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+{
+ "title": "Rabbinic Authority I",
+ "language": "en",
+ "versionTitle": "merged",
+ "versionSource": "https://www.sefaria.org/Rabbinic_Authority_I",
+ "text": {
+ "Foreword": [
+ "In referring to the highest level of truth finding in a judicial proceeding, our Sages use of the phrase, “Ha-dan din emet la-amito.” What is being conveyed here is that knowledge of the law is not sufficient to render a verdict of truth. In order for the dayan to arrive at the correct verdict, the precise facts of the case must be discovered as well.",
+ "A beth din panel is not only thoroughly versed in the relevant halakhot, but is also well-equipped by virtue of educational background and professional work experience to grasp the reality on the ground. This entails a relentless commitment to relevant fact finding, taking nothing at face value, and understanding the implications of the facts for the commercial behavior of the parties.",
+ "A second characteristic of the halakhic-judicial process dealing with monetary matters consists of the documentation that must accompany the verdict that the panel hands over to the litigants at the conclusion of the proceedings. The claims of the plaintiff, as well as the respondent’s rebuttals and counterclaims, are meticulously recorded. Next, a thorough discussion of the issues from a halakhic perspective is presented. Finally, the verdict is rendered, and this verdict is demonstrated to have flowed from the halakhic discussion.",
+ "R. Dr. A. Yehuda Warburg has assumed a vital role in implementing this vision of a “double level” of truth in the Beth Din of America and on other panels. In the present work, Rabbinic Authority: The Vision and the Reality, R. Warburg presents a number of his judicial rulings. What stands out in these decisions is the halakhic framework, legal perspective, and “reasoned opinions” R. Warburg sets up to support his decisions.",
+ "For a number of decades, I have been involved on an ad hoc basis as a dayan, including serving on judicial panels for the Beth Din of America. In this capacity, I have often crossed paths with R. Warburg and served together with him on the same judicial panel. In each panel we served on together, R. Warburg’s outstanding Torah scholarship was always in evidence, scholarship motivated by a perfectionist’s drive to achieve new vistas in advancing the “double dimension” of truth that stands as the ideal for the halakhic-judicial process.",
+ "R. Dr. Aaron Levine, z”l",
+ "19 Adar 1, 5771",
+ "February 23, 2011"
+ ],
+ "Preface": [
+ "The present volume is intended as an introduction to a subject unfamiliar to many – rabbinic authority as reflected in our halakhic sources. Its subtitle – “The Vision and the Reality” – indicates the two perspectives from which we will approach this topic.",
+ "In discussing the halakhic “vision” of rabbinic authority, we will address a number of questions. How does Halakhah (Jewish law) envision rabbinic authority? What are the credentials for being a rabbinic authority? What is the difference between a rabbi who is “an authority” and one who is “in-authority”? What is the status of a congregational rabbi? How does a rabbi arrive at a halakhic decision? Is a rabbi bound to follow the opinions of his predecessors, or may he choose to render his own independent opinion? Under what conditions can he choose to issue his own judgment?",
+ "The author of Sefer Ha-Arukh, the first halakhic lexicon, defines Halakhah concisely:",
+ "Something that travels from the beginning of time until the end, or the path that the Jewish community walks.",
+ "Halakhah embodies the traditions transmitted throughout the generations; it is the path that the Jewish People have chosen to follow. But how wide is that path?",
+ "John Stuart Mill, the father of modern liberalism, famously claimed:",
+ "The only purpose for which power can be exercised over any member of a civilized community, against his will, is to prevent harm to others.",
+ "Does Halakhah endorse such a perspective, which would lead “socially harmless” matters to the individual conscience, even when it comes to business affairs?",
+ "This question leads us to many others. Are directors and employees in the corporate world halakhically and/or legally accountable for all their decisions? Should a halakhic arbiter or a civil court defer to a decision rendered by an employee or director, or should we scrutinize the propriety of their decision? To answer these questions, we will examine how two different legal systems – Halakhah and American law – approach the application of the business judgment rule in the profit and not-for-profit corporate world.",
+ "The final component of my discussion of the “vision” of rabbinic authority is an attempt to solve a particularly vexing problem faced by the contemporary Jewish court in some cases of divorce – the problem of one spouse refusing to execute a get, a bill of Jewish divorce. Coercing a recalcitrant spouse to grant a get results in a get me’usah, a forced get, which is invalid. In this volume, I present a viable halakhic solution to this problem in an expanded version of an article that originally appeared in the Jewish Law Annual (vol. 18), entitled, “Recovery for Infliction of Emotional Distress: Toward Relief for the Agunah.” Our contribution is an attempt to invoke the halakhot of nezikin (monetary damages for injury caused) to reduce the problem of “chained spouses” in our community.",
+ "The “reality” of rabbinic authority presented in this volume deals with one type of that authority – the Jewish court, or beit din. As members of our covenant-faith community, we are obligated to resolve our differences in a beit din rather than resorting to litigation in civil court. The parties who appear before a beit din sign a shtar borerut (arbitration agreement) that empowers the panel of dayanim to resolve the matter in contention according to the norms of Halakhah. Assuming the beit din process and its decision comply with the rules of secular arbitration law, the judgment will be enforceable in a competent civil jurisdiction in the United States.",
+ "Interestingly, as central as the beit din system is in vision and reality, it is an institution whose workings and contributions to the “path of Halakhah” are largely unknown to most segments of the Jewish community. One of the primary reasons for unfamiliarity with the beit din can be traced back to a Mishnaic ruling:",
+ "Upon finishing their deliberations, they would bring the litigants back to the courtroom, and the senior member of the panel would state: Mr. X, you are acquitted, and Mr. X, you are liable.",
+ "A review of relevant passages in the Talmud and rulings throughout the ages and until today demonstrates that Jewish courts generally took this Mishnaic ruling to heart, limiting their decisions to identifying the innocent and responsible parties, but not offering much in the way of reasoning. However, prior to a beit din’s psak din (final decision), a litigant may request that the panel provide a reasoned opinion if he is concerned that one or more of the judges are ignorant of a relevant halakhah or that they are biased in some way. According to some authorities, this is true not only of a standing beit din that requires litigants to appear before them regarding a contentious matter, but also when the beit din is an ad hoc panel, known as zabla (“zeh borer lo ehad” – “one chooses one”).",
+ "Maharah Or Zarua and Havot Ya’ir are of the opinion that each and every dayan should provide the grounds for his decision. In our day especially, many litigants question a dayan’s credibility, halakhic expertise, and/or business acumen; therefore, if at all possible, a reasoned opinion should be forthcoming.",
+ "Due to the fact that halakhic court procedure does not mandate the issuance of a reasoned opinion, however, contemporary dayanim have generally refrained from submitting reasoned judgments. Nevertheless, certain dayanim who sit on the Beth Din of America in New York City and others who serve in the Israeli beit din networks under the aegis of Israel’s Chief Rabbinate and Eretz Hemdah-Gazit have done so.",
+ "During the last thirteen years, I have served as a dayan on the Beth Din of America and appeared on various zabla panels as well as a single arbitrator for the Hassidic, Modern Orthodox, Sephardic, and yeshiva communities in the New York-New Jersey metropolitan area. In numerous instances, I have rendered reasoned opinions in commercial matters and domestic relations. Among other matters, these decisions touch on issues of employment termination and severance awards, partnership dissolution, the validity of minhag ha-soherim (commercial practice), civil law, contractual agreements and preliminary agreements, the interpretation of contracts, the principle of indemnity in insurance law, recovery of economic loss of funds, consequential damages, lease, construction, and loan agreements, self-dealing in non-profit organizations, and copyright infringement. In addressing family matters, I have dealt with the grounds for issuing a divorce judgment, dividing up marital assets upon divorce, spousal support, child support and placement, filial obligations to one’s parents, and yerushah (inheritance) issues, such as guidelines for drafting a halakhic will and the validity of a civil will and a trust agreement.",
+ "The cases chosen for this volume cover the range of subjects characteristic of all modern legal systems – dinei mamonot (civil matters), public and administrative law, family law, and philosophy of law. Given that Halakhah is a religious legal system, the impact of issur ve-heter (ritual law) upon the monetary issues under investigation is equally dealt with in our judgments.",
+ "In this volume, I have included ten presentations inspired by reasoned opinions handed down as a member of a beit din panel. Two of these, dealing with drafting a halakhic will and labor relations, are expanded versions of my decisions that have recently appeared in the journal Hakirah (vols. 10 and 12). In each presentation, I offer a rendition of the facts of the case, followed by the claims of the Tove’a (plaintiff), the reply of the Nitva (defendant), and any counterclaims. Subsequently, there is a discussion of the halakhic issues emerging from the parties’ respective claims and counterclaims, 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.",
+ "It is my hope that this collection will educate our community to the parameters and scope of rabbinic authority in general and the institution of the beit din in particular.",
+ "My appreciation to the publisher of Urim Publications, Tzvi Mauer. I offer my best wishes that the passion and sense of mission he brings to his calling to disseminate Torah scholarship will continue to be crowned with great success.",
+ "My thanks is given to Michal Alatin and Batsheva Pomerantz of Urim Publications for their expertise and technical skill in preparing my book for publication.",
+ "A. Yehuda (Ronnie) Warburg",
+ "20 Tevet 5773",
+ "January 2, 2013"
+ ],
+ "Part I; Rabbinic Authority; The Vision": {
+ "Chapter 1; Towards Defining the Concept of Rabbinic Authority; A Contemporary Analysis": [
+ "Towards Defining the Concept of Rabbinic Authority: A Contemporary Analysis",
+ "Mary Ann Glendon, a law professor at Harvard University and an astute observer of the interaction of law and social mores, observes:",
+ "The American rights dialect is distinguished by not only what we say and how we say it, but also what we leave unsaid. Each day’s newspapers, radio broadcasts and television programs attest to our tendency to speak of whatever is most important to us in terms of rights, and to our predilection for overstating the absoluteness of the rights we claim. Our habitual silences concerning responsibilities are more apt to remain unnoticed.",
+ "Whereas American society places an emphasis on rugged individualism and individual rights, from a halakhic perspective, the mission of man – and equally of the Jew – focuses upon duty, compliance with a divine norm. Thus, R. Dr. Joseph Soloveitchik writes:",
+ "Natural man, moving straight forwards, comes suddenly to a stop, turns around, and casts as an outsider, a contemplative gaze upon his environment … He discovers an awesome and mysterious domain of things and events which is independent of and disobedient to him, an objective order limiting the exercise of his power … In the wake of this discovery, he discovers himself. Once self-discovery is accomplished, and a … I-awareness of an existence which is limited and opposed by a non-I outside emerges, something new is born – namely the divine norm … “And the Lord God commanded the man” … Man attains his unique identity when, after having been enlightened by God that he is not only a committed but also a free person, endowed with power to implement his commitment, he grasps the incommensurability of what he is and what he is destined to be.",
+ "Thus, in contrast to the habitual silence in American society regarding legislating morality except to avoid the infliction of harm, a committed Jew must develop a more expansive notion of obligation vis-à-vis God and his fellow-man based upon fulfillment of divine commandments.",
+ "Furthermore, being a liberal-democratic society, legal authority in American life has been seen as appropriate for the public square, but limited in the private realm. An American inquires of a lawyer about his rights and their infringement. A committed Jew, by contrast, must seek to understand his obligations, which extend well beyond “negative rights,” his right of protection against individual and governmental intrusion.",
+ "How does one discern one’s halakhic obligations? In the words of the Torah itself, “What does the Lord thy God ask of you?” Most committed Jews, even well-educated ones, will not be able to answer this question on their own. Rather, we are told, “Establish a rabbi for yourself and avoid doubt.” Who is the rabbi in question, and what are the parameters of his authority? In this essay, we will focus on the varying approaches in which the halakhic tradition, in particular post-Talmudic sources, has grappled with these questions.",
+ "This essay seeks to map and depict the main functions and normative meanings that encompass the concept of rabbinic authority. Other than a handful of dogmatic and historical descriptions, there have been very few attempts to focus upon the post-Talmudic sources that address this topic. Although some of the sources that will be analyzed have historical implications, we are concerned in developing a conceptual framework based upon the sources that have been assigned normative value by the halakhic system.",
+ "1. The Parameters of “Lo Tasur”",
+ "The Torah states that a member of the Jewish community who has a doubt regarding a point of Halakhah is obligated to seek halakhic counsel and abide by the ruling of the court:",
+ "If there is a matter too hard from you in judgment, between blood and blood, between ruling and ruling … subjects of controversy within your gates; then you shall arise and go up to the place that God will choose. And you shall come to the … judge who shall be in those days, and inquire, and they shall render the words of the judgment. And you shall follow according to the sentence which they declare to you from that place which God shall choose and you shall observe to do according to what they instruct you. According to the law which they shall instruct you and according to the judgment which they shall tell you, shall you do. You shall not deviate (lo tasur) from the word they shall tell you, neither to the right nor to the left.",
+ "The Talmud explains that the “place that God will choose” refers to the Great Sanhedrin, which met in the lishkat ha-gazit on the Temple Mount in Jerusalem. Accordingly, the commandment of “lo tasur,” “you shall not deviate from the word they shall tell you,” is limited to the judgments and interpretations of Halakhah as rendered by the Sanhedrin ha-Gadol. Many decisors – among them Rambam, Ramban, Rivash, R. Yehuda ha-Levi, and Ran – thus conclude that the prohibition does not apply to decisions handed down by lower courts or by independent rabbinic authorities.",
+ "The Sefer ha-Hinukh, however, suggests otherwise:",
+ "As for the obligation given to us to obey the words of our ancient Sages, our great authorities in the wisdom of the Torah, and our judges in our generation, it is in effect everywhere, at every time.",
+ "Similarly, Rashba writes:",
+ "We must listen to one of the Rishonim [early rabbinic authorities], provided that he is a scholar that one can rely upon … We must listen to the scholars of every era, as it is written: “And to the judge that will be in those days,” even if they tell you that right is left …",
+ "According to Sefer ha-Hinukh and Rashba, the positive commandment of “adhering to what they teach and rule” and the prohibition of “lo tasur” apply to all rabbinic leaders in every generation, not only to the Sanhedrin ha-Gadol.",
+ "Ran concurs with the opinion that there is an obligation to adhere to the halakhic decisions of the arbiter in every community and in every generation, but he invokes a different source for the requirement:",
+ "How do we know that we are obligated to comply with the decisions of the scholars in every generation? The answer is that the Biblical verse states, “Follow the majority.” This is a general warning to follow Torah judgments [based upon the consensus of the majority of scholars].",
+ "The common denominator of both approaches is the requirement for an individual to choose a rabbinic authority and adhere to his rulings. While some authorities maintain that there is an obligation that mandates compliance with decisions of a rabbinic authority in every generation, others maintain that there is no religious duty to comply with a decisor’s ruling unless he was a member of the Sanhedrin ha-Gadol. According to the latter view, once an authority has been accepted, his decisions become binding, but a violation thereof does not entail contravention of a biblical imperative.",
+ "Translating this controversy into the conceptual scheme of authority elucidated by Richard T. De George is quite instructive. George distinguishes between two types of authority – imperative/executive and epistemic. Whereas an imperative authority has the right or power to act and expect compliance to his orders, an epistemic authority is an authority in a field of knowledge, but he does not possess any right to command:",
+ "A person is an epistemic authority if he is considered an authority by another or by others with respect to some field or area of knowledge. Thus, X is a … epistemic authority if there is some Y who considers X an authority for Y in some realm … For Y to consider X a … epistemic authority for Y means that at least under certain conditions and at least to some extent, Y is willing to believe what X says in R …
Imperative authority involves the right or the power of some bearer … to command someone who is subject to authority to act or to forbear from acting in certain ways.",
+ "Essentially, an imperative authority is “in-authority,” while an epistemic authority is simply “an-authority.” The halakhic positions regarding the nature of rabbinic authority can be described accordingly.",
+ "The view that limits the purview of “lo tasur” to the judgments of the Sanhedrin ha-Gadol views all other rabbinic authorities as examples of epistemic authority. It is only upon the questioner’s acceptance of the authority’s spiritual hegemony that his status as “an-authority” is transformed into one of “in-authority.” Thus, R. Moshe Soloveitchik maintains that a decisor who does not have the status of being ordained (semikhah) is",
+ "essentially a reference guide, providing reliable information about what the tradition and its sources, properly understood and interpreted, state; but it is they, rather than he, that bind authoritatively.",
+ "Those who either extend the purview of “lo tasur” or invoke other obligations to accept rabbinic decisions throughout the generations view these rulings as an exercise of imperative authority. Upon acceptance of their authority, their rulings become binding upon the inquirer.",
+ "2. The Mara De-Atra",
+ "Rambam describes the extent of rabbinic authority in the following fashion:",
+ "If a court established in any country after the time of the Talmud made decrees and ordinances or introduced customs for those residing in its particular country or for residents of other countries, its enactments did not gain the acceptance of all Israel because of the remoteness of the Jewish settlements and the difficulties of travel. And as the court of any particular country consisted of individuals [whose authority was not universally recognized], while the Supreme Court of seventy-one members had, several years before the compilation of the Talmud, ceased to exist, no compulsion is exercised on those living in one country to observe the customs of another country; nor is any court directed to issue a decree that has been issued by another court in the same country. So too, if one of the Ge’onim taught that a certain way of judgment was correct, and it became clear to a court at a later date that this was not in accordance with the view of the Gemara, the earlier authority is not necessarily followed, but the view is adopted which seems more reasonable, whether it be that of an earlier or of a later authority. The foregoing observations refer to rules, decrees, ordinances, and customs that originated after the Talmud had been compiled. But whatever is already mentioned in the Babylonian Talmud is binding on all Israel.",
+ "Although Rambam writes specifically about the judicial independence of the Jewish court, R. Joseph Karo notes that his conclusions equally apply to all authorities who are interpreters and arbiters of Halakhah – both the courts and independent arbiters have accepted to be subservient to the rulings found in the Mishnah and Talmud.",
+ "The authority of the Talmud Bavli stems from its acceptance by the Jewish community, as its Sages comprised the total or the majority of the scholars of Israel, and the chain of tradition from them to Moses was never broken. Rambam is quick to note that embarking upon “the sea of the Talmud” and delving into its difficult formulations requires education and skills. Consequently, it is no wonder that after its compilation, divergent interpretations of this corpus were to be found among the dayanim and decisors throughout the various communities.",
+ "Decentralization of the Jewish community coupled with an acute need to resolve halakhic indeterminacies were factors in the emergence and proliferation of rabbinic authorities who made decisions for particular Jewish communities. Such rabbinic personalities were referred to as the “mara de-atra,” literally, the “master of the place.” Upon acceptance of his authority, his rulings are authoritatively binding upon the members of his community. Briefly sketching this role, Professor Aharon Kirschenbaum observes:",
+ "Traces of such rabbinic authority … for the inhabitants of a limited geographic area may be found among the Tanna’im. Thus, although his colleagues limited the suspension of Sabbath restrictions to the circumcision itself, “in the place of R. Eliezer they used to cut wood [on the Sabbath] to make charcoal in order to forge an iron instrument.” R. Eliezer held that all necessary requisites for the circumcision … superseded the Sabbath prohibition. Hence, even the charcoal necessary for the forging of the circumcision knife was permitted to be prepared. Although R. Eliezer was overruled by the other Tanna’im, his position was accepted as valid “in his place.”
