Poskim.",
"If Tova’at had been residing in Eretz Yisrael where get coercion is an option upon a husband withholding support, physically and emotionally abusing his spouse, engaging in spousal rape and marrying another woman without giving a get, albeit employed on a limited basis, her marriage may be dissolved by get coercion. And as we earlier mentioned in pursuance to certain Poskim, in light of the option of get coercion, Tova’at may have been unable to invoke the umdana. However, today outside of Eretz Yisrael, where Tova’at resides, there is no beit din which is legally and thus halakhically empowered to coerce a husband to give a get. Consequently, in the absence of the ability to coerce Nitva to give a get, based upon the submitted facts we may employ the umdana regarding Nitva’s acts of spousal rape accompanied by acts of habalah. Here again, the umdana, ada’ata dehakhi lo kidshah nafshah is invoked due to a breach of a tenai in the marriage engaging in physical as well as verbal and emotional abuse.",
"The import and significance of applying the different types of umdana is underscored by the event that occurred after the marital separation and underscores a different type of umdana. At the beginning of 2014, Nitva received permission to remarry without giving a get to the Tova’at from a beit din which is located in Monsey, New York. In our files, we have letters as well as a letter authored by 20 dayanim and rabbis who reside in Yerushalayim, Eretz Yisrael as well as in Monsey, New York, who do not recognize the gittin in general and the “heter nissuin,” permission to remarry, in particular, of this beit din. In March 2014, one of the rabbis who was affiliated with this beit din officiated at the wedding of Nitva to another woman, even though he was still married to Tova’at due to the fact that he never gave her a get.",
"In light of Nitva’s second marriage, he is violating the Herem (excommunication) of Rabbeinu Gershom of marrying a second woman while still remaining married to one’s first wife. Nimmukei Yosef rules:",
"And Ritva in the name of his rabbi who said in the name of his rabbis that in a place where the practice is to refrain from marrying more than woman, then it is improper to marry another woman while still being married to one’s wife. It is an umdana de’mukhah that she married him contingent on the fact that he would not marry anyone else. . . . As Tosafot wrote that Rabbeinu Gershom excommunicated a person who married more than one wife and we are obligated to coerce the two of them to divorce from each other.",
"To state it differently, as noted by other Rishonim and Aharonim there exists an umdana that no woman would marry a man knowing that the man would remarry without giving a get to his wife. Unlike the other umdanot such as a woman would neither marry a man who would rape her or fail to support her which is an expectation which is specific to the case (i.e. the umdana emerges due to the husband’s inappropriate behavior during the marriage) this umdana (i.e. no woman would marry a man knowing that the man would remarry without giving a get to his first wife) is an expectation of all women and is foundational to the creation of the marriage and emerges after the couple has separated and there exists no prospects for marital reconciliation.",
"Though there is no mesorah that permits the invoking of this umdana as an avenue to void a marriage, nonetheless, we do have a precedent for deploying a similar umdana as a means to void a marriage. Another example of such an umdana which emerges after marital separation and is foundational to the establishment of the marriage is the umdana that a woman would never marry a man who would refuse to give her a get should circumstances dictate that their marriage be dissolved. There are authorities who will void a marriage based upon the invoking of this umdana. Both umdanot may serve as a senif, a supporting argument rather than as an independent ground to void a marriage.",
"It is an implied condition to the marriage that no woman would marry a man who would decide to marry a second woman without giving a get to his wife. Today, where the entire Jewish community as well as Western society view bigamy as prohibited conduct, common sense dictates that no woman would consent to marry a man on the condition that he is allowed to marry a second woman during the time that he remains married to his wife. Furthermore, engaging in a bigamous relationship is halakhically deemed by Teshuvot Tumat Yesharim 84 as an act of emotional abuse. Finally, in a case where the husband married a second woman without giving a get to his wife, one must coerce them both to become divorced. The inference from his language is that the coercion is not based upon a wife’s claim to become divorced but coercion is linked to the need to comply with mitzvot. Therefore, as Nimmukei Yosef writes, even if the husband and wife of the second marriage are prepared to live together (because the marriage after the fact is valid), nevertheless a beit din has a mandate to dissolve either one of the marriages by coercing a get to comply with the performance of the mitzvah of giving a get.",
"Even if it emerges that there were no grounds to issue a heter nissuin as there was in our situation, Rabbi Shlomo Luria and others already rule that a husband continues to transgress the Herem (the social sanction against bigamy) daily even if he is acting be’shogeg (unintentional sin) or due to ones (duress).",
"Moreover, notwithstanding Nitva’s daily transgression of the Herem of R. Gershom, the situation of igun which dates back over eleven years militates that a get be coerced for his wife. As Rabbi Eliyahu ben Binyamin ha-Levi claims in the most unequivocal terms:",
"When the husband is not with the wife at all, one does not require the Mishnah of “kofin” (which enumerates the list of cases where we can coerce a husband to give a get – AYW). Our Torah scholars did not say that a woman should stand (live – AYW) without food, clothing and conjugal relations. . . .",
"To state it differently, there was no reason for our scholars of Mishnah and Talmud to specify that a husband can be coerced to give a get to an agunah who lives separate from her husband who neither furnishes proper intimate relations nor material support. Sevara, halakhic logic, dictates that under such circumstances get coercion is proper. Addressing the case of husband who leaves his wife, refuses to comply with his marital duties, refuses to give a get, marries another woman and refuses to comply with his wife’s plea for a get, such circumstances dictate that the creation of igun, a wife being anchored to a marriage mandates the coercing of a get! In the absence of being able to employ get coercion, we are following a mesorah that we may invoke the umdana under assuming certain conditions are obtained.",
"And in fact, the above description conveyed by Rabbi Eliyahu reflects the plight of the Tova’at.",
"Seemingly, the lapse of time from the onset of the marriage until the Tova’at’s decision to separate from the Nitva ought to undermine employing the umdana of “ada’ata dehakhi lo kidshah nafshah.” Based upon the cumulative evidence submitted to this panel, the marriage was consummated in the summer of 2000 and she requested a get during Chanukah 2004. Clearly, Nitva’s acts of spousal rape, spousal disrespect, and his lack of spousal support occurred early on in the marriage and she should have requested a get by late 2000 or the beginning of 2001. However, our rendition of the facts of the case clearly indicates that given that she was a divorcee with three children, she desired to “make this marriage work.” As she communicated to us in the final session, despite the fact that she was a victim of spousal rape, emotionally abused and in the eyes of one observer “she was fearful of him,” she set aside her personal reservations and concerns in order to attempt to promote “shalom bayit” to the fullest extent of the words, peace and tranquility in her bedroom, for her entire family, newly born son and three children from her previous marriage. As such, she enlisted the guidance of her family rabbi on three different occasions, the counsel of four therapists which lasted until she requested her get and sought the advice of family members and friends. As we earlier mentioned, the reply to the boarder in early 2004, almost four years into the marriage says it all – The woman who worked a brief time in the marital home asked the Tova’at, “why are you staying in the marriage?” Her reply was “she was worried about the situation but she didn’t know what to do” (her approximate words). In other words, despite the fact that “the writing was on the wall” dating back a few years regarding his treatment of the Tova’at and her children, Tova’at was a driven person who had already been divorced once due to an “unfit husband” and wanted to try every avenue to save this marriage for herself as well as for her kids. We asked one therapist the following question: “If the couple would have seen you earlier, could the marriage have been saved?” The informed and educated reply from a well-seasoned psychologist was – “It would not have made one iota of a difference. This marriage could never work.” After reading the facts of this case, someone may say that that this marriage was doomed from its inception and therefore how could she have stayed with the marriage? Firstly, as Pirkei Avot states, “Do not judge your friend until you reach his place.” Secondly, it is very possible that some women would have opted out of such a marriage much earlier and in fact two women who appeared in front of us submitted such a claim, but as a beit din we are dealing with the Tova’at, her personality and her expectations and aspirations, and it is crucial to rule in light of her situation. Her tolerance and drive “to see the good in every person” and hope to improve a bad situation drove her to remain in her first marriage for 16 years despite the highly inappropriate activity of her husband. The same attitude and disposition transpired in attempting to address her concerns regarding her second husband. As such, the facts of the case indicate that there are reasonable explanations why she remained in the marriage for an extended period of time hoping to salvage it. Once there was no hope in her mind to save it, she requested a get.",
"Seemingly, by Bryna’s own admission that she became aware of her husband’s conduct within three and half months from the time of the onset of the marriage and her decision to remain living with him under these circumstances for three and half years conveys to this panel that she was mohail, waived “the situation” and consequently there ought to be no grounds to void the marriage.",
"Drawing such a conclusion is open to halakhic challenge. As we noted earlier, this umdana of marriage of “ada’ata dehakhi lo kidshah nafshah” is to be understood as an implicit condition to the marriage. In other words, in our case, given that the husband here failed to support his wife, engaged in spousal rape, abused his stepsons and was engaging in polygamy he is an undermining tenaim, conditions to the marriage and therefore we may invoke the umdana “ada’ata dehakhi lo kidshah nafshah”.",
"As elucidated by Rabbi Ariel Holland of our beit din panel, Shulhan Arukh states that if a man betroths his prospective wife on the condition that she has no defects and after the kiddushin (loosely translated: the marriage) defects appear, the couple is married provided that the defects have been cured. In the event that the defects are incurable, the inference to be drawn is that the marriage is void. Relying upon this ruling, Tzvi Tiferet opines that the same conclusion ought to apply when a woman advances such a tenai regarding her prospective husband prior to the marriage. This approach was subscribed to by Rabbi Dovid Friedman. Moreover, as noted by Rabbi Holland, claims Rabbi Yehezkal Landau, in a line of argumentation endorsed subsequently by his son, that if one engages in a conditional marriage and then consummates the marriage via intercourse, the tenai is waived provided that the person does not incur a loss by waiving the tenai. However, if the result would be that the person incurred a loss then the tenai is operative and the marriage is voided. In sum, once there was a tenai, and in our case it was an implied condition, there is no presumption of mehilah when a loss has been incurred by the act of marriage.",
"However, should we traverse from the world of issurim (prohibitions) to the world of Hoshen Mishpat (commercial matters) and apply the halakhot of sales to a defective item, in accordance with some authorities we would arrive at a different conclusion. If somebody purchases an item that has a defect and he used the item after discovering the defect, then we view the situation as a case of mehilah and he cannot rescind the transaction.",
"Nonetheless, if a transaction materialized and there was a reason to void it, such as the presence of a defect and the buyer doesn’t care that there is a defect, and the reason for his lack of concern is because he wants the sale to happen even under these conditions for another reason, the sale is rescinded. Similarly, Rabbi Navon and others contend that if a man marries a woman and he discovers a defect and he nevertheless is appeased by the monies that he received for becoming married to her, the marriage is not recognized due to the fact that his motivation for the marriage was for pecuniary satisfaction.",
"It is understandable that the Talmud Bava Kama 110b which invokes the umdana as well as its subsequent application by various Poskim does not mandate that this umdana be employed immediately after the establishment of the act of marriage. As we explained, a lapse of time does not mean necessarily that the wife waived her insistence to the continuing operation of an implied condition (or conditions) to her marriage.",
"Based upon the foregoing, there were various implied conditions in the couple’s marriage. Given that the conditions were violated by the husband’s behavior, Bryna never waived these conditions. Rather, as the evidence has demonstrated, she tried to save her marriage. Once there was no hope in her mind to save it, she requested a get.",
"As such there are reasonable explanations why she did not separate from the Nitva immediately upon encountering his inappropriate behavior. Though in accordance with certain Poskim, upon discovery of a major latent defect one must bolt the marriage immediately or refrain from remaining in the marriage for an extended period of time, nonetheless, in pursuance to Rabbi Moshe Feinstein and others who argue that she may continue to live with him provided she offers a reasonable explanation.",
"Let’s cite an excerpt from Dayan Tzion Boaron’s ruling. Dealing with a husband who was mentally dysfunctional, Rabbi Boaron describes the wife’s mindset prior to discovering that her spouse had a mental disorder in the following manner:",
"And one should not conclude that since she lived with him for seven years and gave birth to two children, she observed the defect and forgave him (“mehilah”). That is not the case. When dealing with such matters a person cannot understand the nature of the disease until much time has elapsed since sometimes due to her love for him she rationalizes his anger and temper and his agitated condition as being transient and she longs and hopes that the situation will improve. In particular, a person who takes medication regularly, there are times when he is content and silent. . . . One cannot say one observes and one is appeased as written in Maharsham . . . when he was asked about a couple who lived together for over 14 years. Since episodes of mental dysfunctionality occur from time to time and a man hopes to be cured and therefore . . . one cannot speak of seeing and being appeased.",
"Consequently, in light of the aforesaid mesorah of Rabbis Feinstein and Boaron one may impart credence to the Tova’at’s decision to remain in the marriage for three and a half years.",
"Based upon the cumulative evidence submitted to this beit din, notwithstanding contrary views which reject the deployment of an umdana as a means to void a marriage, following a mesorah which we alluded to at the beginning of our discussion, we find that our analysis of the umdana, ada’ata dehakhi lo kidshah nafshah which may be invoked regarding spousal disrespect, spousal abuse, non-support and remarriage without giving his wife a get serve the grounds for freeing the Tova’at from her marriage without the giving of a get.",
"Finally, notwithstanding those authorities who reject igun as an ilat gerushin (a ground for divorce) for even obligating a get much less a basis for get coercion there are other Poskim who endorse the view that igun may serve as grounds for sanctioning get coercion.",
"Given that his prolonged separation from Bryna, remarriage without giving Bryna a get, and his noncompliance with his marital duties of engaging in conjugal relations in a proper manner and furnishing spousal support creates an igun situation and therefore serve as grounds to coerce a get and in wake of the inability to coerce a get today in the United States, we may invoke the umdana of “ada’ata dehakhi lo kidshah nafshah.”",
"Based upon the foregoing presentation, Bryna Stern is free to remarry without a get any Jew except a Kohen.",
"This psak din was approved by a renowned rabbinic authority."
],
"f) A husband who engages in pedophilia with his two stepdaughters": [
"A husband who engages in pedophilia with his two stepdaughters",
"Facts of the Case",
"On October 15th, 2009, Levi married Hindy in accordance with Halakhah. This marriage was a second marriage for both of them. During Hindy’s first marriage she gave birth to five children. At the time of her second marriage, her children were the following ages: Miriam was fourteen years old, Yankel was 12 years old, Ahuvah was 11 years old, Ayalah was nine years old and Sarah was seven years old. Once married, Levi moved into Hindy’s home. Throughout their marriage, despite the fact that he remained married to her, she paid the mortgage, utilities, paid most of the tuition and shared in financing family vacations. His contribution to the maintenance of the household was to pay for weekly groceries and provided her with attire for Yom Tov. In April 2012, Hindy separated from him. Subsequent to the separation, she requested Levi to give her a get and he refused. In the spring of 2013, Hindy opened up a file at a French beit din and the beit din summoned him to appear in front of them regarding the matter of the get but he was mesarev le’din, recalcitrant to appear for a beit din hearing and a few months ago, the Beit Din issued a ktav seruv, a writ of contempt against Levi and directed the members of the community to isolate themselves from him. A communication was sent by a French beit din to a rabbi in Germany and the synagogue where Levi was in attendance expelled him from praying at their beit knesset, synagogue.",
"To date, Levi has refused to give a get to Hindy and is only willing to execute a get on the condition that Ahuvah and Sarah, his stepdaughters, would admit to the police that their allegations of being sexually abused by their stepfather were fabricated. With the submission of these admissions, legal counsel has advised Levi that the two criminal convictions for abuse will be rescinded by the court. In a written communication to our beit din, Levi argues that his stepdaughters were brainwashed to submit their testimony by Hindy, their mother who herself was duped by his ex-wife to fabricate these stories. Upon the request of Hindy, we summoned Levi to appear for a hearing regarding the matter of the get but he declined to attend. On June 22, 2016, we conducted a hearing with Hindy Silver.",
"Hindy began her presentation by briefly discussing her three years of dating Levi and then communicated to us some of “the ups and downs” in her marital relationship with Levi. Thereafter, she told us about the incidents which eventually led to their marital separation and her eventual realization that Levi was a pedophile. In the summer of 2011, Hindy received a call from social services that they wanted to meet with Levi and her. At the meeting, the social worker informed them that there were allegations by Levi’s natural daughter that she was abused by him but that the allegations were withdrawn by his daughter. In fact, Levi submitted to this beit din a copy of letter authored by Rabbi Y. M. Gruen in France wherein he states that in early April 2014, Levi’s daughter appeared at his door without appointment and stated that her allegations of sexual misconduct against her father were false. And, in fact, during the same month a criminal court exonerated him of these submitted claims.",
"Approximately a half year later, one evening Sarah walked into one of her daughters’ bedroom and found Levi sitting on her bed and the stepdaughter screamed at him. Asked by her mother what triggered such an outburst, Sarah’s response was, “I hate him. I really hate him. He always comes to my bed and pinches me.” Upon Hindy requesting of Levi to refrain from touching her children due to halakhic proscription and the petition of her children, Levi replied: “I’ll listen to the halachos I want to listen to. You can’t tell me what to do.”",
"Subsequently, in March 2012, Social Services met with Hindy’s children individually at their respective schools. Due to the conference with Sarah who communicated to Social Services that Levi touched her on her stomach, the police were notified and Hindy had a meeting with them. Though legal boundaries had not been crossed, the police didn’t find anything of significant concern, nonetheless, police directed Hindy to speak to Social Services again in order to set up guidelines in terms of Levi’s future interactions with his stepdaughters. By this time Hindy became vigilant and at least five times checked on Levi’s movements around the house and couldn’t sleep soundly due to the recent revelations of his behavior.",
"On April 21, 2012, Hindy’s two sisters spoke to Hindy regarding Levi’s behavior. Sara, Hindy’s younger sister told Hindy that one of her children, who was a victim of the abuse, confided in her that her stepfather had gotten into bed with her as well as her sister and touched their breasts, events which were witnessed by Miriam, the oldest daughter. Additionally, Hindy’s sisters told their sister that they recently convinced Dayan Cohen of the beit din that the children should be removed from the house immediately. After their conversations, Hindy and her sisters confronted Levi regarding his behavior. In their seven-minute conversation (which was recorded and submitted to the court as well as to our beit din as evidence), we overheard Chana, Hindy’s sister, telling Levi that due to his acts of pedophilia either he immediately must leave the house or Hindy and her children would leave the house. His response was that he loves his children as well as his wife and sees no reason to leave the marital home. And then he adds, “if there is any error, I am more than happy to correct anything that went wrong.” Chana’s reply was, “it’s too late – you have done it. The children are traumatized.” The following day after Levi left Hindy’s home, she changed the locks on the doors of her home. In retrospect, now Hindy understands why her husband used the small bathroom upstairs near the girls’ bedroom instead of the main bathroom which was just a few steps away from their bedroom. By using this facility, his stepdaughters were able to view their stepfather showering and shaving and he was frequently caught by his stepdaughters peeking into their bedroom. And sometimes the children had happened to see Levi naked while walking into the bathroom which was ajar or when his towel slipped off him. Subsequent to their separation, one of Hindy’s girlfriends told Hindy that Levi allegedly was only willing to remarry a woman who had daughters.",
"Subsequently, due to his stalking of Hindy, a restraining order was issued which prohibited him to be in close proximity to Hindy, and this order of protection will expire on September 3, 2017. Additionally, he breached a restraining order involving his son from his first marriage and consequently there is an arrest warrant out for him. Since that time, fearful of being imprisoned again, he left France and since 2015 has been leaving in another European country.",
"During the hearing, we spoke to one of the family’s health care professionals who told us that it is clear that the victims of abuse who receive counseling have been traumatized rather than feigning that they were victims, and the therapist stated that the court’s findings are correct. Secondly, both in oral testimony as well as in an affidavit, a rabbi in London told this panel that Levi admitted to him that he engaged in these acts of “inappropriate touching,” including one where one of Hindy’s sisters witnessed Levi touching one of his stepdaughters in the living room. Finally, though initially one member of a local beit din supported Levi’s position, the Rabbi informed us that eventually the dayan had a change of heart and threw his support behind Hindy’s claim for her get.",
"Given that Levi alleged that his stepdaughters were not traumatized due to being abused or witnessing the abuse and therefore his stepdaughters are attending sessions on a weekly basis “as a façade,” we requested of Hindy to submit to us copies of various therapy bills (memorialized on the therapist’s stationery) for her daughters’ therapy sessions. Based upon our information regarding Hindy’s financial situation as well as the health care professional’s testimony and other reasons, we cannot impart credence to Levi’s allegation that Hindy is willing to fund these sessions though they were allegedly only a façade.",
"Based upon the cumulative evidence submitted to this panel we affirm that in fact Levi acted inappropriately with Hindy’s daughters. Hindy separated from him on the grounds that he was not a role model for her children. In short, she claims “ma’is alai” (lit. he is repulsive to me – I do not want this man) and therefore I want my get.",
"Until today, he has refused to give a get. Following in the footsteps of a communication dated December 22, 2013, a French beit din deemed Mr. Levi as “a mesarev le-get,” as a husband who is get recalcitrant with all of its attendant consequences.",
"One of the consequences of being “a mesarev le-get” is to determine whether there are grounds to void their marriage, permitting Hindy to remarry without the giving of the get.",
"Discussion",
"1. The ma’is alai (he is repulsive to me) plea & kiddushei ta’ut (loosely translated:",
"a mistaken marriage)",
"The question is whether the wife’s plea of “ma’is alai” (he is repulsive to me) is limited to circumstances where the wife cannot live sexually with her husband or encompasses a situation where she declares, “I do not want this man”? The panel asked her if Levi had not engaged in child abuse, would she have remained with him? Her reply was that she was unsure whether she would have stayed with the marriage. In fact, in the aforementioned recorded conversation which transpired the day before their separation during the hearing, Hindy affirmed that she was happy with Levi in terms of their marital relationship. Consequently, if the definition of ma’is alai is limited to sexual incompatibility, advancing such a plea, there would be no grounds to argue that Hindy was repulsed by Levi.",
"Notwithstanding some Poskim who contend that the two “ma’is alai” pleas are to be distinguished, various authorities conclude that the claim includes a scenario where she doesn’t want to be with her husband anymore. To state it differently, her claim that “she doesn’t want him anymore as a husband” suffices. Furthermore, there is no need for her to articulate the actual words “mais alai”. In contemporary times, various Israeli battei din have adopted this position.",
"On one hand, as Rabbi Herzog observes:",
"Ma’is alai does not only entail plain hatred but an emotional fear of her husband and this is a secret from the secrets (inner dynamic – AYW) of the psyche . . . a person’s soul recoils from touching the person. . . .",
"On the other hand, despite the emotional component of the “ma’is alai” plea, a victim has the ability to articulate the psychic and emotional feelings in rational terms by communicating to a third party (in our case, the beit din panel – AYW) the genesis for these feelings via an “amatla mevureret,” a clear pretext or explanation. In defining what an “amatla mevureret” entails, Rabbi Kook notes:",
"It has to clear to the beit din that justice is with her and he deserves, by his improper actions and practices, that she would be repulsed by him . . . that he caused everything.",
"However, the issue is whether the “amatla mevureret” must be verified via the testimony of two eligible witnesses? As we noted in our earlier decision, notwithstanding some authorities who mandate testimony in order to assess the veracity of a wife’s plea, Tosafot Rid, Avnei Miluim and Helkat Mehokeik do not require such verification.",