Similarly, R. Jose the Galilean’s opinion that the cooking of the flesh of fowl in milk was totally permitted was rejected by his colleagues … Nevertheless, the Talmud states that, “in the place of R. Jose the Galilean, they used to eat fowl’s flesh cooked in milk” …
On the basis of these Tannaitic precedents, the Amora’im ruled that the opinion of the mara de-atra was binding on the atra even where it was in opposition to the normative Halakhah. For example, there is a well-known dispute in the matter of muktzah, wherein R. Simeon rejected the rules of muktzah as we know them. Although R. Hamnuna agreed with R. Simeon, he excommunicated a certain disciple who gave a practical decision in accordance with R. Simeon’s position. He did so because the disciple had made that decision in an area that was within the jurisdiction of Rav. Since Rav opposed R. Simeon’s position, the disciple should have acted accordingly. Thus, the Talmud defends the excommunication declared by R. Hamnuna even though the latter agreed with the substance of the disciple’s decision. The respect due Rav, the mara de-atra, was overriding. ",
+ "Even if a mara de-atra follows a minority view – even if he permits something that according to others is biblically prohibited – his ruling must be followed by the community.",
+ "At first glance, this seems to conflict with the most basic principle of halakhic decision-making, “aharei rabbim le-hatot,” the rule to follow the majority. However, as various decisors note, the application of that rule is limited to resolving issues within the confines of a moshav beit din, judicial proceedings. Since a mara de-atra’s ruling is a resolution of a controversy among decisors, outside of a moshav beit din, the command to follow the majority view is inapplicable, and his position, although reflecting a minority view, becomes binding upon the members of the community, whether it reflects a stringent or lenient opinion.",
+ "Did this model of rabbinic authority persist beyond the Talmudic period? R. Joseph b. David ibn Lev (Maharival), a sixteenth century posek (decisor) from Salonika, writes:",
+ "It was only during those days [the Mishnaic and Talmudic periods], when in every city there was a rabbi who would instruct them … that in every city they were obligated to honor their teachers. However, in these times, in all these matters our decisors and our rabbinic scholars from whose waters we drink are our rabbis …",
+ "Whereas the mara de-atra was once the binding authority in all matters of Halakhah, we are now privileged to have many rabbis, and we must thus refrain from adopting one binding authority. Should there be a difference of opinion amongst the rabbis, the typical decision-making rules, such as following the majority, must facilitate the resolution of the matter. A community is authorized to appoint a mara de-atra only to resolve monetary issues, regarding which one may make stipulations contrary to what is written in the Torah.",
+ "Maharival’s position reflects a minority view, however; the role of the mara de-atra persisted well after the compilation of the Talmud. R. Dr. Yitzhak Z. Kahana lists numerous communities throughout medieval and modern Jewish history who chose to follow the rulings of various authorities, the mara de-atras of these communities. As in Mishnaic and Talmudic times, communal acceptance was the grounds for legitimating the binding authority of the mara de-atra.",
+ "Thus, a communal enactment evidently promulgated in fourteenth century Spain addressing a dispute between a husband and wife states:",
+ "The community in which she lives … agreed and enacted that in all their laws and legal controversies, they will follow the books of Rambam, of blessed memory, in regard to everything that is written in them concerning matters of ritual law, monetary matters, marriage … and divorce.",
+ "The communal enactment obligated members of the community to follow Rambam’s rulings in certain designated areas of Halakhah. Being selective regarding which matters are under the purview of a mara de-atra is thus permissible.",
+ "Five hundred years later, R. Samson Raphael Hirsch responded in uncompromising terms to a “guest rabbi” who directed R. Hirsch’s congregation to rebel against their mara de-atra’s teachings:",
+ "The members of the Jewish community, who accepted a scholar as a rabbi and spiritual guide, have obligated themselves to heed his instructions regarding all communal matters dealing with the individual as well as regarding the community, in particular, given that this has been established in the communal enactments that he is the exclusive decisor to resolve communal matters …
But his honor, who is a foreigner to our city, did not refrain from interfering with my communal matters, having been appointed to be the rabbi and chief justice [av beit din], and he refused to abstain from persuading members of my community to rebel against my ruling, telling them that my ruling is not a ruling, and he did not refrain from publicizing his view in a newspaper …",
+ "Clearly, for hundreds of years, various communities were guided by their respective mara de-atras.",
+ "In effect, community consensus regarding the appointment of a mara de-atra resulted in a spatial division of authority. In many instances, there could be various communities in the same locale practicing divergent halakhic behaviors. At first glance, this diffusion of authority among two communities in the same town seems to violate the injunction of “lo titgodedu,” which the Sages interpreted to refer to a prohibition against creating factions in the same community. It is possible that just as two different courts in the same locale may issue contradictory decisions resulting in divergent behaviors in the same place, two communities in the same town are entitled to abide by different mara de-atras who may issue different rulings; neither mara de-atra has jurisdiction over the adherents of the other. Alternatively, it is possible that the prohibition against factionalism refers to teaching others to follow one’s practices when one authority advocates one position and the other demurs. Since two communities living side by side are simply practicing rather than exhorting others to follow their behavior, the prohibition is inapplicable.",
+ "The institutional legitimatization of halakhic pluralism poses great challenges in the modern State of Israel. Given the differing traditions of the Ashkenazic and Sephardic communities, how is halakhic practice to be structured for the citizenry? Ought the goal be to establish uniformity of practice or to promote communal diversity? Is either goal attainable at present? While some have advocated the need to maintain halakhic diversity, others argue that the mara de-atra(s) of the Land of Israel ought to be Rambam and/or R. Karo.",
+ "What is the scope of the mara de-atra’s authority? Which members of the community create it? Is every member of the community duty bound to ask their questions of the mara de-atra? Is an individual who joins the community subsequent to the communal acceptance of the mara de-atra obligated to ask him his questions and abide by his judgments? Some argue that given that the election of the mara de-atra was executed via a communal enactment, the norms of takanot ha-kahal, communal enactments, are applicable. Because such enactments are passed upon majority rule of its members or its representatives, even the minority must comply, and the legislation binds even individuals who have yet to permanently reside in the locale. The mara de-atra is “in-authority” for all these individuals.",
+ "Alternatively, the mara de-atra is granted authority only over those who accept him upon themselves. R. Shaul Yisraeli observed in 1966:",
+ "The majority of the public in Israel has accepted the Chief Rabbinate as its rabbi … It follows that the Chief Rabbinate enjoys the status of “the local master” throughout Israel and its local rabbis act only as its agents.",
+ "R. Yisraeli concludes that segments of the Israeli populace who have not accepted this authority are free to follow their own decisors. If an individual chooses to accept the mara de-atra’s authority, he is bound by his teachings; should he decline to do so, he may choose another decisor.",
+ "Accordingly, those who disagreed with the election of the mara de-atra or moved to the locale only after his installment may freely choose to follow a different recognized authority. However, the dissenting individual is no different than any visitor who arrives in the town, who must refrain from any public behavior that contradicts specific rulings of the mara de-atra.",
+ "According to both schools of thought, the binding nature of a mara de-atra’s rulings is based upon communal acceptance, either actualized through the adoption of a communal enactment or the execution of a “ketav rabbanut,” a rabbinic contract. Consequently, an individual who agrees and subsequently reneges on his commitment is viewed as someone who makes an oath not to be bound by a communal enactment, a meaningless oath that is therefore in vain and in violation of a biblical commandment. Moreover, according to some authorities, he has violated the biblical prohibition of “lo tasur.”",
+ "In short, “an-authority” is transformed by the community into a mara de-atra who is “in-authority.” His rulings are therefore biblically binding in all public matters, such as marriage, divorce, liturgical practice, kashrut standards, and eruvin, as well as personal matters, such as monetary obligations, interest, theft, and Shabbat and Yom Tov regulations.",
+ "Furthermore, a mara de-atra’s decision that is grounded in a minority view has been characterized as “akin to being of biblical status” and “like Halakhah le-Moshe mi-Sinai,” traditions from Sinai regarding which there is unanimity.",
+ "Given the stature assigned to the mara de-atra, as we will demonstrate in the latter portion of our presentation, he must exhibit piety (yirat Shamayim), possess a proficiency in Talmudic and post-Talmudic scholarship, and have honed skills in analogical reasoning and rendering decisions. Although a mara de-atra has great authority over his constituents, it is not unlimited. If it is clear that the mara de-atra is in error – if he made a “ta’ut be-devar mishnah” (a mistake in black-letter Halakhah), or permitted the forbidden, one is not obligated to follow his directive. R. Zerahiah ha-Levi (Ba’al ha-Ma’or) states that if the arbiter awarded an item to one party in a dispute and it was later revealed that the decision was in error, the decision is reversible and the other party must be reimbursed for his loss:",
+ "Since it was an error in a matter of a mishnah, he [the litigant] should have been aware of the error and should not have relied upon the arbiter and executed the decision. Rather, he ought to have inquired and uncovered the error. This is as clear as “a clear mishnah.” Hence, the party was negligent.",
+ "In other words, even if one receives a psak from one’s rabbi, it is the individual’s responsibility to understand the reasons for the ruling. If he fails to do so and therefore follows an incorrect ruling, the halakhic system labels him a “poshei’a,” a negligent person. “Emunat hakhamim,” faith in the wise, does not entail, at least in this context, blind obedience.",
+ "3. A Deceased Mara De-Atra",
+ "In an often-cited and widely accepted teshuvah (responsum), R. Shlomo ben Aderet (Rashba) succinctly describes the role of the mara de-atra:",
+ "If there is one rabbi in their location who has taught them, they should follow his opinion … The same is true of those who have customarily acted according to one of the great authorities, as in a place in which they invariably follow the rulings of R. Alfasi or Rambam, for they have adopted these great decisors as their own rabbi. ",
+ "According to Rashba, the mara de-atra of a community may already be deceased, as Rif and Rambam were when he penned this teshuvah. A community may either choose to accept the jurisdiction of a contemporary authority or rely on an earlier mara de-atra for rendering decisions. Even though these rabbinic authorities may never have lived in this place and are no longer living, the community practices the custom (“keivan she-nahagu”) to abide by their decisions.",
+ "Concurring with Rashba’s position, R. Nissim ben Yosef Mizrahi (eighteenth century Turkey) states:",
+ "Even though Alfasi and Rambam were not the mara de-atra in that place, since in all actions the community follows their words, Alfasi and Rambam are considered their rabbis and mara de-atras, even though their net was not spread over the place.",
+ "Obviously, a community’s choice to accept a mara de-atra who is no longer living presents formidable challenges. Since many members of the community are likely neither knowledgeable nor conversant regarding their mara de-atra’s rulings, a scholar would have to be elected to transmit those teachings. Thus, in one of the dozens of communities that have accepted Rambam’s authority in halakhic matters, the scholar would require broad knowledge of Rambam’s Mishnah Torah, commentary on the Mishnah, and responsa. In order to fully comprehend Rambam’s rulings, the scholar would also of necessity need to be able to unearth Rambam’s Talmudic and Geonic sources. Moreover, since the community would be posed from time to time with questions that were never addressed by Rambam, the scholar would also need the erudition to deliver pesikah that would either optimally “follow in Rambam’s footsteps” or be rooted in the teachings of others. Operating within the context of abiding by the judgments of a deceased rabbi, of course, is no small feat.",
+ "What is the justification for relying on an authority who is no longer alive to serve as a community’s mara de-atra? In the Tannaitic and Talmudic periods, dispute resolution demanded the expertise of a rav (rabbi), and his disciples were proscribed from issuing decisions in his presence. In post-Talmudic times, however, the norms governing the teacher-student relationship were abrogated. As R. Moshe of Evreux, a twelfth century Tosafist, explains:",
+ "From the time the Jewish people was exiled from its land, when our Temple was destroyed … the law that reverence for a teacher must be like reverence for God no longer applies, and all the rules regarding the relationship between disciple and master are abrogated. This is because the books, the treatises, and the commentaries are our masters, and everything depends on intelligence and logic.",
+ "While this change led to attenuated or nonexistent personal ties between teachers and students, reliance upon “the books rather than scribes” (“mi-pi seforim ve-lo mi-pi soferim”) expanded the sources for rabbinic decision-making. Many communities chose to abide by the decisions of rabbinic arbiters of yesteryear, such as Rif and Rambam – “mi-pi seforim.”",
+ "Despite the fact that Rashba accorded the status of mara de-atra to authorities who are no longer alive, he notes:",
+ "If there is one rabbi who has taught them, they should follow his opinion … If there be a scholar qualified to rule on Halakhah who adduces a proof to prohibit what they [Rif and Rambam] have permitted, one should prohibit, since they are not truly like their own rabbis. For if they do not abide by the opinion of the rabbi in their own locale, this would be disrespectful.",
+ "Rashba (and others) introduce a caveat that the rule of halakhic subservience only applies to a mara de-atra out of concern for his honor and in deference to his rulings. Since these concerns are inapplicable to a decisor who is no longer living, if a scholar marshals proofs to prohibit a matter against the mara de-atra’s opinion, the scholar’s judgment may become binding. Upon the demise of a mara de-atra, it is permissible for another posek to overturn his rulings.",
+ "A case in point is the nuanced approach of a number of 16–17th century Egyptian-Israeli authorities to the rulings of Rambam. R. David ibn Zimra (Ridbaz), for example, accepted Rambam as the mara de-atra of Egypt; nevertheless, in certain instances, Ridbaz’s autonomous judgment prevails. Similarly, R. Ya’akov Castro (Maharikash) and R. Avraham ha-Levi (Ginat Veradim) exhibit a gravitational pull to Rambam as the mara de-atra of Egypt, yet remain innovative in many of their own rulings. As we will see, this navigation between the poles of deference and autonomy is characteristic of halakhic methodology in general and to the decisor’s relationship with a deceased mara de-atra in particular.",