"Even in the absence of a requirement to submit evidence, the advancing of an “amatla mevureret” does not suffice to impart validity to the “ma’is alai” plea. As Dayanim Nissim, Elyashiv and Zolty opine, “ein lo la dayan ella amah she’einov ro’ot” (a halakhic arbiter is mandated to follow the discernment of his eyes) determines the veracity of the plea. Consequently, upon listening to the pretext of the plea and the awareness of the circumstances, a beit din panel must sincerely believe that she is raising the plea for substantive reasons relating to her marriage rather than as a ploy because she has an interest in another man. Or if it is clear that she is waiving her right to the value of her ketubah, we can impart credence to a wife’s plea of “ma’is alai.” In a recent psak din, decision the Beit Din ha-Rabbani ha-Gadol rules that we endorse the view of those Poskim who mandate that a beit din discern whether in fact this plea is sincere and genuinely relates to the reason (or reasons) for the dissolving of the marital ties.",
"The question is whether a beit din may coerce a husband to give a get based upon a wife’s “ma’is alai” plea? Notwithstanding that there are authorities who will mandate get coercion; many Poskim will reject this option and the husband may choose to divorce her. Despite the fact that outside of Eretz Yisrael one is not authorized to coerce the giving of a get, we are empowered to obligate the giving of a get. Though there are many Poskim who will equally refrain from obligating a get in a situation of “ma’is alai,” even if the plea is accompanied by an “amatla mevureret “ yet there are authorities who recognize such a claim provided that the wife submits an “amatla mevureret.” Finally there are numerous Poskim who would permit get coercion on the condition that the wife submits an “amatla mevureret”.",
"Alternatively, in accordance with the Poskim who require evidence that in fact Hindy found Levi to be repulsive, at least in regard to his inappropriate relationship with her children, Hindy submitted evidence including: a criminal judgment, testimony by third parties that these events of pedophilia occurred and testimony by two Rabbis that Levi admitted to inappropriate touching of two of his stepdaughters. In March 2012, the daughter who was the victim of abuse communicated her experience to a social worker. In short, the plea of “ma’is alai” is corroborated by evidence as well as by the beit din’s positive assessment of Hindy’s credence which is supported by character references, the absence of advancing a claim for monetary value of her ketubah either in this beit din or any other forum and no proof that she is interested in another man.",
"That being said, is child abuse an ilat gerushin, grounds for divorce that the wife may claim “ma’is alai,” I do not want to live with him? Addressing the case of a married man who was fondling young girls, incarcerated for four years and the wife desired to receive her get, Rabbi Shimon Hanover, av beit din, presiding dayan of the Wurtzberg Beth Din in Germany inquired of Rabbi Yehiel Weinberg who resided in Germany at the time whether there was a basis to obligate the husband to give a get utilizing the secular courts as an avenue to enforce the giving of the get based upon a wife’s “ma’is alai” plea. Relying upon Rabbi Yair Bachrach’s ruling that when dealing with matters of ervah, sexuality, one is required to forewarn the perpetrator and garner evidence regarding the matter prior to arriving at a decision. In the wake of the absence of any forewarning, given that Halakhah does not mandate that the get be coerced under these circumstances, argues Rabbi Weinberg one cannot direct the secular courts to enforce get compliance lest we create a situation of a “get me’useh,” a coerced get. Nonetheless, Rabbi Weinberg admits that when dealing with a husband who is a pedophile, there is credence for a wife to claim “ma’is alai,” and implicit in his ruling, should there be evidentially proof which is halakhically valid there would be grounds to obligate a get.",
"Seemingly, since get coercion fails to be a halakhic option, obligating a get equally cannot be implemented. However, in dealing with a husband who engaged in an illicit affair with his mother-in-law, following in the footsteps of Hut ha-Meshullash, a Yerushalayim Beit Din contends that even those authorities who will object to obligating a get due to a ma’is alai claim would agree that such conduct is so repulsive that no wife would agree to live with a husband who commits such acts. Kal ve-homer, a fortiori, in our case of a stepfather who engaged in illicit touching of two stepdaughters and committed these acts in the presence of Hindy’s oldest daughter who was traumatized by these incidents and is presently in therapy.",
"The argumentation advanced by Dayan H. Izirer in the above-cited Beit Din decision conveys quite clearly and eloquently the ilat gerushin here in our case. Obligating a get of a husband who committed “ma’aseh ke’ur,” repulsive acts with his mother-in-law, the Beit Din expounds:",
"It is clear from the submitted evidence that the wife was unaware of the acts and from the perspective of the wife this is a major insult. Undoubtedly, the husband’s conduct impacts negatively on the emotional world of the wife and it is worse than a husband who curses his wife . . . it is an attack on the personal honor of the wife, family values and family stability. It is attack like engaging in adultery but even more severe. . . .
We must determine which ilah (ground – AYW) will allow us to obligate a get. If we view it from the vantage point of “an adulterer” then we are concerned with the dissipation of monetary assets but here there is no loss of assets. . . . When . . . he commits improper acts in his home and within the context of his private life one does not require the rationale of asset dissipation. This is an attack upon the essence of his life with his wife. In this case, he exploits his relationship with his wife in order to engage in affairs with his mother-in-law behind the hidden eyes of his wife. . . .
Another ground: A husband who desires his mother-in-law that is older than him by tens of years, his behavior towards her entails sexual deviancy and mental dysfunction. . . . The fact that this matter repeated itself many times and during an extended period of time places him in the category of oveir al dat Yehudit (transgresses the Jewish religion) and there is no need for forewarning either because everyone knows and it is as if he forewarned or due to the fact that this is deviant conduct within the framework of a mental disorder and there is no ability to control the matter (his desires – AYW).",
"Upon reading the above, one can only conclude that the facts of our case are almost identical to the fact pattern presented by the Yerushalayim Beit Din. On one hand, we are dealing with a stepfather and stepchildren and the other beit din is focusing upon two consenting adults. However, on the other hand, in both scenarios the wife is unaware of what is transpiring and in each situation the husband is exploiting his ties with his wife. Whereas, in the other case, his ability to engage in an illicit affair with his mother-in-law is built upon his closeness to his wife, in our scenario Levi exploits the situation by utilizing his wife’s home, including the bathroom near the girls’ room to further his mission. Moreover, in terms of argumentation, the Beit Din’s analogy to an adulterer is much more striking! Whereas, a husband’s acts of adultery may entail asset dissipation and therefore a get ought to be obligated under such circumstances. However, here in our case, Levi is living in Hindy’s home where she pays the mortgage, utilities, pays most of the tuition, and shares in financing family vacations. His contribution to the maintenance of the household was to pay for weekly groceries and provided his wife attire for the Yamim Tovim, the Jewish holidays. As such, there was no asset dissipation by Levi and yet Halakhah looks askance at his behavior. In the Beit Din’s words:",
"Undoubtedly, the husband’s conduct impacts negatively on the emotional world of the wife and it is worse than a husband who curses his wife . . . it is an attack on the personal honor of the wife, family values and family stability.",
"Subsequently a few years later, citing the aforementioned ruling of the Yerushalayim Regional Beit Din, the Netanya Regional Beit Din reaffirmed a wife’s repulsiveness vis-à-vis a father’s abusiveness of his daughter. A few months later, Yerushalayim Regional Beit Din again viewed the inappropriateness of such child abuse through the lens of a “ma’is alai” plea.",
"Moreover, a wife’s desire to be divorced from such an individual is not limited to the repulsiveness of the act of child abuse. In dealing with marital relations, as the Talmud states in various places, “one does not live with a snake in the same basket.” Though the Talmudic context of this expression addresses a spouse who acts inappropriately in terms of his halakhic obligations, namely failing to comply with the halakhot of setting aside hallah (dough), a husband who refuse to support his wife and halakhically invalidating marriage to a shoteh, a person who is halakhically mentally dysfunctional, in subsequent generations the statement has been utilized as a description of marital relations marked by abuse as well as mental dysfunction. The common denominator of all these examples conveys the notion that “one does not live with a snake in the same basket” means that a spouse cannot live with another spouse due to the other spouse’s unwillingness to fulfill religious or marital duties or being psychologically impaired. However, in our situation we are invoking the expression that “one does not live with a snake in the same basket” in the sense that Hindy cannot live on the same premises (“in the same basket”) with Levi due to his living in geographical proximity to her children, poses a threat which may potentially endanger her children’s mental and potentially religious wellbeing.",
"2. Umdana – A wife’s assessed expectations of the marriage",
"In contradistinction to kiddushei ta’ut which focuses upon an event prior to the marriage, namely the existence of a preexisting grave flaw in the husband’s physiology or behavior which if failed to be disclosed may under certain conditions be grounds to void a marriage (bittul kiddushin), umdana (ada’ata dehakhi lo kidshah nafshah – with this in mind, she would not have entered into ther marriage) deals with an event (or events) which transpires after the inception of marriage. For example, “had I known that my husband would have become a mumar (an apostate Jew), become a criminal or would have become mentally dysfunctional during our years of marriage I never would have married him” may serve as illustrations of a wife invoking an umdana demukhah, a major inference from assessed expectations (hereafter: umdana) which if proven may serve grounds to void a marriage without the giving of a get.",
"Firstly, based upon our discussion of the ongoing situation of “one does not live with a snake in the same basket,” of ever-present and recurring pedophilia behavior with his steopdaughters in the marital home furnishes an example of the umdana – ada’ata dehakhi lo kidshah nafshah.",
"Furthermore, a second umdana in our case has been articulated by two aharonim (later authorities). Rabbi Eliezer Fried of Volozhin claims:",
"We have found a few times that we understand the nature of the wife and the nature of the matter that she absolutely does not accept the status quo . . . that she refuses [in retrospect – AYW] to be married to him and clearly then the kiddushin are invalid. And we encounter a few times in the Talmud that our Sages have authorized us to weigh demonstrable umdanot. And here if anybody would hear this particular umdana that it is unacceptable for her to be an agunah her entire life.",
"Subsequently, Rabbi Petahiah Horenblass, Av Beit Din (presiding dayan) of Warsaw concludes in a rabbinic matter:",
"One can state, “with this in mind, I never would have married him,” to remain an agunah forever.",
"In the wake of the directive of a French beit din that there are grounds to obligate a get and the couple has been separated for over four and half years, the invoking of the umdana that should she have known that she would become an agunah for the rest of her life she never would have married him resonates in our case.",
"Upon her separation from Levi in what sense did she become an agunah? Firstly, Levi’s decision to flee to another country to avoid criminal prosection ipso facto denied Hindy her entitlement to onah, conjugal relations.",
"Whereas according to some authorities the duty of engaging in marital relations is derived from the Biblical word in Shemot 21:10 “she’erah . . . he shall not diminish” or “ve’onatah he shall not diminish”, others derive the duty by logical inference. Elaborating upon this position, Rabbi Naftali T. Berlin contends:",
"Reason informs us that (the husband) is so bound. . . . as everyone knows, for this purpose that a bride enters into marriage . . . Hence if he denies her sexual ties, she is deprived of her right.",
"In other words, Halakhah recognizes the wife’s right to conjugal relations and therefore the husband has a duty to provide it to her. If a husband can in fact engage in conjugal relations and refuses to comply with his duty either out of hatred or anger vis-à-vis his wife or due to a marital quarrel or because “he cast his eyes on another woman,” he is classified as “a moreid,” a rebellious husband, and he can be coerced to give a get.",
"Given the fact that Hindy separated from Levi due to child abuse and he has refused to give a get, in effect are we to view him as a moreid since it is due to the separation that he cannot live with her? As we mentioned, a moreid is a husband who is withholding intimate relations due to being angry or due to hatred of his wife. In our situation, the cessation of relations is due to the fact that he is onus (under duress) due to circumstances beyond his control, namely being separated from his wife, an action which was commenced by his wife. Thus, how can we consider him a moreid?",
"Seemingly, we may find support for such a position in the Poskim that a sick husband shall wait six months until he is cured before engaging in onah. In other words, given his state of being an onus, since the husband’s abstention from relations stems from his health rather than hatred for his wife, the husband is not viewed as a moreid. Analogously, the same should apply here where Levi’s refraining from onah is due to Hindy’s decision to separate from him rather than due to animosity towards his wife. In both cases, we should view the sick husband and the husband who is forced to move out of the marital home as a situation of ones. Consequently, should a husband be incarcerated due to criminal behavior, seemingly since his incarceration is due to his negligence, he should be viewed as a moreid given his inability to engage in intimate relations. However, some Poskim such as Rabbi Bezaleil Zolty construe the fact of imprisonment as creating a situation of being an onus, no different than a sick husband who is incapable of performing onah and therefore he isn’t to be viewed as a moreid.",
"Nonetheless, there are other authorities who disagree and argue that incarceration may occur either due to the husband’s illegal behavior or due to circumstances beyond his control. On one hand, in a case where a husband was conscripted to the army for a specified time, akin to a husband who is sick for a prescribed time, a wife is halakhically required to remain in the marriage. Given that the husband was coerced to serve in the army, we are dealing with a case of ones and therefore he isn’t viewed as a moreid and thus there is no duty to dissolve the marital ties. On the other hand, serving in a prison is due to engaging in criminal behavior, consequently should a husband be incarcerated he is “posheia,” responsible for being unable to have relations with his wife. Implicit in this view is that even if the imprisoned husband loves his wife and therefore unintentionally he cannot perform conjugal relations, by dint of his imprisonment he is transgressing the negative prohibition of refraining from having relations with his wife as well asfailing to comply with other marital duties and as such he is to be viewed as a moreid and therefore get coercion is in place.",
"Secondly, his failure to support her for the last four and half years of separation engenders an additional reason why mandating get coercion is in place. Finally, the extended time of separation in and of itself mandates the issuance of a compulsory order to give a get. In short, Levi’s failure to comply with his marital duties of engaging in conjugal relations and spousal maintenance coupled with his extended period of separation according to a well-trodden mesorah which recently has been memorialized in three Israeli beit din rulings requires that get coercion ought to be imposed due to the fact that Levi’s behavior has transformed Hindy into an agunah. ",
"Finally, given that Levi fled France and moved from place to place in Europe there is a basis to coerce a get. ",
"In short, there are grounds to coerce a get based upon the wife’s plea of “ma’is alai” as well Levi’s unintentional withholding of conjugal relations and support coupled with his moving from place to place for four and half years since his separation from Hindy.",
"If Hindy had been residing in Eretz Yisrael where get coercion is an option, albeit employed on a limited basis in dealing with child abuse, her marriage may be dissolved by get coercion. Additionally, if child abuse would be viewed through the prism of a ma’is ali plea accompanied by an “amatla mevureret,” there is basis for get coercion. Finally, given that Levi fled France (without his wife) fearful of being imprisoned in his native country due to the commission of a criminal act and refusing to comply with his marital duties such as conjugal relations and providing spousal maintenance creates an igun situation and therefore there is a basis to coerce a get.",
"And in pursuance to certain Poskim, in light of the option of get coercion, Hindy may have been unable to invoke the umdana, “had I known that my husband would engage in pedophilia of my children during our years of marriage I never would have married him.” However, today outside of Eretz Yisrael, where Hindy resides, there is no beit din which is legally and thus halakhically empowered to coerce a husband to give a get.",
"Consequently, in the absence of the ability to coerce Levi to give a get in contemporary times in the Diaspora we may employ kiddushei ta’ut and umdana as vehicles to void a marriage.",
"Based upon our foregoing presentation and the cumulative evidence submitted to this beit din, notwithstanding contrary views recorded which reject the deployment of umdana as a means to void a marriage, following a mesorah to which we alluded to earlier, we find that our analysis of the umdana, ada’ata dehakhi lo kidshah nafshah which may be invoked concerning an ongoing marital situation of “one does not live with a snake in the same basket,” of ever-present and recurring pedophilia behavior with his stepdaughters as well as the umdana “one would have not married a man to remain an agunah forever” characterized by Levi’s extended separation from Hindy with its attendant consequences of failing to comply with his marital duties provide two of the grounds for freeing Hindy from her marriage without the giving of a get.",
"Based upon the foregoing presentation of the existence of two umdanot (“she never would have married a pedophile” and “she never would have married someone who would be me’again her forever”). Hindy Silver is free to remarry without a get any Jew except a Kohen."
],
"g) A husband who is a batterer": [
"A husband who is a batterer",
"1. A decision obligating a husband to give a get",
"The facts of the case",
"In 1969, Ya’akov Markowitz married Rachel Markowitz in accordance with Halakhah. The couple had three children. One was born in 1971, the second child was born in 1973 and the last child was born in 1979. Prior to 1979, Ya’akov participated in a few incidents of violence at work and sometimes drove the car erratically. In 1979 Ya’akov became involved with people of ill-repute and Rachel alleges that this was the reason that Ya’akov began at that time to become physically being abusive towards her. Support for her claim was corroborated by copies of nine documents issued by doctors and hospitals which confirm that between 1983 and 1988, she was a battered wife. For example, in 1983, due to his assaults she experienced traumas to her arms, shoulders, brain bone and the neck. All these traumas required medical treatment. A year later, she was a victim of a severe head injury, an attempt of strangulation with marks on the throat and experienced psychological traumas which resulted in headaches, shivering, high blood pressure and depression. These acts of battery as documented by the doctors and hospitals continued for a few more years and during this period, in November 1985, she left the marital home because her life was threatened by him while brandishing a rifle. In late 1985 Rachel gave him a second chance after Great Rabbi Kling of Lyon, France, reproved Ya’akov for his assault as being in violation of the Jewish tradition but his involvement and words of admonishment were to no avail. In December 1985, she filed for civil divorce but she was still hoping that he would change and attempted for a third and final time to reconcile with him. Though Rachel attempted to reconcile with him and threatened him that if the battery didn’t subside she would leave him, nonetheless in June 1986, he again attempted to strangle her and she finally separated from him permanently. Subsequently, on October 7, 1987, her husband entered her apartment, while she was in bed he stabbed her a few times, and their son saved her. Due to the stabbing, she was admitted to the intensive care unit of a local hospital with a life-threatening bleeding condition. For the attempted homicide, he was imprisoned for ten years by an Assize Court, a French criminal court due to his violation of Articles 2, 295, 296, 297, and 304 of the French penal code. In 1995, he was released from prison. In reply to our question whether her husband had a criminal record prior to their marriage, quickly and unhesitatingly she responded, “There was no criminal past.”",
"Given that the acts of abuse began already in 1979, we asked her why she waited until 1986 to leave him. Her reply was that she feared for her life and he threatened her that should she leave him he would slaughter her siblings. On one occasion, she went to the police to report an act of domestic violence. Once she left the police the violence accelerated, and given that she continued to be fearful for her life she continued to stay in the marriage. Moreover, in the 1980’s the police did not act on an order of protection. It was for these reasons that she never applied for an order of protection against him. Moreover, should her husband be incarcerated, it was her assessment that upon release he would threaten her life.",
"Being traumatized by her husband’s conduct and feeling physically threatened, it was unsurprising that during the entire three and half hours of our hearing she focused upon her personal predicament of being a battered wife, with only a brief mention of her financial situation during her marriage and absolutely no mention of her children, except for her reply to our question, “do you have children?” It was only after the close of the hearing; she responded to our query and e-mailed the following communication to us:",
"I have to add some important points concerning your question – “how was your life?” Every day my ex-husband came back home very late at night, sometimes at nine but most of the time at 2 AM or even later, and always with friends to drink alcohol and to make noise. He never told me where he was and what he did!
When I came home with the children after work, around five o’clock, I was stressed to do so quickly the schoolwork with the children, their shower, to cook their dinner and to bring them to bed, before their father came home because I didn’t want that they could see eventual scenes of violence.