+ "To buttress his conclusion, Rashba invokes the Talmud’s account of Rabbah bar Hanna’s practice when he visited Bavel (Babylonia). While there, he ate fat that the Sages of the Land of Israel had declared permissible, but which had been prohibited by the Sages of Bavel. R. Ashi explained that since Rabbah had intention to return to the Land of Israel, he was permitted to consume this fat; one must follow the practice of the place where he permanently resides, whether that practice is lenient or strict. Since the “minhag ha-makom,” the local custom, in the Land of Israel was to follow the lenient view, Rabbah was compelled to follow it as well. Had he decided to permanently relocate to Bavel, he would then have been exempt from all of the communal enactments of his former locale, unless these enactments also existed in his new residence.",
+ "Rashba concludes that just as minhag ha-makom determines proper practice in cases of issur ve-heter (ritual Halakhah) in cases in which there is a difference of opinion, it is similarly the deciding factor in dealing with communities guided by a mara de-atra. Just as Rabbah heeded his mara de-atra’s ruling, members of any community are obligated to adhere to their mara de-atra’s decisions, even in the face of contrary ruling by a qualified authority. If, however, the community appoints an authority that is no longer alive as its mara de-atra, one can no longer speak of “his place.” A qualified authority is thus entitled to overrule the mara de-atra’s view.",
+ "If a duly elected mara de-atra subsequently dies, R. Dovid Gershon (seventeenth century Egypt) concludes that his rulings are still binding upon the community, even if other recognized authorities disagree with his view. In effect, the notion of minhag ha-makom remains operative even after the mara de-atra is no longer alive. Other authorities, such as R. Yeshayahu de-Trani (Shiltei ha-Gibborim) and R. Yosef ibn Ezra (Massa Melekh), concur with this conclusion.",
+ "Others, however, including R. Yoel Sirkes (Bah), R. Hezekiyah De Silva (Peri Hadash), and R. Yosef ben Moshe ha-Levi (Mateh Yosef), argue that a mara de-atra’s decisions must be followed by members of a community residing within his geographical location only during his lifetime. Should the community desire to continue to follow the mara de-atra’s teachings after his death, the community would have to reaffirm him as their mara de-atra. Otherwise, the rulings of a new mara de-atra may become binding upon the community or those of a recognized decisor may become binding upon individuals. ",
+ "This latter position affirms the critical role that the community plays in the establishment of obligatory halakhic compliance with the rulings of the mara de-atra. But what is the nature of that authority? Do the mara de-atra’s rulings govern the community members of a particular locale or the locale itself? For example, if a community was disbanded due to war or expulsion and Jews repopulate the area years later, are they bound to the rulings of the previous mara de-atra based upon minhag ha-makom, even if the mara de-atra’s community no longer exists? Do we insist that kavod ha-rav necessitates that we defer to the mara de-atra’s view, even in the absence of his constituency, or is minhag ha-makom solely a function of the presence of the kahal, the community?",
+ "Both Shiltei ha-Gibborim and R. Avraham Gombiner (Magen Avraham) address this question, but they fail to resolve it. Hok Ya’akov, however, concludes that if “new faces” have arrived in a locale bereft of a community, they are free to choose their own rabbinic authority. Accordingly, Hazon Ish rules that since the original community headed by R. Yosef Karo no longer exists in Israel, residents of contemporary Israel need not abide by R. Karo’s rulings. If a community relocates to an inhabited place and maintains its independence, it retains the practices of its former place rather than adopting the minhag ha-makom. By extension, if a kahal relocates to a locale that has lost its Jewish populace, it may retain its own practices.",
+ "What happens if two communities with different traditions simultaneously populate a locale or a community joins an already established community with a different tradition? Addressing Eretz Yisrael and Iberian communities which were simultaneously established in the Ottoman Empire, R. Karo allowed each one to retain its tradition. In contrast, R. Karo argues that a community that abides by Rambam’s rulings retains halakhic hegemony in the face of the arrival of a community following Ashkenazic teachings, as long as it is in the majority. Even if the new community eventually numerically outnumbers the older established community, the latter’s traditions are to be followed by both communities. In other words, minhag ha-makom is defined by the original residents. Others, however, such as Maharival, Maharashdam, Ginat Veradim, and Massa Melekh, disagree, arguing that as long as the new arrivals comprise a “kahal,” an independent community, they retain their practices.",
+ "4. The Mara De-Atra and the Modern Jewish Community",
+ "This entire discussion is premised upon the sociological existence of a kahal. With the advent of modernization, secularization, the widespread bureaucratization of authority, and social mobility, the traditional communities, the “atras” (the places), have been weakened significantly. These social and political forces, combined with easy access to other arbiters of national and international standing via telephone, fax, and e-mail, undermine and undercut the traditional role of a mara de-atra. Commenting upon this sociological change, Professor Menachem Friedman observes:",
+ "In the past, I coined the term “voluntary community” to distinguish between the traditional Jewish community that existed in Europe, at least until the middle of the eighteenth century, and the Jewish community that developed via the processes of modernization and secularization, which was paralleled by the disintegration of the traditional community framework. While the former was defined primarily by geographic bounds and included all the Jews who resided within these bounds … the voluntary community, to the extent that such a term can be used in this context, was organized on the basis of the willingness of the individual to be affiliated with it and to assume the norms and values that define the identity of the community … The development of the voluntary community became possible from the moment that the leadership of the Jewish community no longer had the power to enforce the observance of the traditional Jewish way of life on the members of the community.",
+ "Despite the countervailing forces of modernity, an authority who possesses the requisite scholarly credentials can function institutionally in the United States as a mara de-atra within certain contexts. This is the case, for example, in the context of the rebbe of a Hasidic community or a Rosh Yeshiva within the walls of his yeshiva. However, for all practical purposes, the presence of a mara de-atra as a kahal authority has vanished from most Jewish communities. Thus, R. Feinstein observes that neither Manhattan nor Brooklyn possess a mara de-atra who is the authority for the entire populace. Similarly, in Israel, residents of Bnei Brak are not necessarily bound to follow the teachings of the late Hazon Ish.",
+ "Despite the absence of a communal framework within many Jewish enclaves, in many instances, the synagogue in a particular locale may be deemed halakhically as a kahal if it operates as an autonomous institution. For these purposes, the synagogue’s autonomy is defined by having its own rabbi, conducting daily prayer services with its own liturgical practices, and maintaining governance by its lay membership. If the synagogue is construed as a kahal, the elected rabbi, contingent upon possessing the requisite scholarship, is to be viewed as the mara de-atra of the synagogue.",
+ "The synagogue’s mara de-atra will either be “an-authority” or “in-authority” to the same degree that any communal mara de-atra is. Synagogue acceptance of the mara de-atra is either actualized through the adoption of a takanat ha-kahal, synagogue bylaws, and/or the execution of a ketav rabbanut, a rabbinic contract. Members of the synagogue are then obligated to abide by his rulings either by dint of the membership’s election or by voluntarily accepting his authority. Should a member decline to accept him as his mara de-atra, the member (or a non-member attending the synagogue) must refrain from any public behavior in the synagogue that undercuts specific rulings issued by the mara de-atra. As R. Hayyim D. ha-Levi elucidates:",
+ "Although there is an obligation to comply with … the local rabbi’s rulings … surely if one does not accept his rulings … since he knows that other scholars differ with him, it is clear that he is not labeled a sinner. However, he is prohibited from acting in variance with the rabbi and his congregation in any public fashion, since such behavior would be an infraction of “lo titgodedu,” which seeks to prevent controversy and promote peace in the community.",
+ "Any rulings which entails public behavior in the synagogue, such as synagogue liturgy, kashrut standards in the synagogue, and legal decisions affecting synagogue practice, apply to all synagogue members, even those who follow another rabbi’s teachings. Indeed, it is not uncommon in many of our communities to find members of one synagogue who choose to pose their halakhic questions to the rabbi of another synagogue or a yeshiva. As long as when you pray at a particular synagogue you communicate public recognition and validation of the synagogue rabbi and his rulings relating to the synagogue rather than practicing in the synagogue and/or voicing the rulings of your rabbi, such behavior appears to be entirely legitimate. To state it differently, though a particular congregant has chosen a rabbi for halakhic counsel (who is “in authority”) to address his personal needs, nevertheless, when attending the synagogue he must abide by all the rulings and practices of the congregational who is “in authority” in the synagogue.",
+ "As we saw above regarding a communal mara de-atra, every synagogue member, regardless of whether he has selected the synagogue rabbi as “one’s rabbi” or not is obligated to refrain from complying with a mara de-atra’s ruling if he has erred “be-devar Mishnah,” in a matter of black-letter Halakhah or in permitting the forbidden.",
+ "5. Mara de-Atra of an Ideological Community",
+ "In the foregoing discussion, we discussed the authority of living and deceased mara de-atras, the extent of that authority, and the applicability to the modern day Jewish community. The common feature of the mara de-atras that we have discussed is that they are chosen by a community in a particular geographical location. Can the notion of community transcend geographical boundaries? Can ideological and principled commitment create an ideological community, which in turn chooses its mara de-atra?",
+ "R. Aharon Lichtenstein responds to this question:",
+ "The definition of the relevant community, however, is murky. The gemara speaks of locale, but it seems strange that geography should be the sole determinant … Would only residents of twelfth-century Egypt be entitled to rely upon the Rambam’s minority kulot? … It seems far more likely that other factors – ethnic identity or, above all … spiritual and ideological fealty – should carry no less weight … Physical proximity is obviously not intended here. What is envisioned is, evidently, a principled and consistent attachment … [S]piritual commitment rather than geographic continuity is the determining factor. A Sephardic congregation in Warsaw could be still bound by the rulings of the Rishon le-Tzion. Would a Gerer hasid cease to be part of the Beis Yisrael’s community just because he had moved to Paris?",
+ "Upon the basis of this presentation, which is grounded in his interpretation of Rashba’s teachings, R. Lichtenstein concludes:",
+ "The implications for a contemporary Orthodox Jew’s legitimating of his response to modernity are self-evident. Were there no genuine gadol who had subscribed to the core halakhic positions of what is roughly denominated as Modern Orthodoxy, ordinary rabbis and laymen would be hard-put to cling to them … No objective observer of the American Torah scene – or the international scene, for that matter – can fail to acknowledge the Rav’s [R. Joseph B. Soloveitchik] position as one of the gedolim of this century, and his advocacy of the critical values of Modern Orthodoxy … On the central issues … he has been steadfast and consistent: on the interrelated questions of general culture, confronting the world and Religious Zionism … There can also be no question of his right to champion his positions. That right is relevant not only to the Rav personally, but to any declared member of his ideological community. Those who identify with his worldview and halakhic orientation can rightfully regard their similar views as legitimized by his authority – with the proviso, of course, that they generally submit to that authority.",
+ "Whereas, as we have seen, the members of community in a particular locale formally choose their mara de-atra, in this context, the ideological community residing in various places, without any formal mechanism of election, adopts their adherence to one posek’s rulings. This entails compliance with his positions regarding such macro issues as the legitimacy of secular education, the significance of the State of Israel, and relations with fellow Jews and non-Jews, but at the same time, it entails subservience to his rulings in all realms of Halakhah, such as kashrut, Shabbat, family relations, business matters, and the like. One cannot simply decide to follow a mara de-atra’s teachings related to his weltanschauung and abstain from compliance to his rulings dealing with daily halakhic concern. This notion of an ideological community being bound by a mara de-atra equally extends to following the teachings of an enclave of scholars, such as the Moetzes Gedolei Hatorah. Whether the guidelines that address the credentials and parameters of the mara de-atra in a particular geographical location apply to a mara de-atra of an ideological community are beyond the scope of this presentation.",
+ "6. The Psak of a Mara de-Atra: Subservience to One’s Predecessors or Autonomous Judgment?",
+ "Until this point, we have focused upon rabbinic authorities who are institutionally based, either within the context of the community, a yeshiva, or a synagogue. Whether these arbiters either live in physical proximity to their adherents, live elsewhere, or are no longer living, their adherents have a principled and committed attachment to their teachings. What remains to be addressed are the dynamics involved in a mara de-atra’s or a non-institutional rabbinic authority’s issuance of a psak din (decision). How does any mara de-atra – or, for that matter, any posek (arbiter) resolve a matter in question? Given the dissemination of sifrei hiddushim (novellae), sifrei psak (restatements), and teshuvot (responsa), ought an individual arbitrarily choose one ruling over another?",
+ "Expounding upon the dictum, “Designate yourself a teacher and remove doubt,” Yosef ibn Nahmias cites his teacher, R. Asher ben Yehiel (Rosh):",
+ "If he has a [legal] tradition from his master, he should act accordingly, and if he does not, he should choose one of the restatements from among [those written by] the great authors, one that he admires, and act in accordance with his decision.",
+ "According to Rosh, in the presence of conflicting views regarding a point of Halakhah, one should either opt to abide by one’s teacher or, assuming one is learned and erudite, follow a specific restatement (such as the Mishnah Torah, Tur, or Shulhan Arukh). Rosh notes, however, regarding Rambam’s Mishnah Torah that, “One should refrain from relying upon his reading in this book to assess and render decisions unless one finds proof in the Talmud.” If a sefer psak characteristically lacks corroborating sources, one should preferably rely on one’s autonomous judgment rather than simply invoke the ruling found in the restatement. If one has the ability, he can overrule his predecessor by unearthing his sources and revealing his latent processes of reasoning.",