When he came home late at night, his meal was always ready on the stove but nevertheless he woke me up and I had to warm up his meal. That was my sad life.",
"After serving on divorce cases for close to two decades, it was the first time that during the entire proceeding a mother failed to even mention her children. This e-mail communication underscores for the beit din panel that the one time she speaks about her children it is done within the context of her life as a victim of spousal abuse.",
"In June 1988, a civil divorce was executed and the court concluded that the husband was responsible for the divorce due to acts of domestic violence. In 2005 and 2006, she demanded her get. However, to date, despite her request as well as the attempts of various rabbis to procure her a get, he has refused to give it to her.",
"Discussion",
"According to Halakhah, raising your hand to strike a fellow-Jew, much less assaulting him, is a violation. Moreover, one must respect the dignity of one’s wife and one is prohibited from striking her. Throughout Jewish history, rabbinical luminaries such as Rabbeinu Yonah and Rabbi Pelagi have railed against husbands who batter their wives and are unaware of the severity of the prohibition. In fact, a batterer is liable to pay his wife for any injury incurred from the assault. As an Israeli rabbinical court recently states:",
"A wife is not the acquisition of her husband, “for life she is given and not for pain.” There is no place for distinguishing between a wife and a friend, and as the words of Rema state, “it is a sin like striking a friend”. . . . On the contrary, in relation to one’s wife, the husband is obligated to love her and respect her more than the duty concerning his friend.",
"That being said, the emerging issue is whether a wife is entitled to divorce herself from a batterer. Clearly, a wife who is a victim of battery is entitled to separate from her husband due to the Talmudic dictum, “one does not live with a snake in the same basket”. Under such conditions, can a beit din obligate a husband to give a get? Notwithstanding that there is a debate whether battery serves as grounds to coerce a get, many Poskim in the past and in contemporary times will obligate a husband to give a get under certain conditions. Clearly, those Poskim who sanction get coercion for a batterer would concur that one can obligate a get, which in the hierarchy of get judgments entails a lower level of enforcement than a get compulsion order.",
"Psak Din (Decision)",
"Based upon the cumulative evidence submitted to this panel, we obligate Ya’akov to immediately give a get unconditionally to Rachel.",
"2. A decision to void the marriage",
"Discussion",
"In light of his get refusal, therefore we have to address the voiding of the marriage. Among the techniques that allow a beit din to void a marriage (bittul kiddushin) we encounter kiddushei ta’ut, loosely translated an erroneous marriage. Three conditions have to be obtained prior to invoking kiddushei ta’ut for the expressed purpose of voiding a marriage:",
"(1) The husband’s defect must be a major one (a mum gadol), such as sexual impotency, refusing to have children, insanity, homosexuality, apostasy, a marital expectation communicated by the prospective husband prior to the marriage which turns out to be a misrepresentation, engaging in criminal behavior – such as business fraud and pandering prostitutes – or exposing one’s mate to a contagious disease such as syphilis or HIV, but only if such a flaw was present prior to the onset of the marriage. All of the aforementioned examples of a husband’s flaws have been characterized by one or more authorities as a mum gadol. Whether a particular defect serves as a major defect and therefore grounds for voiding a marriage is subject to the discretion of an arbiter or beit din. Consequently, there will be a difference of opinion concerning the severity and the magnitude of the defect that is required to void the marriage.",
"(2) The wife must be unaware of the defect prior to the inception of the marriage and must only discover it after the marriage. On the other hand, if, for example, a husband commits adultery or contracts Alzheimer’s during the marriage, though both may be characterized as a mum gadol significantly impairing the matrimonial relationship, there would nevertheless be no grounds for a wife’s claim that the marriage was consummated in error because the conduct or disease respectively occurred after the onset of the marriage.",
"(3) Finally, upon a wife’s awareness of the major latent defect that her husband may have intentionally or unintentionally failed to disclose “the mum gadol,” there is a debate whether she must immediately bolt the marriage or, if she has “a ta’am ha’gun,” a reasonable explanation, in the words of Rabbi Moshe Feinstein, she may remain in the marriage for a certain period of time.",
"Given that we could not identify a preexisting flaw in the husband’s persona, we were unable to void the marriage based upon “kiddushei ta’ut”.",
"In bold contrast to the avenue of kiddushei ta’ut which focuses upon the presence of a major defect which existed prior to the marriage, as various Poskim note emerging from a Talmudic discussion, one finds another type of bittul kiddushin which talmudically is defined as “ada’ata dehakhi lo kidshah nafshah,” loosely translated, with this understanding, if she had known at the time of the marriage that she would be married to a man with a certain defect, she would never have consented to the marriage. In effect, the Poskim label this reasoning as an umdana, an assessed expectation of the wife which relates to future conduct which transpires after the onset of the marriage. For example, “with this understanding, had I known my husband would become a criminal during our marriage I never would have married him.”",
"Seemingly, the employment of an umdana here is open to challenge. As we know, for an umdana to be effective depends upon the consent of both parties. For example, a sales transaction involves the agreement of parties, the seller and the buyer – i.e. “taluy be-da’at shneihem.”",
"The voiding of the sale with the appearance of a defect subsequent to purchase would be predicated upon two conditions:",
"1. The buyer would have not consummated the deal if he had realized that the item sold would be defective within a reasonable time. As Shulhan Arukh Hoshen Mishpat 232:3 states,",
"If one sells another land, a slave, a domesticated animal, or other moveable property, and a defect, which the buyer did not know if, it is found in the purchase, the buyer may return it (to the seller and receive his money back – AYW) even if a number of years (have elapsed since the transaction – AYW), since this transaction was based upon fundamental error, provided that the buyer did not to continue to use the item after he became aware of the defect. If however, the buyer continued to use the item after he saw (or became aware of – AYW) the flaw, he has (by his behavior – AYW) renounced (his right of rescission) and cannot return (the defective item and receive his money back – AYW).",
"2. The seller would negotiate the sale contingent upon the utility of the item being sold. In other words, the voiding of the sales transaction is dependent upon the existence of both the seller’s and buyer’s implied conditions.",
"The requirement of “taluy be-da’at shneihem” as a precondition prior to the invoking of an umdana equally applies to marriage, which is based upon the consent of both a man and a woman.",
"For example, if a husband is engaged in criminal activity while married, the fact that a wife would exclaim, “had I known he would be a criminal, I never would have married him” would seem to offer no basis for voiding the marriage, since a similar statement must have either been articulated by the husband or be presumed on the husband’s behalf. In fact, the husband may not want to void the marriage in order to avoid his sexual intercourse being viewed as be’ilat zenut (an act of prohibited fornication). However, some Poskim argue in cases of a major umdana – or what has been labeled as an umdana gedolah or demukhah (a major inference expressed by one person) – that this suffices in order to void a marriage.",
"The emerging issue is whether Halakhah recognizes the umdana, “had I known he would be a criminal, I never would have married him,” as a basis for voiding the marriage? Notwithstanding certain authorities who reject the possibility that a marriage may be voided on the basis of an umdana, are there grounds to void a marriage in our case?",
"Take the following case: Prior to the marriage, a prospective husband fails to disclose to his prospective wife that he was arrested along with two other men on suspicion of counterfeiting coins. The woman was questioned and she knew nothing about the crime. Subsequently, the man and woman married and later she wanted to divorce from him. However, the husband was imprisoned (and the implicit assumption is that he was incapable to give a get) and given that she was agunah, the question posed to Rabbi Yosef Shaul Nathanson, a nineteenth century authority in Lemberg, Poland, was whether the marriage may be voided based upon umdana. Upon inquiry into the facts, the marriage was voided on two grounds: Firstly, he determines that the seder kiddushin, the betrothal ceremony, was invalid. However, he then states, “hadashot, innovative thinking, I am communicating to sanction this oppressed one” and suggests that we are dealing with a major latent defect due to the existence of an umdana. His analysis centers upon the Talmudic discussion of the childless widow who is obligated by the laws of yibum (levirate marriage) to marry her brother-in-law. Her brother-in-law is a mukeh shehin, afflicted with boils. Initially, Talmud Bava Kama 110b invokes the umdana that “had she known at the time of the marriage that she would have to marry a man with boils, she never would have married her husband.” However, one of the reasons that the umdana is rejected by the Talmud is due to the doctrine that is better to be married rather than being single. Consequently, the fact that she is now bound to another man who is afflicted with boils would not serve as a reason for refraining from marrying his brother. In light of this discussion, argues Rabbi Nathanson,",
". . . I view this as a matter of a fortiori reasoning (from the situation of mukeh shehin). In that case (where she was clearly married to her first husband who possessed no blemish), we say regarding the levirate husband who is a mukeh shehin that she would be able to be released to marry another without the performance of halitzah were it not for the doctrine that, “it is better for her to remain in this state of marriage.” A fortiori, where the husband is sitting in jail, totally under the power of the government, and nobody knows his fate, she should be permitted to be free; for under these conditions, the doctrine, “it is better to be in such a state” plainly is inapplicable, because it is impossible for her to engage in marital ties with him. . . .",
"To state it differently, in light of the definitional guidance we may distill from the umdana regarding halitzah, Rabbi Yosef Shaul Nathanson arrives at the conclusion that a husband who is not living with his wife is precluded from engaging in conjugal relations and therefore the marriage may be voided.",
"Additionally, Rabbi Nathanson defines the umdana by stating:",
"This is a major defect as it is written in Section 237(232 – AYW) in Hoshen Misphat clause ten that if he is subject to capture and execution by the government he has a defect and she can “return him”. . . .",
"Following in the footsteps of Rabbi Eliezer ben Yoel ha-Levi and Rabbi Yonah Landsdorfer, umdana is being defined by Rabbi Nathanson as “a mistaken transaction”. In other words, in pursuance to Rabbi Nathanson, the husband failed to disclose to his wife prior to the marriage that he would be serving time in prison. Consequently, the umdana here is being defined in terms of the ta’ut, the error that no woman would marry a man if she knew that he would be in prison.",
"In the same century, Rabbi Aharon Levine av beit din (presiding dayan) in Reesha in the Ukraine addresses the following question. Prior to the marriage, the prospective husband failed to disclose to his wife that he was a criminal dealing in a white slave business. After the marriage, he was imprisoned and was forced to civilly divorce her but refused to Jewishly divorce her, i.e. he was recalcitrant regarding the giving of a get. Relying primarily upon a halakhic impropriety in the wedding ceremony, Rabbi Levine offers the following senif, supporting argument, to his ruling to free the woman without a get:",
"Since subsequently it was discovered that the groom was one of the criminals who engaged in a white slave trade business, it can be stated that even if there had been no defects in the ceremony, it is without validity, since there is no greater umdana than this, that the woman did not consent to marriage with this in mind.