+ "However, Rosh introduces two qualifications regarding the right of a scholar to overrule an earlier opinion by adducing proofs for his own view:",
+ "In cases where two scholars of stature argue regarding a halakhic determination, let not an arbiter say, “I will render a decision as I see fit.” If he acted in this manner, this is a false judgment – unless he was a scholar of stature, learned, and capable of reasoning and is able to resolve the matter according to one of the opinions based on clear and cogent proofs …
And I say that it is surely true that someone who erred regarding the rulings of the Ge’onim because he had not heard of their view, but when he was informed of the Geonic decision it appeared correct to him, he has erred in black-letter Halakhah (ta’ut be-devar Mishnah). And the same is true not only of Geonic rulings, but also of the scholars of every generation … Should their words not appear agreeable to him and he cites proofs for his position which are acceptable to his generation, then “Yiftah in his generation is like Samuel in his.”",
+ "Halakhah limits the finality of a judgment (res judicata) by distinguishing an error committed by an arbiter regarding fundamental law, such as a matter explicit and unanimously accepted in the Mishnah, Tosefta, or Talmud (ta’ut be-devar Mishnah), in which case the decision is reversible, and error in resolving a disputed point of law (ta’ut be-shikul ha-da’at), in which case the decision is final. Rosh argues that the opinions of the Ge’onim and Rishonim are accorded the status of devar Mishnah. Accordingly, if an arbiter ignores their rulings in favor of another view, it is construed as an error in devar Mishnah. Furthermore, the stature of these writings obligates a halakhist to be aware of their existence; failing to take them into account at the time of the decision renders the psak null and void if it contradicts his predecessors. Nevertheless, Rosh argues that a scholar who is aware of these early opinions and yet adduces clear and compelling proofs (berurot u-nekhonot) is entitled to overrule these opinions, provided that these proofs are agreeable (mekubalot) to his own generation.",
+ "Following in the footsteps of Rosh, R. Moshe Isserles (Rema) states:",
+ "If it seems to the scholar and his contemporaries, based upon compelling proofs, that the Halakhah is at variance with what is mentioned among the decisors, one may disagree with them, since it is not mentioned in the Talmud …",
+ "According to Rema, overruling one’s predecessor(s) is contingent upon advancing “compelling proofs” which are acceptable to the arbiter and his contemporaries. The “compelling proofs” in this context may either be proofs based upon a halakhic tradition of arbiters’ rulings or convincing proofs without halakhic precedent. Whether the unearthing of sources for scrutiny and potential dissent is limited to the Talmud, Ge’onim, and Rishonim or encompasses the teachings of Aharonim as well is subject to much debate.",
+ "Relying upon the view of R. Yisrael Isserlin (Terumat ha-Deshen), Rema adds the following caveat:",
+ "However, one cannot be lenient regarding strictures found in compositions (hibburim) which have spread throughout the majority of Israel, unless one has a tradition from one’s teachers that we do not practice this particular stricture.",
+ "Rema’s reference to “books” and Rosh’s focus upon “early authorities” is an implicit adoption of the thirteenth century Ashkenazic tradition that “[halakhic] compositions … are the teachers of men.”",
+ "In contrast, Maharam Alsheikh, Maharam ibn Haviv, and Shakh argue that even if the individual has the requisite credentials, if there is a significant disparity of knowledge between the predecessor and himself, it is improper for him to overrule his predecessor.",
+ "R. J. David Bleich invokes the significance of considering normative Halakhah as the grounds for one’s psak prior to issuing an autonomous judgment:",
+ "Leniencies and permissive rulings exist in abundance. The point is to seek neither the stringent nor the lenient, but the view that is most authoritative. Moreover, there usually is a view which has been accepted in practice by the majority of Poskim as the accepted standard. Thereupon, such a ruling becomes normative and deviation cannot be considered other than by virtue of compelling reasons.",
+ "Adopting “our teachers are the books” as a basis for decision-making poses a formidable challenge for every arbiter. Whether one is a recognized authority or a mara de-atra, the posek has a daunting task. Prior to rendering a decision, the arbiter must acknowledge his own finitude in terms of the level of his own halakhic knowledge compared to his contemporaries and predecessors, as well as recognize the importance of rendering a psak pursuant to normative Halakhah regarding the matter he is addressing. Should compelling reasons dictate the need to deviate from normative Halakhah, utilizing the canons of decision-making, he may render an autonomous judgment. To arrive at a psak, the posek must delve into commentaries on the Talmud and responsa literature, which generally reveal their reasoning processes, as well as the restatements and rabbinic court judgments, which are frequently devoid of proofs and explicit reasoning.",
+ "It is worth noting that we have thus far referred to sifrei psak as “restatements,” rather than the more conventional translation, “codes.” A code is characterized by a sense of certitude and finality. Frequently, its rules are in canonical form; they have been given a particular authoritative formulation. We have avoided this translation because a sefer psak is actually merely a restatement of a particular area of Halakhah that remains subject to future debate and interpretation. Thus, Professor Isadore Twersky writes:",
+ "Any student who follows the course of rabbinic literature from the Geonic works of the eighth century through the Mishnah Torah and Turim and on down to the Shulhan Arukh cannot ignore this see-saw tendency … No sooner is the need for codification met than a wave of non-codifactory work rises. A restatement, even in the eyes of its admirers, required vigilant explanation and judicious application.",
+ "Although sifrei psak are characterized by their comprehensiveness, systematization, abstractness, and ko’ah ha-hiddush (creativity), their rulings did not nullify existing opinions within the halakhic system, opinions which are also authoritative or potentially may become authoritative in the future.",
+ "Moreover, the legist’s creative-interpretative role remains attempting to clarify ambiguities and gaps in the restatement’s rulings. In fact, according to Maharal, even if a scholar with credential errs in interpreting a passage in the Talmud, it is preferable to follow one’s interpretation rather than abide by a restatement “like a blind traveler on a highway.” On the other hand, Maharshal frowns upon relying upon independent judgment without being aware of “the books.”",
+ "R. Yehoshua ben Yosef (Pnei Yehoshua), R. Ya’akov Lorberbaum (Netivot ha-Mishpat), R. Menachem Krochmal (Tzemach Tzedek), and others contend that the explicit rulings of the Shulhan Arukh and/or Rema have the status of “devar Mishnah.” Hence, any dissenting judgments handed down after these rulings are null and void. In fact, in accordance with Tumim, should an opinion fail to be cited in Beit Yosef, Shulhan Arukh or Rema, we should not factor such a view in rendering a psak. However, numerous commentators on Shulhan Arukh view it as akin to any other sefer psak whose rulings can be overruled. Regardless of the source of the Shulhan Arukh’s authority, its decisions were subject to much debate and disagreement.",
+ "The absence of finality regarding a majority opinion and the Shulhan Arukh’s rulings is reflected in the policy of “ko’ah de-hetera adif” (the power of rendering a lenient ruling is preferable). While a lenient view may have been overruled, it can be taken into account under certain conditions in arriving at a psak.",
+ "Rashba establishes the following guidelines concerning the implementation of this rule:",
+ "It is normative Halakhah that we rule according to the superior opinion in wisdom and in number, and even in an emergency situation; we do not rely upon the opinion that is inferior in number and in wisdom. A similar rule applies in a controversy between the individual and majority view, unless it is an emergency-situation, when there is a danger of financial loss or the like.",
+ "In cases of disputes between arbiters of equal scholarly stature, we may pronounce, in Talmudic parlance, “Rabbi X is worthy to be relied upon in a dire need” (one may rely upon a minority lenient opinion in times of emergency).",
+ "The right of an arbiter to exercise discretion, relying upon an individual opinion in cases of emergency and significant financial loss, even when the majority rules against that view, is firmly rooted in Talmudic precedent. Radakh and Hazon Ish argue that that the presence of a majority view is to be construed as “itmar hilkhisa” – the halakhah has been decided and one therefore cannot impart legitimacy to an individual opinion even in extenuating circumstances. It appears that in their view, “abiding by the majority” in halakhic controversy is akin to following the majority in a beit din proceeding. However, Rashbatz, Rashbash, Bah, Rema, Shakh, Taz, and Noda be-Yehuda disagree. Whereas a majority view is determinative following a judicial proceeding, the various authorities debating a halakhic issue generally function as discrete individuals adducing evidence for their respective positions, rather than as a group sitting together arriving at a reasoned judgment. Since halakhic controversy transcends geographic location and time period, one can clearly conclude that “lo itmar hilkhisa” – there is no definitive ruling, and one can therefore rely on an individual opinion in a time of emergency and significant financial loss. The fact that one can ascertain the position of the majority is irrelevant; the fact that the majority never deliberated face to face with the minority is determinative.",
+ "The legitimacy of recourse to an individual opinion under these conditions equally becomes a source of debate regarding the Shulhan Arukh. Are its rulings to be characterized as “itmar hilkhisa” or not? Whereas Hazon Ish, pursuant to his earlier cited position, and R. Naftali Tzvi Berlin argue that its decisions are akin to a majority view and one may therefore not rely on a different minority opinion even in extenuating circumstances, R. Tzvi ben Ya’akov Ashkenazi (Hakham Tzvi) argues that the Shulhan Arukh’s rulings are categorized as “de-lo itmar hilkhisa,” similar to any other sefer psak that is subject to debate and overruling. However, an arbiter cannot rule in accordance with a minority opinion of scholarly eminence – even if some authorities agree to the position and even in a situation of financial need and emergency – if a definitive strict ruling has crystallized in rulings of the authorities and the ruling has become widespread throughout the majority of Jewish communities, unless there is a tradition that it is not the practice to abide by a strict opinion.",
+ "The requisite need to engage in interpretation of our restatements equally applies to published decisions of Jewish courts. Because there is no general obligation to provide a reasoned judgment in a beit din proceeding, most decisions are rendered without accompanying rationales. Here again, it becomes the arbiter’s responsibility to delve into these rulings in order to uncover the grounds for the ruling, rather than simply accepting them at face value, lest one erroneously misinterpret them. In sum, “our teachers are our books” is actually a formidable challenge to an authority who accepts the awesome responsibility for rendering judgment.",
+ "The absence of finality of a psak is also true of she’eilot u-teshuvot (responsa) literature, in which the facts of the case under discussion are usually clear and the decision is accompanied by reasoned corroboration. When the son of R. Akiva Eiger, a renowned eighteenth century legist, asked his father for permission to publish his responsa under the name “Pesakim u-Ketavim,” R. Eiger responds:",
+ "And regarding my dear son’s request, if it is favorable in my eyes to describe these pesakim and these writings … The name “pesakim” is improper, because it seems that this is the final decision for me and one cannot disagree with it … It is difficult for me to hear that upon the appearance of halakhic composition some authorities abide by its rulings. Such an approach is improper, since they are responsible to investigate the matter thoroughly; if, after proper examination, they find that the author’s teachings are correct, then they should follow him. But to believe whatever is found in the written word … is not from the ways of wisdom.",
+ "Thus, R. Eiger, who some view as having the stature almost equal to that of a Rishon (early authority), preconditioned any acceptance of a ruling upon exercising one’s autonomous judgment.",
+ "7. The Role of Hekesh (Analogical Reasoning) in the Rendering of a Psak",
+ "The ability to analyze and potentially overrule one’s predecessor, whether he be the author of a teshuvah or a sefer psak, requires that the arbiter (including a mara de-atra or a dayan) possess yirat Shamayim (religious piety) and scholarship. In his decision-making, he must weigh the significance of contrary precedent opinion and exercise logic as well. Clearly, many questions posed to an arbiter can be answered by simply opening sifrei psak and teshuvot. In order to address new questions, however, being conversant with these sources does not suffice.",
+ "Borrowing Talmudic terminology, Rosh argues that an arbiter must engage in a special type of logic, “medameh milta le-milta,” applying analogical inferences for the purpose of discerning the similarities and differences between cases in order to address new situations. Implicitly relying upon Talmudic precedent, R. Avraham the son of Rambam expounds upon the nature of this type of logic:",
+ "An arbiter who in his decisions follows only what is written and explicitly stated is weak … In every decision that he is considering, he should analogize his case to something that is similar to it and derive branches from those roots … They [Talmudic precedents] were preserved for a reason … in order that the wise man, hearing them frequently, will develop his ability to weigh the matters with discretion and render decisions properly.",
+ "The vitality and effervescence of the decision-making process is maintained when the arbiter seeks to resolve a problem by searching for examples that may serve as fruitful sources for comparison. In comparing these precedents to the case at hand, the arbiter analyzes the similarities and differences between them, deriving a tentative analogy that posits a logical relationship between the examples and the problem. Finally, the arbiter confirms the rule by inquiring whether it meets the guidelines for invoking an analogy in this particular situation. In effect, the method of analogy, unlike ordinary open-ended reasoning, starts with the prior decisions of one’s predecessors, rather the arbiter’s own reasoning and intuition.",
+ "The practice of analogical reasoning reflects the ongoing dialectic between deference to early authorities and creative innovation. The spur to originality and creativeness, ko’ah ha-hiddush, is tempered by the commitment to thoroughly investigate a wealth of sources and the collaborative effort of numerous arbiters over time who may have addressed similar and/or identical problems. The weightiness of precedent opinion facilitates avoidance of flawed and misplaced reasoning. The engagement in “medameh milta le-milta” is thus concomitantly a stimulant and a depressant – a spur to creativity, but equally a motive for restraint.",
+ "As the Talmud informs us:",
+ "Once a person has asked and was informed that a halakhah was to be taken as a guide for practical decisions, he may continue to give practical decisions accordingly, provided he draws no comparisons. But surely, in the entire domain of the Torah comparisons are made! R. Ashi said: It is this that was meant: Provided one draws no comparisons in ritual questions related to treifot [diseased animals which, though ritually slaughtered, are forbidden to be eaten] …",
+ "The Talmud argues that the application of “medameh milta le-milta” is embedded and integrated within the entire corpus of Halakhah, allowing the arbiter to analogize from one branch to another. Upon further reflection, pursuant to R. Ashi’s posture, extreme care must be given prior to comparing one case to another, lest one succumb to a mistaken analogy. According to R. Yair Bachrach (Havot Ya’ir), a mistaken analogy is in fact subsumed in the category of a “ta’ut be-devar Mishnah,” an error in black-letter Halakhah, which means that such a decision is null and void.",
+ "While the Talmud employs this type of dialectic in the contexts of both issura (ritual law) and mamona (monetary matters), the Talmud itself exhorts us not to draw an analogy between the two; “no analogy in a manner involving ritual law may be established from monetary matter,” and conversely, “no analogy in a monetary matter may be established from a matter concerning ritual law.”",
+ "These statements leave us with many questions. Are there any situations in which one can derive a norm in monetary matters from a norm in ritual matters or vice versa? Is it possible to draw an analogy to ritual matters from a norm in a matter comprised of both ritual and monetary aspects, or an analogy to monetary matters from a norm in a matter comprised of both ritual and monetary characteristics? Can one draw an analogy between two commandments, two rules of Shabbat, two minhagim (customs), or two legal presumptions? Can we compare legal fictions from different spheres or permit a legal fiction based upon the use of analogy? Is it possible to draw an analogical inference when there is an explicit proof in the Talmud but later teachings lead to a contrary conclusion? Can one analogize from the portion of legal thinking that has no bearing on the conclusion (obiter dictum), or must such reasoning be limited to the reasoning essential to the conclusion (ratio decidendi)? In monetary matters, may one rely upon a minority lenient opinion in emergency circumstances, as is the case in ritual matters (“Rabbi X is worthy to be relied upon in a dire need”)? Can one analogize from one piece of legislation to another, from hilkhot mikveh to hilkhot Sukkot?",
+ "These questions and many others pose significant challenges to the arbiter as he begins the process of reasoning by analogy. Given the penchant for analogical reasoning and that this reasoning is viewed as infinitely malleable, it is not surprising that the Talmud mandates that prior to invoking an analogy, the arbiter must seek advice from a colleague who is of greater scholarly stature than himself regarding the propriety of this reasoning. The classical restatements, including Mishnah Torah, Tur, and Shulhan Arukh, reiterate this need for consultation. Their positions have been understood as mandating this requirement even if the arbiter is free of doubt regarding how to resolve the case. In fact, according to certain authorities, even if he has consulted a greater scholar, he is obligated to confer with him again regarding a similar case, lest he assume that the second case is analogous to the first.",
+ "Analogical reasoning coupled with the requirement of consultation with one’s colleagues counteracts the errors of open-ended judgment. Reliance serves as a reason for the arbiter to align his own decisions to prior decisions of other arbiters.",
+ "Over-reliance on earlier opinions bereft of rationale equally has its pitfalls. As the Talmud Yerushalmi observes, “All agree that we do not learn the law from a previous ruling.” One of the commentators notes there:",
+ "If one scholar ruled on an issue of Halakhah, one should refrain from determining the halakhah accordingly, since one might be wrong regarding the scholar’s reasons for that decision, since there are many who err in their studies.",
+ "Thus, conforming to past decisions that are devoid of reasoned judgments must be eschewed.",
+ "Even reasoned judgments of predecessors cannot guarantee proper decision-making. As R. Yeshaya ben Yisrael Basan, an eighteenth century Italian scholar, elucidates:",
+ "All these arbiters who stick like glue (to’ke’ah be-devar halakhah) to a particular teshuvah without examining the roots of the manner are not arbiters at all. Rivash of Barcelona … in replying to someone who wanted to rely upon one of his rulings … answered that it should not be used as a precedent because he might have followed Rashba … since Barcelona was under his jurisdiction. And he may have … had his own reasons for deciding in this manner … Not everyone has the privilege of learning from responsa … since frequently their points are statements which do not form a necessary part of the scholar’s ruling.",
+ "Hence, reliance on precedent should be weighed properly in the course of analogical reasoning.",
+ "8. The Prerequisite of “Yirat Shamayim”",
+ "The value of reliance is inextricably connected with the arbiter’s concern for yirat hora’ah, the fear of rendering a decision. This fear is engendered in turn by the posek’s yirat Shamayim, his awareness that the halakhic system is reflective of the will of God. The opinions examined during his deliberations are characterized as divrei Elokim hayyim, the words of a living God. Accordingly, “any arbiter who fails to adjudicate a truthful judgment causes the departure of the divine presence from Israel.”",
+ "As a pious individual, an arbiter who engages in arbitrary or capricious judgment must always fear that punishment will ensue, either in this world or the world to come. Nonetheless, the Talmud observes:",
+ "An arbiter might exclaim: What do I need all this anguish [assuming the personal responsibility of rendering a decision]? To him the Bible responds: “He [God] is with you in giving judgment.” An arbiter should be guided by his own understanding.",
+ "Rashi explains that as long as the legist utilizes his knowledge and understanding, he need not fear punishment. Yirat hora’ah should not lead to an abdication of responsibility. Indeed, the Talmud writes that if an individual who has the credentials to adjudicate refuses to render a psak, the consequence is “va-atzumin kol harugeha,” “many are her slain.”",
+ "An arbiter who engages in interpretation, analogy, and logical inference while weighing the import of tradition and precedent is walking a tightrope, but as long as his deliberation is marked by deep-seated humility in resolving devar Hashem, he will not be punished. This is succinctly articulated by R. Aryeh Leib Heller in an oft-cited opinion:",
+ "Man is fearful lest he err in anything he may state regarding the Torah, and human reason … pursues the truth and in particular the Torah’s intent … But the Torah was not given to the ministering angels; God gave the Torah to man, who possesses human reason … God said: It is my desire that “truth should emerge from the earth” … and truth will be what the scholars agreed upon, as per their human reason …",
+ "This requisite sense of humility is engendered by the simple fact that an arbiter is functioning within a religious legal system, but it is also stimulated by the mentality of “the decline of the generations.” The sense that later scholars are inferior to their predecessors is epitomized in various Talmudic aphorisms:",
+ "If the earlier sages were sons of angels, we are but sons of men, and if they were sons of men, we are like asses … Better was the fingernail of the earlier generation than the entire later generation.",
+ "This notion of decline in scholarship informed the thinking of numerous decisors during post-Talmudic times. Extraneous factors, such as social instability and the prevalence of disease (such as during the period of the Black Plague, 1348–1350), coupled with this sense of modesty, led arbiters to describe their historical situation as a generation “enshrouded by the darkness of the intellect and error.” They describe themselves as “dwarfs sitting on the shoulders of giants,” “orphans of orphans,” “like a monkey vis-à-vis a human being,” and “placing our heads under the soles of the feet of our early ones.”",
+ "A case in point is the fifteenth century Ashkenazic teachings of Maharil, Mahari Weil, Terumat ha-Deshen, Mahari Bruna, and Mahari Mintz. These authorities approached early authorities with humility and self-effacement; despite the absence of any general normative obligation to consult with rabbinic colleagues, their advice was enlisted prior to rendering a decision on numerous occasions. This reliance upon precedent and insistence on the need for consultation are further indicated by fifteenth century Ashkenazic rulings that demonstrate subservience to earlier opinions marked by their stringency, humrah, leading one Jewish historian to conclude:",
+ "Whenever a doubt existed about the law in a special case and some authority of the past was found who had decided according to the more austere view, no examination was performed, but this strict decision was adopted.",
+ "This position, however, has been found to be untenable. In fact, a review of other rulings of these Poskim demonstrates that they engaged in logic and inference, setting parameters for exercising this methodology and hammering out rulings on the anvil of actual study. More significantly, numerous positions are built upon a leniency, and not necessarily one rooted in precedent opinion. Thus, this period of Jewish legal history is to be characterized as a period leaning toward neither leniency nor strictness. One must view the individuality and uniqueness of each case under the prism of critical scrutiny rather than subsume a decisor or group of decisors under any self-inclusive category of being either strict or lenient.",
+ "In sum, the arbiter navigates between the poles of precedent reflected in Talmudic and post-Talmudic writings and creative innovation grounded in ordinary reasoning and/or analogical inference, which is tempered by yirat hora’ah. This conception of the decision-making process serves as the rationale for the accepted rule “hilkheta ke-vatra’ei” – in a dispute between earlier and later authorities, the halakhah is in accordance with the later authorities – a technique utilized by many arbiters. Rosh, who programmatically set forth the parameters for the process, explains:",
+ "We consider the views of those later in time to have greater authority, since they were aware of the reasoning of the earlier authorities as well as their own, and they reached their decision on the basis of choice among all views and after fully deliberating in order to get to the heart of the matter. ",
+ "Conversely, if the later Poskim reached their contrary position without being aware of their predecessor’s view, the arbiter may not rely upon the later authorities. Similarly, if an opinion is unearthed which was unknown to the later authorities and we can assume that upon examination the later authorities would have subscribed to this view, the arbiter may follow this emerging opinion.",
+ "How should an arbiter weigh the value of the rule “hilkheta ke-vatra’ei” against a judgment of a deceased mara de-atra? On the one hand, the institution of the mara de-atra demands compliance with his rulings. On the other hand, abiding by “later authorities” entails the possibility that one’s decision may be contrary to the teaching of one’s predecessors, including a mara de-atra’s judgments. Accordingly, it is no surprise that in certain instances, an arbiter will invoke “the place of his master,” while in others he abides by “the later authorities.”",
+ "In situations in which an individual is unwilling to follow a certain mara de-atra or there is no individual authority who has the requisite credentials and personal acumen, it is incumbent to identify an arbiter who can resolve the matter in doubt according to three basic decision-making rules.",
+ "First, one must adhere to the majority opinion among authorities. Just as this rule applies within the confines of a formal pronouncement of beit din, which is predicated upon deliberation among arbiters, it equally applies in disputes between decisors, mahloket ha-poskim, which characteristically lacks discussion between individuals. Given the absence of debate, the majority may rely upon a minority view which is strict unless the customary practice or a corroboratory proof supports the lenient position or if it is a qualitative majority. Majority rule applies even if the reasons offered by the various authorities in the majority differ from one another. The significance of the rule is reflected in the presumption that if a decisor’s opinion is unclear, we assume that he identifies with the majority.",
+ "If there is no definitive ruling and the controversy has an even number of authorities affirming each position, then one follows the scholars who possess a greater stature or have more adherents. In cases in which neither of these two rules are applicable, one follows the rule of “safek de-oraita le-humrah ve-safek de-rabbanan le-kulah” – in a matter of doubt regarding a biblical prohibition, the stricter opinion prevails, whereas in a matter of doubt concerning a prohibition of rabbinic status, the lenient opinion prevails.",
+ "The foregoing discussion suggests that whether one follows the rulings of a mara de-atra or selects a particular person to serve as one’s halakhic and spiritual guide, this decision is predicated upon communal or individual choice and upon the acute need to choose a person who possesses a certain religious character and scholarly credentials.",
+ "9. Concluding Thoughts",
+ "The Talmud instructs us:",
+ "Upon encountering two Tanna’im or two Amora’im who argue, as did the schools of Shammai and Hillel, one should not adopt the leniencies of both or the stringencies of both, but rather, the leniency and stringency of the one or the other.",
+ "The ramifications for adherents to rabbinical authority are clear. Just as a community must refrain from hiring a mara de-atra who will follow only authorities who rule either strictly or leniently on matters, an individual seeking counsel must be guided by the same instruction.",
+ "As we have seen, the methodology of the decision-making process is a challenge and a potential minefield. To traverse this path requires deference to one’s predecessors, discretion based upon a rigorous application of logic and other factors, along with “the fear of judgment.” The net result is that any particular authority will communicate both stringent and lenient opinions regarding different issues. Accepting either the leniencies or the stringencies of a particular posek expresses honorific lip service to rabbinic authority but constitutes a basic misunderstanding of the halakhic process in general and rabbinic authority in particular. Recourse to a particular posek motivated by the inquirer’s self-interest, looking for the “right” answer to fit one’s needs, results in a travesty in Torah living. A rabbinic authority is chosen to respond to one’s questions, and that choice entails acceptance of his teachings, whether or not in a particular instance one is personally pleased with the psak. Hence, abiding by a posek’s lenient rulings and failing to comply with his strict pesakim or vica versa is improper.",
+ "Clearly, one may seek counsel from more than one rabbinic arbiter. For example, matters dealing with Orah Hayyim and Yoreh De’ah may be in the purview of one posek, while issues in Even ha-Ezer and Hoshen Mishpat may best be resolved by another. However, once one has selected an arbiter to whom he will address his questions in a particular realm of Halakhah, one cannot “shop” for another arbiter’s reply due to dissatisfaction with the chosen arbiter’s response regarding a particular issue. As Plato aptly put it, “God ought to be to us the measure of all things, and not man.” ",
+ "Any suspension of our critical faculties as a committed Jew is a reflection of self-indulgence, self-enhancement, and ultimately self-delusion. Arguably, the binding acceptance of a rabbinic authority, all the more so in a liberal-democratic society, is a countervailing force to sustain our character and integrity as a member of our self-respecting covenantal community."