We have found in Bava Kama . . . that even though we may want to say that a childless widow who falls before a man with boils can be freed without halitzah due to the fact that “with this understanding she did not agree,” we cannot do this because as Resh Lakish states, “it is better for a woman to be in such a state than be single . . .”",
"And though Rabbi Levine cites the ruling of Rabbi Nathanson as a precedent for his ruling which he readily admits is dealing with almost the identical fact pattern and relies upon the same Talmudic discussion of halitzah to serve as a ground to void the marriage, nevertheless, his understanding of the umdana is markedly different from Rabbi Nathanson’s perception and he concludes:",
"But this line of reasoning is inapplicable to our case because the groom was among those criminals whose lives are in continuous danger, and they dwell in perpetual fear, so it would be impossible for her to have a normal life with him. And, additionally, what woman would desire to live with a low-life and evil person such as this, and she did not agree to marry him with this understanding. And there is no umdana greater than this, that if she was aware of this she would have not married . . . if she had known of his criminality.",
"In contrast to Rabbi Nathanson who focuses upon the inability of engaging in conjugal relations with a husband who is incarcerated, Rabbi Levine focuses upon the negative aspects of being married to a criminal which stem from threats to the nuclear family in general and to the wife in particular, both from the outside world as well as from the husband himself. Whereas Rabbi Nathanson defines the ramifications of imprisonment in narrow terms, Rabbi Levine defines incarceration and the effects of criminality in more expansive terms. Finally, whereas, Rabbi Nathanson is arguing that one of the reasons that the marriage ought to be voided is due to “kiddushei ta’ut” which is defined in terms of an umdana contends Rabbi Levine that after the marriage, the husband became a criminal and in light of the umdana that no woman would marry a man who becomes a criminal, he voided the marriage. In other words, whereas Rabbi Levine utilizes the umdana to address the husband’s criminality which emerges after the marriage, argues Rabbi Nathanson that the umdana can be employed to articulate the husband’s conduct before the marriage. In effect, the umdana, in Rabbi Nathanson’s mind defines the ta’ut which failed to be disclosed to his wife prior to the marriage. Despite the differences between Rabbi Nathanson and Rabbi Levine regarding the nature and scope of the umdana, in effect Rabbi Levine employs medameh milta le-milta (analogical reasoning) while explicitly stating that his ruling is based upon Rabbi Nathanson’s teshuvah. The common denominator between the two Poskim is that they deploy an umdana dealing with the inability of a wife living with a criminal albeit an umdana leading to differences avenues to void the marriage!",
"Based upon the cumulative evidence submitted to this beit din panel, for seven years Rachel was living with a criminal who engaged in acts of domestic violence which culminated after their separation in his incarceration for attempted murder of his wife. Following in the footsteps of the aforementioned mesorah, tradition emerging from Rabbi Levine’s ruling that recognizes that an umdana as it relates to a future event may serve as a vehicle to void a marriage, we invoke the umdana, “had I known he would be a batterer, I never would have married him,” in accordance to the parameters established by Rabbi Levine in the context of an umdana, therefore we void the marriage and Rachel is free to remarry without a get.",
"In sum, we invoke an umdana which transpired after the onset of marriage in order to void the marriage. The umdana relates to the fact that the husband is a batterer.",
"Lest one challenge our conclusion in light of the fact that it took Rachel seven years to bolt the marriage due to his commission of criminal acts and therefore there is no basis to void the marriage, let us add the following. Given that already in 1979, his improper conduct commenced and she already realized that “this wasn’t the person she expected to marry,” she should have separated from him already at that time. And in fact, there are authorities who would contend that upon her awareness of his criminality she should have bolted the marriage. Her decision to remain with the marriage until 1986 demonstrates “savra ve’kiblah,” she accepted the situation and therefore there ought to be no grounds to void the marriage.",
"However, others may argue that in the event that there is a reasonable explanation for remaining in the marriage, one can still invoke the umdana and void the marriage. As we explained, Rachel decided to remain in the marriage due to the threats upon her life as well as her siblings made by her husband should she leave him. Nonetheless, after a series of events spanning seven years, she realized that to continue to live with him was no longer an option and she separated from him in 1986. Given that sixteen months after their separation, he attempted to murder her and she only escaped from death due to the assistance of one of her sons corroborates and gives credence to her long-term concern for her own personal safety! As such, we can understand why she remained with him for such a long time.",
"In fact, the original source for the umdana, “had I known he would have a particular defect or act in a certain fashion, I never would have married him” is found in Talmud Bava Kama 110b and in that discussion there is no mention of any time limitation that is required before invoking the umdana. Secondly, there are Poskim who invoke the umdana years after the kiddushin was established. For example, addressing the case of a mentally dysfunctional husband who was hospitalized, Rabbi Tzvi P.Frank rules:",
"Additionally, I saw in Hesed Le-Avraham, Tinyana, at the end of siman (responsum – AYW) 55 that is applicable to our matter. Regarding a husband who became an apostate (a mumar – AYW), clearly had she known she would not have married him. And (his psak – AYW) should equally apply to our matter since he is insane and a person cannot live together with a snake in the same basket . . . and this is worse than a person afflicted with skin boils (mukeh shehin – AYW) and we may say had she known at the time of the marriage she would have not married him . . . and with an insane person one cannot live together and it is akin to an apostate. . . .",
"Clearly, Rabbi Frank’s case which invokes an umdana does not indicate that the husband’s succumbing to mental dysfunction transpired right after the act of kiddushin.",
"What is the prerequisite for employing the umdana? As Rabbi Nathanson notes, in a situation where there are grounds to coerce a get and we are unable to employ coercion, then we are permitted to invoke an umdana. In our case, due to his acts of physical abuse directed against his wife there are grounds for get coercion. Given that we are bereft of the authority today to employ get coercion, even if years have lapsed since the act of kiddushin, in pursuance to Rabbi Levine’s view we can invoke umdana and thus void the marriage.",
"In our case, the husband is not living with his wife for many years, he does not want to return to her and we have been told that he is living with a non-Jewish woman. This situation, as well as his past criminal acts, serves as a basis to coerce a get. In the wake of our inability to apply get coercion, one can invoke “ada’ata dehakhi lo kidshah nafshah” even years after the kiddushin and therefore void the marriage.",
"As some Poskim point out, prior to invoking the umdana one must be assured that there exists no basis to coerce the husband to give a get. If get coercion is a distinct possibility, then her marriage could have been dissolved by get coercion due to Nitva’s get intransigence In fact, there is a precedent for employing get coercion when dealing with a batterer who assaulted his wife as part of his habitual conduct, afterwards attempted to murder her and subsequently was imprisoned for his illegal conduct. Relying upon the positions of Even Yisrael, Mateh Lehem and Avnei ha-Ephod, argues the Beit Din that the husband’s imprisonment precludes him from performing his marital duties such as providing spousal support and engaging in intimate relations, therefore we coerce him to give a get. Furthermore, even though many authorities such as Gaonim, Ramban and Rema will refrain from coercing a get regarding a batterer, nevertheless, contends the Beit Din that such cases are dealing with assaults which are not life-threatening. However, should the battery be life-threatening, these Poskim would concur that a get coercion ruling should be rendered. Given that in France, the Jewish community isn’t legally empowered and therefore halakhically permitted to employ get coercion, in accordance to the above mesorah, tradition we can invoke the umdana.",
"Finally, as Rabbi Eliezer Fried of Volozhin argues:",
"We have found a few times that we understand the nature of the wife and the nature of the matter that she absolutely does not accept the status quo . . . that she refuses [in retrospect – AYW] to be married to him and clearly then the kiddushin are invalid. And we encounter a few times in the Talmud that our Sages have authorized us to weigh demonstrable umdanot. And here if anybody would hear this particular umdana that it is unacceptable for her to be an agunah her entire life.",
"Subsequently, Rabbi Petahiah Horenblass, Av Beit Din of Warsaw contends in a rabbinic matter:",
"One can state, “with this in mind, I never would have married him” in order to remain an agunah forever.",
"Notwithstanding Rabbi Moshe Schacht’s view that it is uncertain whether there is a basis for employing this umdana, for both Rabbis Fried and Horenblass it was clear that there were grounds to invoking the umdana that should she have known that she would become an agunah for the rest of her life she never would have married him as a senif, as a supporting argument to void the marriage.",
"Seemingly, creating an igun situation does not constitute an “ilat gerushin,” grounds for divorce. As we know, a wife is entitled to advance a plea for divorce on the grounds of the existence of her husband’s physical defects such as his contraction of an infectious disease or impotency and engaging in improper conduct towards her such as refusing to engage in conjugal relations or being physically abusive towards her. Under certain conditions and according to many authorities, a beit din will coerce the giving of a get. Though a husband who is get recalcitrant entails “withholding good from a friend” and is an infraction of “loving your neighbor like yourself,” most Poskim would not consider freeing a woman from a situation of “igun” as an ilat gerushin.",
"However, Rabbeinu Yeruham introduces the notion that a husband’s get recalcitrance may serve as grounds to coerce a get. He states the following:",
"My teacher Avraham ben Yishmael writes that it seems to him that a wife who says she does not find her husband pleasing and that he should give her a get and ketubah, and the husband says that he likewise does not find her pleasing, but does not want to give a get . . . we wait twelve months regarding the get, because possibly she will reconcile. After the year, we force him to divorce her. . . .",
"In short, in the wake of “a dead marriage” where there are no prospects for marital reconciliation, if the husband refuses to give his wife a get, but desires that his wife to remain an agunah, Rabbeinu Yeruham concludes that we compel him to give a get.",
"Notwithstanding those authorities who reject igun as an ilat gerushin for even obligating a get much less a basis for get coercion there are other Poskim who endorse Rabbeinu Yeruham’s view that igun may serve as grounds for sanctioning get coercion.",
"Based upon the foregoing, given that his prolonged separation from Rachel and his nocompliance with his marital duties of engaging in conjugal relations and furnishing spousal support creates an igun sitation and therefore serve as grounds to coerce a get and in wake of the inability to coerce a get today in France, we may invoke the umdana of “ada’ata dehakhi lo kidshah nafshah.”",
"There exists an umdana that had she known that she would become an agunah for the rest of her life she never would have married him. In our case, the couple was already separated in 1986 and since that time Ya’akov has refrained from engaging in conjugal relations and providing support for Rachel. Being separated for over a quarter of a century from her spouse and being married to Ya’akov who refused to comply with his marital duties created an igun situation for Rachel. On behalf of her, employing the umdana, the beit din states that had Rachel known that she would become an agunah she never would have married him.",
"In short, the inability today to employ get coercion regarding a husband who is a batterer as well as a husband who has created an igun situation serve as the bases of allowing us to invoke an umdana to void their marriage.",
"Moreover, utilizing this avenue of preventing igun to void a marriage indicates that the umdana may emerge years later after the consummation of the act of kiddushin and yet may serve as a vehicle to be mevatel kiddushin.",
"Psak Din",
"Notwithstanding contrary views which reject the deployment of umdana as a means to void a marriage, we follow the mesorah of other Poskim who invoke the use of an umdana as a vehicle to void a marriage. Based upon the umdana of expecting to receive her get rather than becoming an agunah for life, as well as the umdana of never expecting to be married to a criminal, we hereby rule that the marriage is voided and Rachel is free to remarry without receiving a get."
],
"h) A husband who has a bipolar personality disorder": [
"A husband who has a bipolar personality disorder",
"The facts of the case",
"Prior to proceeding to our beit din, Sima had appeared in front of another beit din regarding the matter of a get. Prior to the marriage, the parties had signed a prenuptial agreement wherein it is stated that should Sima request her get and Shalom refuse to give a get, Shalom would pay $150 a day as a support obligation and that the matter of the get was to be resolved by this beit din. After deliberation, the beit din obligated Shalom to give a get and awarded $75,000 to Sima due to Shalom’s failure to give a get. The amount awarded was calculated based upon the number of days Shalom refused to give a get. Subsequent to that decision, in October 2014, the beit din addressed whether there were grounds to void the marriage. After extended deliberations, in September 2015, the beit din failed to void the marriage and permitted any other beit din to address the matter of bittul kiddushin, voiding the marriage. In March 2016, Sima opened up a case with this beit din.",
"Lest one challenge our right to revisit the merits of bittul kiddushin by invoking the Talmudic rule regarding issurim, prohibitions such as dealing with a case of a hezkat eishet ish (the presumption of Sima being a married woman), “if a scholar prohibited something, his colleague has no authority to permit it after it has already been forbidden,” this rule may be inapplicable here. Firstly, the other beit din never actually issued a ruling. Secondly, even if the earlier panel of dayanim would have rendered a ruling which did not void the marriage, there is a basis to argue that this rule is inapplicable in contemporary times or even if it is applicable today, when dealing with matters of igun one is permitted to revisit a request to void a marriage.",
"After receiving no relief from the other beit din, Sima approached our beit din to address the matter. Despite being summoned by the other beit din as well as our beit din, Shalom failed to contact either panel and failed to appear for any of the proceedings. Both battei din conducted hearings regarding bittul kiddushin in the absence of Shalom.",
"At our hearing, Sima submitted her presentation accompanied by evidence and testimonies regarding her marriage. In the summer of 2012, Sima, at the age of 21, married Shalom in accordance with Halakhah. On her wedding night, Shalom confessed to Sima that he failed his bar exam and he told her that he was depressed. He acknowledged at the time that he was depressed in the past and Sima understood the situation “as a happening in life” rather than a mental illness. During the next few months, Shalom spent the majority of time in bed. Sima was told that embarking upon marriage entailed “an adjustment period” and therefore Sima attempted to be supportive of him due to his feelings of embarrassment being unemployed. In retrospect, he was suffering from severe depression at the time but neither Sima nor her parents understood that his behavior at the time was symptomatic of a mental disorder. Sima’s parents were impressed by his sincerity, ambition and intellect. In fact, their family rabbi who agreed to meet him prior to their engagement for the purpose of determining whether he was “a proper mate” for Sima had primarily a positive assessment of his personality. Yet, in January 2013, he began smoking marijuana on a daily basis.",
"After April 2013, his mental state began to improve. His mood improved and he was happier than previous months. Shalom became employed and subsequently quit his job hoping that he could be self-supporting with the assistance of inheritance money that he received which would be invested in the starting of a new company. By July 2013, he was energetic and working all the time. At the same time, he exhibited abnormal behavior such as refusing to board a plane before his name was called out by a steward and publicly yelling. After returning from his trip, wearing an expensive suit he gained entry to Henry Kissinger’s apartment in the residential towers of the Waldorf Astoria by tricking the Secret Service. During that month, he communicated to Sima some of his crazy ideas including his plan to murder his business partner. By the end of the month, Shalom was impoverished and they couldn’t afford the lease of their Fairlawn, NJ apartment and decided to move in temporarily with Sima’s parents. Shalom took over a room in his in-laws’ basement, called it “the war room,” and he duct-taped the entrance and lined the windows with silver foil. Until this time, Sima’s parents had never observed him exhibiting manic depression. By that time, Sima and her parents knew that he had completely lost it. At nights, he walked the streets, during the day he slept, and in his “waking hours” he was frequently ranting and raging about various matters and could not focus adequately upon his new business plan. While living with his in-laws, he told them that he was bipolar and he controlled his behavior by consuming marijuana rather than taking medication. One night during early August, after having an altercation with Sima while she was driving he jumped out of the car. Subsequently, he jumped on top of the car while it was in motion. He wasn’t hurt and she left him there. Given his erratic behavior, both Sima and her parents told him that he would have to leave the house. Eleven months after their marriage, Sima had separated.",
"Subsequent to their separation, Sima learnt that he had attempted suicide twice in the past and that he spoke to his business partners about committing suicide and now again Shalom threatened her a few times that he may commit suicide. Allegedly, after the separation he was arrested for menacing in Woodstock and apprehended for running naked on a New York City highway and was tranquilized and hospitalized. By the time of marital separation, his inheritance money of $50,000 was depleted due to his failure in his business investments and according to the accounts of his business partners; Shalom was thrown out of the start-up company. Moreover, his bank account was overdrawn by $1700. Though Sima requested a get he has refused to give one. At one of the dinner conversations in his in-laws’ home, he said that Sima is his property and since he is Sephardic he may marry more than one wife.",
"Discussion",
"I. Kiddushei Ta’ut (lit. a mistaken betrothal, loosely translated as a mistaken marriage)",
"Prior to a wife invoking the tool of kiddushei ta’ut to void a marriage retroactively and claim that there was an error in the creation of the marriage, three preconditions must have been obtained:",
"(1) The husband’s defect must be a major one (a mum gadol) such as sexual impotency, refusal to have children, insanity, homosexuality, apostasy, a marital expectation communicated by the prospective husband prior to the marriage that turns out to be a misrepresentation, if he is engaging in criminal behavior such as business fraud or if he exposes one’s mate to a contagious disease such as syphilis or HIV; this flaw must have been preexisting at the onset of the marriage. All of the aforementioned examples of a husband’s flaws have been characterized by one or more Poskim as a mum gadol. Whether a particular defect serves as major defect and therefore grounds for voiding a marriage is subject to the discretion of the beit din.",
"Based upon the cumulative evidence submitted, we find that Shalom failed to disclose prior to the marriage that he was bipolar. Said conclusion is supported by testimony given by three of his friends as well as a receipt from a psychotherapist who specializes in bipolar and mood disorders which attests that Shalom visited him ten months into the marriage. The receipt from this visit had a diagnosis code of 301:13 which indicates a pre-existing mental condition of at least two years prior to the visit. According to the DSM (Diagnosis and Statistical Manual of Mental Disorders) the Code 301:13 identifies a bipolar disorder. Sima submitted copies of check receipts of two psychiatrists who observed him a year prior to the marriage. Finally, there is documentation authored by Shalom where he admits having a mental condition prior to the marriage, testimony from his friends that he suffered from PTSD while serving as an Israeli soldier in the Gaza war, a copy of a Haifa arrest in August 2010 for assaulting a former girlfriend and copy of a September 2013 police report where he was arrested for assault with a deadly weapon.",
"Based upon Sima’s presentation and the testimony of her parents as well as Shalom’s friends, the symptoms of this mental disorder had been observed and described in the form of severe depression, delusional and manic behavior, assaults, drug abuse, suicide attempts and homicidal threats. The question which emerges is whether this disorder is to be labeled as “a mum gadol,” a major defect.",
"The criteria for being classified a shoteh, mentally dysfunctional are set down in Tosefta and subsequently cited in Talmud:",
"Our Rabbis taught: Who is a shoteh? One who goes out alone at night, one who spends his night in a cemetery and one who tears his clothing.",
"Given that Shalom did go out alone during the night and appeared naked on a highway, there is Talmudic controversy whether one requires one type of erratic behavior to be deemed a shoteh or one requires all three types of abnormal conduct to establish mental incompetence. In fact, a subsequent passage in the Talmud adds a fourth form of aberrant behavior, namely one who destroys what is given to him.",
"However, to argue that based upon these two specific manifestations of erratic behavior one ought to void a marriage seems to defy logic. In fact, a read of one of Rabbi Menashe Klein’s teshuvot seems to lead one to the conclusion that signs of being a shoteh which may serve as grounds for bittul kiddushin are specifically the types of aberrant behavior noted above. However, in our understanding the behavior deemed being irrational goes well beyond these forms of erratic conduct. As Talmud teaches us what we are really concerned with is whether there is a rational justification for acting this way. We need to understand what prompted such conduct. Is it symptomatic for an underlying psychological disorder or reflective of a thoughtful decision? Moreover, notwithstanding some authorities, as we learn from Rabbis Yosef Karo’s and Moshe Issereles’s rulings regarding the disqualification of witnesses, the list is not a closed list but encompasses any form of irrational conduct which may establish him as a shoteh, mentally incompetent. In fact, numerous Poskim endorse their rulings and contend that the list is not exhaustive. Furthermore, numerous Poskim argue that the psychotic behavior must have occurred at least three times in order to label him a shoteh.",
"Addressing the case of a wife who had a few defects and refused to proceed with her spouse to a din torah, a rabbinical court proceeding relying upon a ruling of Rabbi Yosef Kolon, Rabbi Yoav Weingarten expounds:",
". . . even if she is not insane, and simply does not know how to behave and conduct herself in the home due to her silliness and naïveté, this is considered a great, major defect and he is permitted to marry another . . . as discussed in Maharik. . . . The case was thus: the betrothed one lost her mind and could not help in any way in establishing a household. . . . And for this reason, Maharik voided the betrothal, even though the defect developed subsequently. Towards the end of his responsum he writes that even if she had properly married, the ban of Rabbeinu Gershom would be inapplicable. In that specific case, you must arrive at the conclusion that Maharik was dealing with someone who was not halakhically insane. For otherwise, why did he concern himself with the issue whether the prospective husband had to marry her, since an insane person is not marriageable? Therefore, one must conclude that the ban of Rabbeinu Gershom does not apply. . . .",
"Similarly, focusing upon a wife who is a hypochondriac and does not take care of the chores of the domestic household and cannot observe the halakhot of being a nidah, even though she does not meet the shoteh criteria set down in the Talmud, Rabbi Aryeh Lifshitz concludes that it is a major defect and the couple should divorce. Such a line of argumentation was advanced by the Sanzer Rov that when dealing with whether a husband may remarry without his wife who shows shoteh-like conduct accepting a get, one need not demonstrate that the behavior is reflective of the Talmudic criteria of mental incompetence. One must only prove that a wife who cannot live with her husband like everyone else does is deemed a shoteh. The same rationale for defining mental incompetence was endorsed by others. Despite the fact that all of these decisors were defining shoteh in the context of a wife’s mental state and dealing with the permission of a husband to remarry without a wife’s consent to receive her get, nonetheless their positions will equally apply to situation of a husband’s irrational conduct.",
"Notwithstanding Rabbi Klatzkin’s view that it is too difficult to assess what conduct rises to the level of being a shoteh, a review of the various teshuvot demonstrate that the Poskim entertain the possibility of voiding the marriage by labeling a husband as “a shoteh” or “a meshuga.” Furthermore, one is clearly left with the impression that if there is basis for voiding a marriage it is on the grounds that the husband’s episodes of irrationality are overbearing to the degree that a wife cannot live with him. As Rabbi Feinstein writes:",
"Being a shoteh is a major defect as one is incapable of having intimate relations, as it is explicitly written in Yevamot 112 that our Sages did not enact legislation for a shoteh to marry, since we cannot sustain such a rabbinic enactment because a person does not live with a snake in the same cage. And therefore it is clear that a man who became a shoteh after the marriage if he can get divorced we coerce him to divorce . . . one must deem it as a mistaken transaction and void the marriage.",