+ ],
+ "Chapter 2; The Business Judgment Rule in the Corporate World; A Comparative Approach": [
+ "The Business Judgment Rule in the Corporate World: A Comparative Approach",
+ "The purpose of this chapter is twofold. In Part I, we will review the state of American corporate law liability for acts of negligence by directors of for-profit and non-profit businesses. Part II explores whether Halakhah (Jewish law) endorses the business judgment rule for a Jewish profit or non-profit corporation or for Jewish managers and/or directors employed by American corporations. Part III offers a comparative analysis of how the two legal systems addressed this topic by examining the issue of the stakeholder debate and corporate social responsibility.",
+ "I. American Law",
+ "A. The Business Judgment Rule in the For-Profit Sector",
+ "According to state corporate law, directors oversee the affairs of the corporate venture. Whereas the board supervises management and the day-to-day operations and establishes corporate policy, the shareholders vote regarding the election of directors, sale of corporate assets, and approval of the corporate charter and amendments. In carrying out their managerial roles, directors are charged with approving, modifying, or disapproving corporate plans and financial objectives of the firm.",
+ "The general standard of conduct applicable to gauge the performance of the directors who actually manage the business of the corporation is “the business judgment rule.” As will be shown, this rule is a judicial creation that imparts recognition and deference to a board decision. It is generally used after a corporate decision has been made and as a defense to a challenge of the soundness of a corporate decision. Much attention has been focused on the proper understanding of the specific content of this rule.",
+ "Different courts have defined the business judgment rule differently. In Caremark, the court addresses the suit of shareholders of a corporation against bank directors to hold them liable for failure to prevent employees of the bank from violating the law. Chancellor Allen, writing for the court, states:",
+ "It was the board’s responsibility to monitor that information and reporting systems exist in the organization that are reasonably designed to provide to senior management and to the board itself timely, accurate information sufficient to allow management and the board, each within its scope, to reach informed judgments concerning both the corporation’s compliance with law and its business performance … It is important that the board exercise a good faith judgment that the corporation’s information and reporting system is in concept and design adequate to assure the board that come to its attention in a timely manner.",
+ "The business judgment rule thus may be seen as a standard whereby the director acts in good faith if he serves in accordance with the honest belief that the action taken or the omission of action was in the best interests of the firm. However, if he fails to set information systems in place, then he breaches his duty of good faith. This holding from Caremark, which defines the violation of the business judgment rule as entailing bad faith, a dereliction of duty, and a conscious disregard for one’s responsibilities, is subscribed to by various jurisdictions. Other courts will investigate whether the process of arriving at the decision was reasonable and will abstain from addressing the merits of the decision.",
+ "An alternate interpretation of the business judgment rule is that it insulates the director from ordinary negligence as long as there is no specter of conflict of interest, such as a board implementing defensive devices to protect a merger agreement. In Puma v. Marriot, for example, five disinterested directors of Marriot Corporation approved the acquisition of six other companies owned by the majority shareholder of the corporation, the Marriot family. In the absence of a showing of fraud or collusion, the court gave full deference to the board decision and concluded that the Marriot’s family influence did not dominate or control the directors in any fashion. This understanding of the business judgment rule has a long pedigree in Delaware law and other jurisdictions.",
+ "A more far-reaching interpretation of this rule was invoked in Kamin v. American Express Co. In this case, the American Express’s board decision to distribute shares rather than sell them caused the company to lose over eight million dollars for the purpose of improving reported earnings and thereby maintaining the price at which the company’s stock traded. In an even stronger statement of the business judgment rule than Puma v. Marriot and Caremark, the Court in Kamin argues that directors are not liable for making mistakes, even if those errors result in substantial costs to the corporation and its shareholders. In effect, the holding implicitly gives a green light to the right of directors to hide losses and to report higher earnings in order to maintain the trading price of company stock.",
+ "Judicial abstention from review of the American Express’s board decision stems from the court’s enshrinement and endorsement of two goals of corporate management: maximizing profits for the corporation and seeking higher prices for selling shareholders. The courts therefore will abstain from second-guessing a business decision. An earlier decision from another jurisdiction further indicates that the business judgment rule operates even where the maximization of shareholder wealth is not at stake. In Shlensky v. Wrigley, the plaintiff alleged that there were two grounds for the defendant’s refusal to install lights in Chicago’s Wrigley Field baseball stadium; both alleged reasons were unrelated to promoting the economic interests of the corporation. First, maintaining that baseball is a daytime sport, the defendant refused to host night baseball. Second, Wrigley alleged that instituting night baseball might cause the neighborhood surrounding the stadium to deteriorate. While these factors were not directly related to the corporation’s economic well-being, the defendant claimed that Wrigley’s long-term financial interests would be best served by continuing to furnish only daytime games. In this case as well, the court abstained from second-guessing a business judgment and held that the reasonableness of the decision is categorically off limits to judicial review. Absent allegations of fraud, illegality, or conflict of interest, the court will abstain from reviewing a director’s decision.",
+ "What emerges here is the lack of consensus as to the scope of the business judgment rule and what it purports to accomplish. Nevertheless, the common denominator of these holdings is that the business judgment rule entails a judicial policy of non-review in the majority of cases, rather than a framework for shaping judicial review of a director’s performance. Minimally, in the absence of evidence of fraud, bad faith, illegality, an uninformed decision, or conflict of interest, the business judgment rule is judicially created doctrine that precludes inquiry into the merits of a director’s decision, protecting the power of the board to govern the company without having to account to courts for their decisions. The burden of proof is upon the plaintiff to rebut the presumptions that the board rendered a decision or decided to refrain from acting in good faith (in accordance with the law), that it was an informed decision, and that the directors had no financial interest in the decision.",
+ "Other courts construe the best judgment rule as the director’s standard of liability. Generally speaking, directors are to manage the corporate affairs with the degree of care which an ordinarily prudent man would use in similar circumstances. While one would expect that ordinary negligence would create tort liability, the business judgment rule dictates that a higher threshold of liability must be met by invoking a gross negligence standard. In the corporate context, gross negligence would appear to mean conduct of an extreme character, such as reckless indifference to or a deliberate disregard of the shareholders or a gross abuse of a director’s discretion. This gross negligence standard focuses on the reasonableness of the board’s decision-making process, rather than the reasonableness and or substantive merits of their decision. Not surprisingly, it has rarely resulted in personal liability for directors for their decisions. Within eighteen months of the Delaware Supreme Court’s decision in Smith v. Van Gorkom, which held that a board of directors acted in a grossly negligent fashion in granting uninformed approval of a merger proposal, Delaware passed legislation limiting the director’s liability for a good faith, albeit negligent, conduct on the corporation’s behalf. Subsequently, almost every other state legislature followed in the footsteps of Delaware.",
+ "Although the court’s role is to address the rationality of the board’s decision-making process and cases of fraud, illegality and conflicts of interest, there is one area in which the court will invoke the business judgment rule addressing the actual merits of a board decision. As the Delaware Supreme Court aptly notes:",
+ "To be sure there are outer limits [beyond which corporate decisions made with good process will not be respected], but they are confined to unconscionable cases where directors irrationally squander or give away corporate assets.",
+ "Even in such cases, reducing a plaintiff’s claim for waste of corporate assets requires such an onerous burden of proof upon the plaintiff that such a claim will rarely comply with evidentiary standards. While there are holdings in cases of a director’s inattentiveness to corporate affairs resulting in the embezzlement of the company’s funds in which the burden of proof was satisfied, in instances in which there was no fraud, illegality, conflict of interest, or waste, a director is entitled to protection if he failed to exercise oversight by guaranteeing reasonable information and reporting systems to inform himself of a company’s financial condition and instead relied upon the company’s employees.",
+ "In short, whether one construes the business judgment rule as conveying a standard of liability or not, the common denominator of all these holdings is that absent fraud, illegality, conflict of interests, or any challenge to the process of the board’s information gathering and the fairness of the decision-making process, any director’s decision which will maximize shareholder profits rather than lead to corporate waste will be upheld by the courts. In fact, fiduciary duty mandates that corporate directors promote shareholder interests and therefore requires of them to maximize profits subject to legal constraints.",
+ "Given the scandals involving misleading financial statements designed to pump up reported corporate earnings of Enron, Tyco, WorldCom, and others, some legal commentators have called for increased board accountability, and thus greater regulation of corporate governance by the courts. Others contend that directors are to be viewed as “mediating hierarchs” who manage the corporate assets and are empowered with the task of balancing conflicting interests of diverse groups, rather than being viewed as “agents” who only maximize shareholder interests. Adopting such a perspective, which allows for consideration of stakeholder interests including those of its suppliers, clients, creditors, shareholders, rank and file employees, and local communities, would contribute to constraining the misuse of a director’s authority. Finally, some contend that current conceptions of corporate governance in general, and the need for good faith in particular set the groundwork to look to religious faith among the managers and directors to encourage socially responsible corporate conduct. In short, the application of the business judgment rule as a judicial policy of non-review directors’ decisions has evoked legal and religious responses to the need to reform corporate governance.",
+ "B. The Business Judgment Rule in the Not-for-Profit Sector",
+ "Similar to for-profit corporations, non-profit corporations are governed by a board of directors who have diverse tasks, many of which are similar to those in business corporations. As with for-profit corporations, the board is empowered to monitor management and approve major transactions of the non-profit. As we have shown, the business judgment rule serves as the mechanism of judicial oversight for directors’ decisions in the corporate world. Does the same rule hold sway in addressing the decisions of non-profit directors?",
+ "Despite certain similarities in the two forms of organization, non-profit directors may have limited business or financial experience; in certain instances, one or two directors may dominate the board, creating a nonresponsive board. This is unlike a business corporation, in which there is an infrastructure of information gathering mechanisms and systems for reporting management operations. Moreover, whereas in the corporate world profits are distributed among the stakeholders, such as directors, managers and the like, in the not-for-profit sector, earned profits are reinvested or earmarked for expenses or salaries rather than distributed among its members. Furthermore, whereas corporate directors are remunerated and accountable for their decisions, the majority of non-profit directors are public-minded individuals who serve without compensation on self-perpetuating boards who frequently either lack the information to arrive at informed judgments or who rubberstamp management decisions.",
+ "Yet, despite the difference in the working environments of these two types of organizations, the reasons justifying the business judgment rule in the corporate world have served as the same rationales offered by the courts and commentators for applying this rule to the not-for-profit sector. Aptly summarizing the rationales advanced for invoking this rule in the corporate context, one commentator writes:",
+ "The most frequently cited justifications of the rule include: (1) promoting risk-taking and allowing shareholders to voluntarily undertake risk; (2) encouraging competent directors to serve; (3) preventing judicial second-guessing; (4) allowing directors sufficient leeway in managing the corporation; and (5) permitting more efficient market mechanisms to manage director behavior.",
+ "Though the rule originated in the for-profit world in encouraging innovative and entrepreneurial thinking, limiting litigation by disgruntled shareholders, promoting service by directors with expertise, and limiting judicial scrutiny, courts have implicitly argued that these same values and concerns are applicable to the non-profit world. The courts have therefore extended the rule to the not-for-profit sector and adopted the gross negligence standard as the yardstick for assessing a director’s liability for negligent decision-making.",
+ "II. Halakhah",
+ "A. The Business Judgment Rule in the For-Profit Sector",
+ "The foregoing discussion focused on the business judgment rule as a judicial doctrine precluding American courts from reviewing the decisions of directors and officers of the for-profit and not-for-profit world, provided that they are informed judgments and do not entail self-dealing, fraud, illegality, the absence of reasonable information and reporting systems, an unfair decision-making process, or corporate waste. Moreover, even a director who is grossly negligent will be exempt from liability. In short, a director’s simple negligence, misjudgment, or failure to follow the direction of corporate leadership will not result in legal accountability for his action. The business judgment rule contemplates judicial silence and justifies court intervention only under limited circumstances.",
+ "In our forthcoming discussion of Halakhah, we will address whether Jewish law subscribes to this standard of liability for corporate leadership. To address this matter, we need to understand some of the various business organizations recognized by the halakhic legal system.",
+ "A type of partnership agreement termed an “iska” implicitly addresses our question. Halakhah prohibits the charging and paying of any amount of interest between two Jews, regardless of how reasonable the rate would be considered in the commercial world. As such, interest-bearing loans are prohibited. In light of this proscription, there is a technique, dating back to the days of the composition of the Talmud, that allows for the structuring of a loan as a business investment for which profits may be paid. One individual, the investing partner (IP), invests the funds which are required for the business enterprise and plays no role in managing the business; the managing partner (MP) uses the IP’s capital to operate the business. Unless stipulated otherwise, all profits and losses are to be divided equally between the two partners. The agreement stipulates that on a specified date, the MP must repay the amount of the loan – that is, fifty percent of the funds advanced to him – regardless of any losses he may have incurred. Half of the profits from the portion of the loan are to be remitted to the MP and half of the profits from the deposit are given to the IP.",
+ "Describing this business arrangement, a contemporary authority notes:",
+ "The Talmud calls this arrangement “palga milveh u-palga pikadon,” half loan, half investment. The concept of “half loan, half investment” is based on the principle that each partner in a business is entitled to profits which are generated by his money. The iska agreement entitles the managing partner to receive 50% of the profits, despite the fact that he did not actually invest money into the business. This means that the agreement treats 50% of the invested funds as if they were the managing partner’s. This is because half of the money which was given by the investing partner is considered a loan to the managing partner, which he then uses to realize profits. The agreement also calls for the investing partner to receive 50% of the profits which are generated. This means that 50% of the business funds are considered his. Although he has actually advanced all of the business funds, the agreement treats only half of the money as the investing partner’s. This is the “half investment” portion of the business.",
+ "The iska agreement most closely resembles the secular legal concept of a limited partnership. In a limited partnership, at least one general partner manages the business and is personally liable for the partnership’s debts, while the limited partner contributes capital and is neither involved in management nor personally liable for the partnership’s obligations.",
+ "If the MP decides unilaterally to borrow the monies for his own use, is he permitted to minimize the IP’s return on his investment? Replying to this question, the Talmud states:",
+ "It was said in Nehardea: Now that we say that it is a half-loan and a half-bailment, if he [the MP] wishes to drink beer from it [the loan portion], he may do so. Rava said: It is therefore called iska [business] because he can tell him, “I gave it to you for trading, not for drinking beer.”",
+ "The underlying logic of Rava’s view is that the IP’s focus is to maximize his profits. The creation of any other ventures unrelated to the goals of the partnership agreement will only dilute the IP’s efforts in managing the enterprise, as well as expose the capital investment to substantial risk. The resolution of this matter is addressed within the context of agency law. The iska arrangement, similar to a secular partnership, equally generates a principal-agent relationship whereby each partner is both an agent to his fellow partner and a member of the partnership is a principal.",
+ "Addressing the above Talmudic scenario of the MP seeking profits for himself, diverting funds from the loan part of the iska for his personal use, Rambam rules:",
+ "Several rabbinical authorities have ruled that if [the agent] purchased the article for himself using the money given to him by his colleague after considering it to be a loan, he is considered to have purchased the article for himself. We accept the claim: “I considered the money that was given to be a loan.” I state that this is not true. Instead the purchase belongs to the principal, as will be explained with regard to the law of iska.",