"Based upon the presentation, submitted testimonies and supporting evidence, we are dealing with a husband who is incapable of having intimate relations lest he succumb to paranoia and mood swings with potential of meting out abuse, and his shoteh-like behavior occurred more than three times. Moreover, given his inability to focus, his failed start-up business and periodic sleeping during the daytime indicate a person who would be incapable of “holding a job” and therefore unable to be economically supportive of a wife, much less a family. As such, we are dealing with a mum gadol which serves as grounds to invoke kiddushei ta’ut. Notwithstanding some Poskim who reject a wife’s claim that the marriage ought to be voided based on a husband’s failure to disclose his flaw (or flaws), we are following the mesorah, tradition, which contends that failure to disclose a major defect prior to the onset of the marriage is construed as akin to a mekah ta’ut, a mistaken commercial transaction. If one sells a car without a motor and the buyer is unaware of this, we have a mekah ta’ut. Similarly, if a couple marries and the wife is unaware of a husband’s major defect such as sexual impotence, a mental disorder or a criminal past, the marriage may under certain conditions be voided based upon the notion of kiddushei ta’ut, a mistaken marriage.",
"What constitutes a mistaken transaction? As Shulhan Arukh rules:",
"Whatever the residents of a particular locale agree to term a defect in regard to an item sold, which defect shall be grounds for rescission shall in fact constitute grounds for rescission. Whatever the inhabitants of a particular locale agree is not a defect shall not be grounds for rescission unless (a right of rescission for such defect was) explicitly mentioned. For anyone who conducts business without specifying (any exceptions) he is relying upon commercial practice.",
"Given that commercial practice is determinative in defining what is a mekah ta’ut, should a defect be found in the transaction, the transaction is invalid based upon invoking the umdana, “on the understanding that the buyer is not purchasing the item” under such conditions. Similarly, in the wake of discovering a preexisting mum after the onset of the marriage, we employ an umdana of “ada’ata dehakhi lo kidshah nafshah” (loosely translated: on this understanding she did not marry him). In our issue at bar, had Sima known prior to the marriage that Shalom was bipolar she never would have married him. Rabbi Yehonathan Abelman conceptualizes this understanding as “an umdana that emerges due to a ta’ut”. In fact, numerous Poskim have explained kiddushei ta’ut as a case of Halakhah invoking an umdana, “had she known about the error, she never would have married him”.",
"Alternatively, we are dealing in marriage with an implied condition. Generally, any mistaken commercial transaction is void due to the fact we presume that the purchaser expects to buy an item devoid of a defect. As such, it is as if he stipulated a tenai, a condition, in which case it be effective based on the halakhot of tenai. Similarly, we are dealing in marriage with a tenai mutneh, an implied condition. With the husband’s failure to disclose the mum, the defect prior to the marriage, we construe this preexisting latent defect as a breach of her implied condition to the marriage.",
"Seemingly our conclusion may be challenged as contradicting the Talmudic hazakah (presumption) that she is satisfied with kol dehu (the minimum) and therefore, “tav le-meitav tan du mi-le-meitav armelu” (better to live as two than live as one), and consequently a wife will tolerate a husband’s physiological and/or character defects in order to remain in the marriage. Invoking this hazakah propels Rabbis Spektor, Posner,H. of Volozhin, Karelitz,Henkin and Waldenburg to reject the wife’s right to advance the claim that her husband failed to disclose mumim that preexisted the marriage and therefore to argue that the marriage was consummated in error. In accordance with their approach, Sima’s claim has no basis.",
"However, numerous other Poskim argue that in the event that the particular mum serves as a ground to coerce a get, then under certain conditions it may equally serve as a basis to void the marriage. In other words, depending upon the circumstances of the case the hazakah may be rebuttable. In fact , both Rabbis Feinstein and Yosef arrived at the conclusion that the hazakah is inapplicable when dealing with a husband who is a shoteh. There may be instances when a wife finds the situation intolerable and will not want to remain in the marriage and should there be grounds for coercing a get there may be equally grounds to void the marriage. Given that there are grounds to coerce a husband who is a shoteh to give a get, consequently we may entertain a wife’s plea of kiddushei ta’ut.",
"Alternatively, Shalom’s failure to disclose prior to the marriage that he suffered from a bi-polar disorder may be construed as inappropriate behavior (“ma’aseh lo ha-goon”) and is viewed as deceit. Consequently, relying upon the Rosh’s ruling, Rema rules that if a man acted inappropriately and married her in such a deceitful fashion, we coerce to give a get. Even if the defect is minor and its existence does not serve as a basis for get coercion should the failure of disclosure is viewed as an inappropriate act, we coerce the husband to give a get. Clearly, in our case, this mental dysfunction is a major defect and therefore a beit din may coerce a husband who exhibits this defect to give a get due to the fact that he acted deceitfully.",
"(2) The wife must be unaware of the defect prior to the inception of the marriage and only discover it after the marriage. On the other hand, if, for example, during the marriage a husband commits adultery or contracts Alzheimer’s, though both may be characterized as a mum gadol significantly impairing the matrimonial relationship, nevertheless since the conduct or disease respectively occurred after the onset of the marriage, there would be no grounds for a wife’s claim that the marriage was consummated in error.",
"Based upon the cumulative evidence submitted, we find that Sima only became aware of Shalom’s psychological disorder after the onset of the marriage. As Shalom’s friends testified to the panel there was a consensus that Shalom knew how to “sweet-talk” people and manipulate them. In light of his personality, in their initial interactions with him they were unaware of his psychological problems. Eventually, they became aware of his character but chose for personal reasons to refrain from communicating to Sima, Shalom’s prospective mate, his issues.",
"(3) Finally, upon a wife’s awareness of the major latent defect, she must decide to leave the marriage. Regarding this condition, whether she must immediately leave the marriage or not is subject to debate. Though in accordance with certain Poskim, upon discovery of a major latent defect one must leave the marriage immediately or refrain from remaining in the marriage for an extended period of time, nonetheless, in pursuance to Rabbi Moshe Feinstein, Dayanim E. Goldschmidt, S. Karelitz, and Y. Bavliki, and others argue that she may continue to live with him provided she offers a reasonable explanation.",
"Based upon the cumulative evidence submitted to this panel, during the first nine months of their living together, neither Sima nor her parents were aware of his psychological disorder. Having neither the background nor past experience with individuals who were mentally dysfunctional they were unable to assess the situation. In fact, even after a forty-five minute conversation with the family rabbi who had experience from interactions with many people, he was unable to discern the mental state of the personality who visited him.",
"As Rabbi Tzion Boaron, former dayan of the Beit Din ha-Rabbani ha-Gadol, insightfully observes:",
"With respect to the defect of insanity in a situation such as that before us it appears that this is certainly a case of mistaken transaction, for there is a strong presumption that no person will be reconciled to living his whole life, and to his children living their whole lives, in suffering and in fear, every day and every hour (as described above briefly).
And one cannot say that because she stayed with him for seven years and bore two children, that she saw the defect, and became reconciled to it. It is not so, for in such things a person does not clearly understand the nature of the illness until a substantial period of time has passed, for sometimes, out of love for him, she attributes his anger and his rage to tension and a passing state of nervousness, and she hopes and prays that the situation will improve. This is particularly so in relation to a person who is taking medication on a permanent basis, for then there are situations in which he is calm and quiet. And particularly, as the woman herself said, when he calmed down after each outburst, he would beg her to forgive him.
It transpires that in this case the kiddushin are precarious, both from the aspect of the presumption that a person does not become reconciled to such a defect, and that when the wife became aware of the true mental state of her husband she was not reconciled and the kiddushin are void, and also for the reason that even if she became reconciled when she became aware, according to all the above authorities, even though she was reconciled, the kiddushin are already void. Because the act was mistaken at the time of the kiddushin – for there is a clear umdana that if she had known about the illness prior to the marriage, she certainly would not have been content to marry him.",
"At the time of her marriage, Sima had no experience dealing with mentally dysfunctional individuals. Moreover, given his persona during the brief period of three months of courting, nothing triggered him to react psychotically and therefore no signs of mental dysfunction emerged which either Sima or her family observed. It was only in the last two months of their living together that it became crystal clear to Sima that he had a major mental illness and she observed him in a full manic state and therefore separated from him and requested her get.",
"Since get coercion is a halakhic option, albeit unavailable today outside of Eretz Yisrael, there are grounds to invoke kiddushei ta’ut based upon the severity of the mum, the defect as well as the deceitful conduct for failing to disclose the latent defect prior to the marriage.",
"Based upon the foregoing, we recognize that this case represents an example of kiddushei ta’ut and therefore we are voiding the marriage. Sima is permitted to remarry any Jew, even a Kohen without receiving a get from Shalom.",
"This psak din was approved by a renowned rabbinic authority.",
"Final Thoughts",
"According to the Talmud and classical Poskim, a Jewish man may marry more than one Jewish woman provided he can provide support and engage in conjugal relations with each of them. Over a thousand years ago, Rabbi Gershom Me’ohr ha-Golah passed rabbinic legislation that dramatically changed the landscape of halakhic family law for the Jewish community. Among his pieces of legislation was that a husband is proscribed from engaging in polygamy. However, some authorities have argued that this legislation was operative only until the fifth millennium (i.e. 1240 C.E.). Other authorities both Sephardic and Ashkenazic alike contend that the legislation that was passed is operative forever.",
"The Ashkenazic community continues to accept this legislation to this very day. Consequently, if a Jewish husband married a second Jewish woman without giving a get to his first wife, we are mandated to coerce him to give her a get. And Pithei Teshuvah and Otzar ha-Poskim cite numerous Poskim who align themselves with this view. Throughout the ages, a Sephardic hatan, groom under the huppah would execute an oath that he would not engage in polygamy. Even for those Sephardic Jews who were not bound by the legislation, ther were bound by oath as well as communal ordiance to support their wife until a get was given to her and may not engage in polygamy.",
"Addressing members of the Sephardic Jewish community, Rabbi Yitzhak Yosef, Sephardic Chief Rabbi in Eretz Yisrael rules that once a Sephardic Jewish male is married he is prohibited from marrying a second Jewish woman without giving a get to his first wife unless he receives permission from a recognized beit din that addressed the issue in accordance with Halakhah and secular law.",
"Based upon the foregoing, prior to having this matter addressed by a recognized beit din, there is no credence to Nitva’s claim that as a Sephardic Jew he may remarry while remaining married to the Tova’at."
]
}
}
},
"schema": {
"heTitle": "סמכות רבנית כרך ד",
"enTitle": "Rabbinic Authority IV",
"key": "Rabbinic Authority IV",
"nodes": [
{
"heTitle": "פתח דבר",
"enTitle": "Preface"
},
{
"heTitle": "חלק א",
"enTitle": "Part I; Rabbinic Authority; The Vision",
"nodes": [
{
"heTitle": "פרק א",
"enTitle": "Chapter 1; An inquiry into the interaction of the halakhic and meta halakhic argumentation of Ein Tenai be Nissu'in (Vilna, 1930)"
},
{
"heTitle": "פרק ב",
"enTitle": "Chapter 2; The propriety of certain types of prenuptial property agreements"
},
{
"heTitle": "פרק ג",
"enTitle": "Chapter 3; Breach of a promise to marry"
},
{
"heTitle": "פרק ד",
"enTitle": "Chapter 4; A parent's decision to withhold medical treatment from children; A study in competing analogies"
},
{
"heTitle": "פרק ה",
"enTitle": "Chapter 5; Corporal punishment in school; A study in the interaction of Halakhah and American law with social morality"
},
{
"heTitle": "פרק ו",
"enTitle": "Chapter 6; Child Custody; A Comparative Analysis"
},
{
"heTitle": "פרק ז",
"enTitle": "Chapter 7; A man receives an improper heter nissuin (halakhic permission to remarry) without giving his first wife a get; Relief via the execution of a \"get zikui\""
}
]
},
{
"heTitle": "חלק ב",
"enTitle": "Part II; Rabbinic Authority; The Reality",
"nodes": [
{
"heTitle": "פרק ח",
"enTitle": "Chapter 8; Case studies dealing with a wife's claim for bittul kiddushin",
"nodes": [
{
"heTitle": "הקדמה",
"enTitle": "Introduction"
},
{
"heTitle": "א",
"enTitle": "a) The validity of the marriage of a Jewish woman to a mumar, an apostate"
},
{
"heTitle": "ב",
"enTitle": "b) A husband who is infected with HIV"
},
{
"heTitle": "ג",
"enTitle": "c) A husband with an inability to copulate"
},
{
"heTitle": "ד",
"enTitle": "d) A husband who suffers from a delusional jealousy disorder and engages in spousal rape"
},
{
"heTitle": "ה",
"enTitle": "e) A husband who engages in spousal rape, refrains from supporting his wife, emotionally abuses his wife and stepchildren and remarries without giving a get to his wife"
},
{
"heTitle": "ו",
"enTitle": "f) A husband who engages in pedophilia with his two stepdaughters"
},
{
"heTitle": "ז",
"enTitle": "g) A husband who is a batterer"
},
{
"heTitle": "ח",
"enTitle": "h) A husband who has a bipolar personality disorder"
}
]
}
]
}
]
}
}