+ "Thus, according to Rambam, despite the MP’s intention to borrow the money for his personal use and divert the funds from the iska, the IP, who is the principal, retains ownership of the money; therefore, any profits accrued from the MP’s personal venture are to be shared with the IP. Stated somewhat differently, the third party who is engaged in business with the MP does not necessarily assume that the MP is the owner of the money, but views him rather as the agent of a principal who is the real owner and will receive the money from the transaction. Despite the MP’s intentions to borrow the monies for his personal use, profits accrue to the IP, as principal and any loss of the capital is the MP’s responsibility.",
+ "However, subsequent restatements of Halakhah disagree. As R. Karo states:",
+ "If someone gives to his friend money for an investment, even though half of it is a loan, he cannot use the money for his personal use and manage the investment with the other half of the money.",
+ "According to this approach, if the MP, as an agent, acquired an article for himself with the assets of the IP, the principal, that object now belongs to the IP. Should this diversion of funds occur, Rema concurs with R. Karo:",
+ "If he deviates from the investor’s instructions and states that he is now working for himself rather than the iska, he is akin to a robber.",
+ "In other words, the misappropriation of the principal’s assets is construed as gezeilah, theft, and the agent is obligated to reimburse the original market value of the article and accrued profits to the IP, the principal. ",
+ "Thus, there is a controversy regarding whether funds diverted by an agent from an iska arrangement for his own use belong to the principal or the agent. However, the common denominator of the two approaches is that the partner, as principal, has a legal claim against his other partner, as agent, who deviates from his mandated instructions for his own personal benefit.",
+ "In effect, the partnership relationship reflects the conventional principal-agency model. In the absence of a partnership arrangement, how does halakhic agency law address the case of an agent who harms the principal’s interests without deviating from his explicit instructions? Rambam states:",
+ "When an agent [intentionally] violates the instructions of his principal, his deeds are of no consequence. Similarly, if he erred even with regard to the slightest amount, the transaction, whether involving landed property or movable property, is nullified. For [the principal] can state: “I sent you to improve my [position] not to impair it.”",
+ "The agency is thus voidable. Should the principal continue to authorize this transaction even though it has harmed his interests, the agency relationship continues to be operative. However, should the principal be unwilling to accept this harm, the principal may elect to rescind the agency.",
+ "What happens if the principal cancels the agency? Is the principal or the agent liable to a third party for any losses incurred by the cancellation of a particular transaction? Rambam informs us:",
+ "When a principal transfers money to an agent to purchase real property and the agent purchases it for him without [requiring the seller to accept] financial responsibility, [if it is expropriated from the purchaser], he is considered to have damaged the principal’s position. The agent must purchase the property without financial responsibility, as he did for himself. Then he must sell it to the principal and accept financial responsibility. [This decision is rendered] because [the agent] purchased [the property] with money belonging [to the principal]. The agent must accept the financial responsibility himself.",
+ "Third party redress is dependent upon whether we are dealing with a disclosed agency or undisclosed agency. If the agent is acting for a disclosed principal, it is the third party’s responsibility to verify the scope of the agent’s mandate prior to proceeding to engage in business with the agent. Consequently, if the agent deviated from his mandate, the transaction between the agent and the third party is nullified. However, Rambam is addressing the situation of an undisclosed agency. In such a case, if the agent, acting for an undisclosed principal, deviates from his instructions, the actions between the principal and the third party are not binding. Nonetheless, the agent’s actions are binding between the third party and himself. Given that the agent is aware that he harmed the principal’s interests and deceived the third party by representing himself as being authorized to act, he is personally liable for any losses. This position is endorsed by other legists, such as R. Shlomo ben Aderet (Rashba).",
+ "The aforementioned position is predicated upon a transaction executed between the third party and the agent without the principal’s material or financial input. What happens if the principal’s assets are invested in the transaction either through the agent’s sale of a principal’s asset or use of the principal’s monies, resulting in harm to the principal’s interests? One approach is that the principal may decide to consent to the agent’s act and direct him to correct the harm. Another approach is that the principal must choose between the two options: either to accept the agent’s action and accept the loss, or rescind the agency and initiate a claim for redress for the harm caused by the agent. However, the principal may not choose both options. A third approach advocates that the agency is void and the agent is personally liable for any losses. The final view is that the agency relationship remains intact; the transaction is binding between the agent and the third party and the agent is responsible to indemnify any losses.",
+ "Is an agent liable even if there is no connection between his violation of the terms of the agreement and the actual losses? This question is the focal point of a seventeenth century Egyptian beit din decision. Reuven sent merchandise from Egypt to Italy to his shaliah (agent) instructing him to sell the merchandise there. In exchange, it was agreed that the shaliah should purchase certain merchandise and send it to Reuven via ocean freight. Due to time constraints, the shaliah deviated from the instructions and forwarded Reuven a different type of merchandise. Subsequently, the boat capsized and the merchandise was lost. The two sides appointed a dayan as arbiter to resolve whether the shaliah was liable for the loss. His decision was that the shaliah was liable, even though there was no connection between the deviation from Reuven’s mandate and the lost merchandise. Such a deviation is no different than the Talmudic case of the principal who instructed the agent to purchase wheat and he bought barley. This decision is defended by some legists, but others demur and argue that a shaliah’s responsibility is limited. Therefore, if there is no connection between the deviation from the principal’s instructions and the actual loss, the shaliah is exempt from bearing the loss.",
+ "A partner of an “iska,” which is akin to a limited partnership arrangement, generates a principal-agent relationship whereby each partner is both an agent to his fellow partner and a member of the partnership is a principal. Should an agent deviate from the explicit instructions of his principal, even if this deviation is unrelated to subsequent losses, or if he causes harm to the principal’s interests, the partner qua agent is liable for his actions. In effect, agency law serves to define the parameters of a partner’s liability.",
+ "On the other hand, one of the other distinctive consequences that flow from this “iska” relationship is that the partner is equally an employee, a po’eil. For example, regarding the IP setting the wages of the MP in the iska, the Mishnah states that the MP is receiving his remuneration as a worker. As such, although an iska arrangement is characterized as a limited partnership, the MP is comparable to a worker who has the right to withdraw from the venture. As R. Karo states:",
+ "If someone receives an iska for a prescribed period of time, the recipient may withdraw from it akin to any worker; however, the investor may not withdraw.",
+ "Elucidating the rationale for this view, R. Falk observes:",
+ "A manager of an iska is different due to being viewed as a slave who works solely for the investor, as it says, “You, the community of Israel, are a servant to me.”",
+ "Whereas the IP invested capital in the enterprise and therefore is not viewed as a worker, the MP’s investment of his time and effort to develop the venture deems him a worker, and he therefore may withdraw from the business at any time.",
+ "The identity of the partner as a worker is not limited to an iska, a limited partnership. Regarding damage committed by an employee in a proprietorship, Shulhan Arukh states:",
+ "Professional craftsmen who caused irreparable loss, he [an employer] can terminate him without forewarning, given that they are deemed forewarned by dint of his due diligence to perform his job.",
+ "Irreparable loss is defined as spoiled goods that cannot be appraised. In such a situation, the contractor may be terminated. However, if the losses incurred are quantifiable, the employee is precluded from discharging the worker and may only seek monetary redress from him. On the basis of Shulhan Arukh’s position, Netivot ha-Mishpat analogizes this norm of an employer-employee relationship to every type of partnership. Just as a contractor may be terminated in cases of irreparable loss, a partner who has caused such loss may similarly be terminated from a partnership.",
+ "Moreover, the applicability of halakhic labor law equally extends to any principal-agent relationship and is not limited to a partnership and proprietorship relationships. For example, any rank-and-file employee, whether employed by a corporation or proprietorship, has a right to withdraw from a labor agreement at any time. Interpreting the biblical verse, “For to me are the children of Israel servants,” the Talmud expounds, “They are my servants, but not servants to servants.” Denying an employee the right to retract from a labor agreement would impair his autonomy.",
+ "Thus, R. Moshe Sofer opines:",
+ "If he desires to withdraw from his mandate, the law of the laborer who withdraws in the middle of the day is applicable to him.",
+ "Analogously, the right of withdrawal applies to an agent. As R. Yehezkel Landau argues:",
+ "In the case of the agent and the principal … if he wants to withdraw, it is clear that the agent … has the status of a po’eil.",
+ "Given that we are dealing with a gratuitous agent, if he fails to carry out the mandate he undertook, he has committed a moral offense, but is not subject to any legal consequences. The agent is treated like an employee who resigns from his work; although possibly exempt from indirect damages (grama) or prevented from employment due to force majeure (ones), he is liable for direct damages that cause irreparable loss.",
+ "In short, partnership and proprietorship arrangements are governed by the norms of halakhic labor law and agency law. Agents have the status of a worker and a worker is treated as an agent.",
+ "Based on the above conclusions regarding the applicability of agency and labor law to halakhic partnerships and proprietorships, we can now begin to address if the halakhic system incorporates the business judgment rule as a judicial mechanism for reviewing a director’s decision of a for-profit corporation.",
+ "In this context, we will not delve into the question of how Halakhah conceptualizes the role of directors of business corporations (as either owners, agents, or employees). For the sake of our presentation, we will assume the premises of American law regarding these individuals. For over a century, scholars have debated the issue of how to construe the employees of a business corporation. The dominant approach is the view that its assets are collectively owned by shareholders or that the shareholders are principals who employ officers and directors as agents to manage the assets on their behalf. Others contend that officers, managers, and rank-and-file employees of a corporation act as a team, providing services to a board of directors. The consequence is “that no one team member is a ‘principal’ who enjoys a right of control over the team.” In effect, the team members are employees rather than agents of the enterprise. Instead of conceptualizing the corporation as a hierarchical relationship, some adopt the perspective that the corporation is a nexus of contracts or a nexus of reciprocal arrangements between directors, managers, rank-and-file employees, and shareholders in the corporate setting bound by certain legal rules. As Alchien and Demsetz observe:",
+ "The firm has no power of fiat, no disciplinary action any different in the slightest degree from ordinary market contracting between any two people. [An employer] can fire or sue, just as I can fire my grocer by stopping purchases from him or sue him for delivering faulty products … Telling an employee to type this letter rather than to file that document is like telling my grocer to sell me this brand of tuna rather than that brand of bread.",
+ "Despite the many proponents of this contractarian approach, the dominant mode of thinking in corporate law continues to view directors as agents of the shareholders. This conclusion is predicated upon the notion that shareholders have contracted for this right in exchange for their investment in the venture. Thus, regardless of which perspective we accept, the directors are either conceptualized as agents or employees of the corporation.",
+ "Assuming that directors are either agents or employees according to Halakhah, are the parameters of their liability relating to deviation from a principal’s mandate or causing irreparable loss identical to the scope of responsibility as we described above for partners, managers, and employees of a halakhic partnership or proprietorship?",
+ "At first glance, this question hinges upon how one conceptualizes a corporation. Does Halakhah subscribe to Chief Justice Marshall’s description of the corporation as “an artificial being, invisible, intangible and existing only in contemplation of law,” or is the corporate form to be construed as a partnership benefiting shareholder’s interests?",
+ "Subscribing to the dominant halakhic view that construes a corporation as a general partnership, does the system recognize the business judgment rule as a mechanism to protect directors from derivative suits of shareholders except in cases of fraud, illegality, self-interest, corporate waste, and the irrationality of the board’s decision-making process? Given that a director is comparable to either an agent or an employee who is comparable to an agent, agency law or labor law ought to be applicable.",
+ "As we have shown, the provisions of labor law and agency law dictate compliance with the mandate of the shareholders – that is, the principals. The scope of discretionary judgment is limited. Consequently, Professor Aaron Levine’s conclusion is that the halakhic legal system would reject the business judgment rule, which gives wide latitude to corporate directors and refrains from second-guessing their decisions. In effect, from a halakhic perspective, a director’s corporate behavior should be scrutinized no differently than a rank-and-file employee of a partnership or proprietorship.",
+ "It seems, however, that this matter requires further scrutiny. What happens if the shareholder instructs the director that he may do any act that he wishes, even if it is detrimental to the corporation and its shareholders? In that case, is the harmful act of the director binding upon the shareholder? Based upon Shulhan Arukh’s ruling, it would seem that such an agreement would be valid. As Shulhan Arukh states:",
+ "If he stipulates with the agent that the agent act either for his benefit or for his harm … he cannot revoke the agency.",
+ "Should we adopt this perspective, it would seem that Halakhah would, in fact, endorse the business judgment rule and refrain from scrutinizing a director’s decision even in cases of gross negligence.",
+ "Nonetheless, even the existence of such private ordering between the shareholders and the directors of the corporation fails to give them immunity for illegal acts. As we have seen, while an agent is bound to the principal’s instructions absent an agreement of the parties to the contrary, and is liable should he deviate from that mandate, should the principal direct the agent to commit an illegal act, such as a tort that may entail a criminal infraction, the agent is liable for the performance of these illegal acts. As the Talmud states:",
+ "If one dispatches a fire to a deaf-mute, an insane person, or a minor and then the bearer of the fire sets ablaze the property of another person, the one who sent him is exempt from liability under the laws of man … Why is the agent exempt? Let us rather say he is liable, since the person who set the fire acted as his agent and a person’s agent is considered to be like himself? [This case is different.] Here, the agent was commanded to commit a transgression [to damage the property of another], and one cannot be an agent to commit an act of transgression.",
+ "Tur states the rule:",
+ "Just as one is proscribed from stealing … similarly, it is prohibited from injuring your friend.",
+ "Given that an agent cannot be authorized to execute an illegal act, a violation of ritual Halakhah, if the agent, in this case a director, were to act negligently, he would be liable. Thus, whereas the best judgment rule would immunize in such cases from liability, Halakhah would find a basis for action.",
+ "By way of example, in Para-Medical Leasing Inc. v. Hangen, a company sued its manager for negligent mismanagement, but the court found in favor of the manager. Indeed, precedent can be found in earlier Washington case law for shielding officers from such liability. In contrast, assuming the allegations are proven, legists of Halakhah would mandate liability in such a case. Similarly, in Craig v. Graphic Arts Studio, Inc., the court held that an officer or director is permitted to be employed in a competitor’s enterprise as long he does not violate any legal or ethical fiduciary duty with his own company. Because the officer was a minor shareholder in his company and failed to disclose to his company his real interest in the competitor’s business, the court held he had breached his fiduciary duty to his company. In the absence of such breach, however, the reasonable inference of the holding is that it was proper for the directors to be engaged in two businesses simultaneously; the court’s application of the business judgment rule would have granted him immunity in such a case. Here again, generally speaking, Halakhah obligates that an employee perform due diligence on his job and prohibits the performance of a second job, “moonlighting” that will impede his tenure of employment at his existing job.",
+ "A distinction between American law and Halakhah is also apparent when the director’s activities entail a degree of lying or misreporting. For example, in Kamin v. American Express, a company wished to increase its earnings per share by employing false accounting practices. In this case, the court held that the directors of American Express were shielded from liability based on the business judgment rule. In contrast, according to Halakhah, directors, officers, and shareholders alike must refrain from lying by way of altering financial statements to either mislead potential shareholders about the underlying economic performance of the company or to influence contractual outcomes that depend on reported accounting statements. The potential victims of earnings management are, of course, the end users of the financial statement, including bond and equity investors, banks, suppliers, and institutional/individual investors. Misleading financial reporting designed to inflate earnings is a form of deceitful misrepresentation; the creation of a false impression, geneivat da’at, in the eyes of gentiles and Jews alike is a violation of Halakhah. Decisors of Halakhah would therefore have ruled very differently in this case. While the courts have attempted for decades to define the contours of the business judgment rule by fine-tuning the gross negligence standard as it relates to procedural due care in the director’s decision-making process, Halakhah invokes fair representation and negligence standards as guidelines for the imposition of liability regarding these corporate decisions relating to false misrepresentation and mismanagement and substandard job performance.",
+ "One might argue that since the systemic rule of dina de-malkhuta dina, “the law of the kingdom is law,” is applicable to liberal democracies such as the United States, the business judgment rule should be determinative even in situations which are conflict with the norms of Halakhah. Rema argues that this principle applies even in cases in which the secular law contradicts Halakhah, and this is the position historically accepted by most legists in his wake. Nevertheless, there is a clear halakhic consensus that the rule may only be invoked regarding civil matters, mamona. In civil matters which entail an element of ritual law, issura, such as the tort matters in Para-Medical Leasing Inc. v. Hangen, Craig v. Graphic Arts Studio, Inc. and Kamin v. American Express, the Jewish legal system will refrain from incorporating the norms of the foreign legal system.",
+ "This conclusion is based on the assumption that a director should be viewed halakhically as an agent and is therefore liable for his activities. As we noted above, however, a director’s conduct is equally governed by halakhic labor law. In some situations, an individual can serve in the capacity of an employee and yet be incapable of acting as an agent. For example, if someone was hired to seize a debtor’s property on behalf of a creditor, his action is valid despite the fact that his conduct will cause an economic loss to other creditors. Because “the hand of the worker is like the employee,” the action is valid. In contrast, if a gratuitous agent committed such an act, he would be unable to acquire the property on behalf of the principal.",
+ "Pursuant to the logic of this position, there are some authorities, including Mahaneh Ephraim, who validate the actions of an employee which entail infractions of halakhic ritual law. These actions are essentially considered those of the employer, despite the rule that “there is no agency to commit an illegal act.” According to this perspective, it would seem that the halakhic system would endorse the business judgment rule and refrain from scrutinizing a director’s judgment call, even in cases of gross negligence entailing an infraction of ritual Halakhah.",
+ "However, many decisors reject this approach and contend that employee conduct which involves the commission of sin is prohibited. As R. Shalom Schwadron notes, “Many disagree with Mahaneh Ephraim,” and R. Algazi observes, “The majority of decisors disagree.” In effect, although a director has the status of an employee, and in certain instances this special status trumps agency law, in cases of violations of issura, such as negligent behavior vis-à-vis shareholders, there are grounds for corporate liability. Thus, a beit din would refrain from invoking the business judgment rule and would rule that such conduct is an infraction of Halakhah.",
+ "In summary, if Halakhah construes the corporation as a joint effort of partners, directors (and, for that matter, shareholders and officers) are either agents and/or employees who must comply with their individual obligations, agency law, labor law, and the defined interests of the corporation. Since corporate law assumes that actual liability will be assumed by the corporation, any deviation by the individuals from such halakhic legal norms will result in corporate liability vis-à-vis the shareholders. Whereas the business judgment rule would shield a director or officer from personal liability in these situations, Halakhah, although concurring that there would be corporate liability, would scrutinize their behavior and look askance at a director or officer engaging in improper behavior.",
+ "Alternatively, if a corporation is construed as an independent entity, would the provisions of agency law lead to liability for directors (or officers, managers and employees) for conduct which is a violation of agency norms? Agency law is operative provided that the principal is Jewish and mentally competent. Consequently, a gentile, a minor, a deaf-mute, or a mentally deficient individual cannot serve as a principal in the establishment of an agency relationship. Being an artificial person, a corporation is bereft of any personality and has no mind and no ability to act on its own and cannot issue instructions to a person. Hence, agency law would be inapplicable to a corporation viewed as an artificial being. Thus, whereas secular corporate law squarely embraces agency law in this case, Halakhah discounts it.",
+ "Nevertheless, R. Blau aptly observes:",
+ "It seems that a manager or an employee of a corporation who is authorized may appoint an agent, since the principal is a private individual and the agent would be bounds by the laws of agency. Even if an individual cannot act as an agent, if he is remunerated for his work, agency law is applicable.",
+ "Given that the directors, officers, and managers are employees of the corporation, there are grounds for shareholders filing derivative suits against them.",
+ "Even if one were to contend that a corporation cannot create an agency relationship with its directors, managers, and officers, such individuals nevertheless do retain the status of a po’eil, an employee who can perform actions representing the corporation, despite it being an artificial person. As R. Ephraim Navon explains, “An employee may serve as an agent.” Even though the corporation is an independent legal entity, given their status as employees, directors equally serve as agents, and as we have seen, an agent may not exploit his position in any fashion that will harm the interests of the principal. Should such an action transpire, the principal can advance the argument, “I sent you to benefit me rather than harm me.” Consequently, should the principal demonstrate that in fact his mandate has been undermined, the agency relationship is void and any action of the agent does not obligate the principal.",
+ "In effect, the implications of the plea, “I sent you for my benefit,” encourage shareholders, as principals, to file derivative suits against their agents, the directors who are undermining their interests. This would not necessarily be a beneficial result, as it would lead to third parties being circumspect regarding corporate decisions relating to themselves, always fearful that these decisions potentially would be subject to litigation and possibly overturned. Additionally, directors would likely become excessively cautious, aware that decisions that are subsequently determined to have been wrong could expose them to personal liability. In short, without a business judgment rule of some sort, the day-to-day affairs of the corporation would be difficult to sustain.",
+ "Consequently, Halakhah invokes an umdana, an appraisal of the intention of the parties. There exists an expectation that the shareholders will assume responsibility for all the managerial decisions of its directors lest third parties refrain from conducting business with the corporation. This appraisal of intention is grounded upon the determination that the director’s conduct is assumed by the corporate entity, and should there be any negligent behavior by its members, the corporation will assume responsibility. Alternatively, the assumption of the firm’s liability either is based upon the provisions of the corporate charter or individual members of the corporation obligating the enterprise to assume liability for their co-members’ behavior from corporate assets rather than the shareholders’ personal assets. Consequently, even if the directors or officers engage in issurim such as false misrepresentation, lying, and the like, any monetary claims for damages engendered by this improper conduct are satisfied by filing suit against the corporation, rather than the employees.",
+ "The practical ramifications of the corporation’s assumption of liability are that officers and directors will be encouraged to serve a corporation and the corporation will allow them sufficient leeway in managing the business. The legal consequences of this assumption of liability will vary depending upon a legal system’s view regarding the scope of the business judgment rule. According to American law, such liability reinforces the business judgment rule as an abstention doctrine developed by the courts to refrain from scrutinizing directors’ decisions. On the other hand, although Halakhah looks askance at the director’s or officer’s improper conduct and would require scrutiny of their decisions, barring any grounds (such as commission of fraud) for piercing the corporate veil should they fail to comply with basic halakhic norms, corporate liability may ensue pursuant to their duties as an employee.",
+ "In short, regardless of whether halakhically we construe a corporation as an independent legal entity or a joint effort of individuals employed by a corporation, they must comply with their obligations as members of a covenant-faith community. Whereas, the business judgment rule will shield a director or officer who owns shares in the corporation from liability in certain derivative suits, Halakhah would scrutinize their decisions and look askance at their improper conduct and mandate liability. Nevertheless, barring any piercing of the corporate veil, any monetary liability would be satisfied from corporate assets.",
+ "B. The Business Judgment Rule in the Not-for-Profit Sector",
+ "In the absence of sources directly relating to the modern charitable institution, such as a synagogue or Jewish day school, in the corporate context, in order to address whether the best judgment rule operates in the not-for-profit sector, we will examine the halakhic institution known as “hekdesh,” which may serve as an appropriate analogue to the modern not-for-profit institution.",
+ "This institution known in the sources as “hekdesh” originally referred to an administrative body which collected animals and money earmarked as donations for the maintenance of and the sacrificial service in the Holy Temple. These assets, which were originally the donor’s, were consecrated to the Temple, with the new owner being God. Although management of these assets was in the hands of the gizbar, who represented the interests of the Temple, similar to the modern corporate analogue, hekdesh was an independent identity with a separation between ownership and management.",
+ "Thus, interpreting the biblical verse addressing the laws of bailment, “When a person gives his friend money or objects to guard …” the Mehilta notes, “The verse states ‘his neighbor’ – his neighbor and not hekdesh.” Thus, if a bailment has been donated to hekdesh, the laws of bailment are inapplicable to this asset. Whether, a gizbar would be liable for acts of negligence is subject to debate.",
+ "Following the destruction of the Temple, many Poskim expanded the institution of hekdesh to encompass all associations, including communal bodies, which perform and/or facilitate the performance of a mitzvah through the furnishing of religious, educational, health, or social services or providing charity to the respective Jewish communities established in Israel and the Diaspora. Dating back to the Talmudic period, there has been an ongoing debate regarding whether a communal association such as a charity fund should be equated with hekdesh, which is an independent entity, or viewed as a joint-effort of partners. Writing on behalf of the Supreme Rabbinical Court, R. Shlomo Daichovsky states, “A religious foundation is a legal personality separate from its trustees.”",
+ "During the post-Talmudic period, these communal institutions continued to be managed by a gabbai tzedakah, a charity manager. Just like hekdesh during Temple times, when there was no individual who was the owner of the Temple assets, charity, synagogue, and yeshiva funds have no owners. Given the association’s independent identity, one would expect that managers would be exempt from liability regarding their negligent behavior vis-à-vis the organization. As Rambam rules:",
+ "An individual who received the money of poor as a bailment … and he was negligent … he is exempt … it is money with no determinant plaintiffs.",
+ "Numerous legists have endorsed Rambam’s posture. Therefore, should a member of the community of the poor advance a claim for monies, the bailee may respond, “I want to give these monies to other poverty-stricken individuals.” Analogously, monies earmarked for educational, health, or religious services have no determinate group of beneficiaries. Addressing contributions to an educational institution, Rashba notes, “This money has no specific owners.” R. Ya’akov Breish, focusing on the identity of a bank, similarly informs us that “the community has no determinate owners.”",
+ "As a result, in the absence of the existence of actual owners, claims against a manager of a communal institution – including those relating to torts – generally cannot be advanced.",
+ "Others, however, argue that even though the funds are not designated for any particular individual, once the assets are under the manager’s control, the poor assume ownership. According to this view, one may advance a claim against a manager who acted negligently.",
+ "In some situations, many authorities contend that a gabbai tzedakah would be liable for his negligent conduct because he is construed as a bailee. Assets of the community which are earmarked for a school, synagogue, cemetery, or the like are examples of “money which has determinate plaintiffs”; as a result, the manager has tort liability should he cause damage. Alternatively, should a manager or employee of the organization negotiate an agreement with a third party predicated upon an understanding regarding the association’s assumption of risk, and issues regarding the body’s liability subsequently arise, the address to advance such issues is to the association. In short, adopting the approach of Netivot ha-Mishpat, “Clearly, these are community funds, and it as if they are determinate plaintiffs.” Or as R. Ephraim Navon observes, “All the members of the community are considered owners.” Thus, in these cases, there are grounds for filing suits against a manager’s alleged misconduct.",
+ "Some have explained this position in the following fashion: Generally, a manager is exempt from bailment liability. However, an association construed as a halakhic entity is empowered to control the disbursement of funds and has an economic interest in maximizing the financial integrity of the organization by modifying the recipients of these funds. Therefore, the individual in control who has an economic interest – in our case, the manager or employee – is potentially personally liable. In fact, Netivot ha-Mishpat argues that the manager controls these assets, selling and acquiring the funds in the name of the community charity foundation. He is thus the appropriate address for filing a suit against the communal association.",
+ "Given the manager’s liability, however, would a beit din choose to scrutinize his alleged misbehavior? Addressing a charitable foundation, such as a communal charity fund, the Talmud states: “We do not calculate the disbursement of the funds of the charity collectors.” According to the medieval legists, the absence of the requirement to submit a detailed accounting of the foundation’s activities is due to the fact either that the association is busy with hiring employees to service their activities and therefore cannot devote time to prepare records or due to our implicit trust in the honesty of the directors, who would only act properly. Clearly, however, times have changed; foundations are increasingly capable of multitasking, and the presumed integrity of directors is no longer implicitly valid. It is thus unsurprising to find that Rema invokes “the duty to account”:",
+ "To be innocent in the eyes of God and Israel, it is proper to submit a record, and this refers to trustworthy collectors. However, one who is nefarious … must produce a record, and this equally applies to all communal officers …",
+ "In cases in which the documentation submitted by a trustee is missing information, a beit din will request either the appointment of a forensic accountant to review the records and/or additional information from the foundation. As noted by R. Ben Tzion Uziel:",
+ "Adjacently located to the beit din, there should be an administrative body of professionals experienced in commerce … who can monitor the affairs of the guardians and review their records.",
+ "There is an ongoing concern that orphans’ assets will be protected from potential loss. A beit din is therefore mandated to establish standards of transparency for their affairs and ensure that all investments on their behalf will be pursuant to the standards of professional financial planners. Thus, Rashba mandates that guardians must “deal with orphan’s funds as is customary among professional investors …” ",
+ "The importance of document disclosure is not limited to an inquiry in communal charitable actions; it is also mandated by the rules of civil procedure. Invoking the posture of Rosh, Professor Eliav Shochetman writes:",
+ "A beit din will obligate a litigant to disclose documents … assuming that the party possessing the documents admits that the opposing party has a right in them. In cases in which he does not admit this right, and the opposing party does not assert with certainty that he has a document that can assist him, beit din will refrain from mandating document disclosure. However, if he holds a document which the opposing side argues with certainty will assist him in proving his claims and the other denies it, beit din will obligate him to produce the document in order for the beit din to investigate the matter independently.",
+ "Clearly, then, the halakhic system identifies with the business judgment rule in situations in which there is a need for procedural monitoring of a guardian’s judgment call.",
+ "Does the halakhic system equally endorse judicial scrutiny of a manager’s decision in cases of gross negligence as propounded by the business judgment rule? As we have shown earlier, a manager’s tort liability when he is viewed through the prism of bailment is subject to debate. If, however, we view a manager as an apotropos, a guardian, perhaps we can reach a stronger conclusion. Although the guidelines discussed above relate to guardianship of orphans’ assets, they equally apply to managers of communal foundations. As Rashba notes, “Trustees are akin to guardians of the community.” Rema similarly observes, “The community … is akin to guardians of orphans.” ",
+ "The question that remains is whether a manager qua apotropos is responsible for damages caused by his behavior. An individual is liable for injuries that he or his property causes to someone else. Thus, if an ox causes damage three times, it becomes a forewarned ox (shor mu’ad), and the owner or bailor must compensate full damage for the incurred injury. If the ox belongs to an orphan, it is incumbent upon the beit din to appoint an apotropos who will monitor the ox’s activities and ensure that it will not cause injury or damage property. Is an unpaid apotropos personally liable if he allows the orphans’ ox to become a shor mu’ad, or are the damages collected from the orphans’ assets? The Talmud rules:",
+ "R. Yohanan stated: Payment must be made from the … estate of the orphans; because if … it is out of the estate of the guardians, people would certainly refrain from accepting this office.",
+ "On this basis, R. Hayyim ha-Kohen rules that if a court-appointed apotropos conducts himself negligently with the orphan’s assets, he is exempt from liability. Others, however, including Shulhan Arukh, rule that in such a situation, an unpaid apotropos would be liable for negligence. Although the rationale for the latter position is unarticulated, it is possible that these decisors maintain that the guardian’s desire to assist orphans trumps his fear of being subject to potential litigation for negligent conduct.",
+ "At first glance, according to R. Hayyim ha-Kohen’s posture, there would be grounds for judicial abstention in the case of a guardian’s negligent behavior (although this is a minority opinion). It is possible, however, to strictly construe R. Hayyim ha-Kohen’s position to be applicable to only the case at hand, which dealt with a guardian overseeing the affairs of orphans who were minors. In cases of a guardian monitoring the activities of adults, even R. Hayyim ha-Kohen may concur that there are grounds for liability. Should we accept this conclusion, there is a consensus that a guardian or a gabbai tzedakah who works as a volunteer is liable for judgment calls entailing financial mismanagement or negligent misrepresentation; he will not be shielded from immunity by invoking the business judgment rule within the context of a beit din proceeding.",
+ "In the wake of a derivative suit against a non-profit director, does Halakhah endorse the invoking of the business judgment rule as defined by American law? As we have seen, the business judgment rule in both the for-profit and non-profit contexts is invoked in order to encourage a board to take risks, to create an incentive for directors to serve, and to allow directors sufficient latitude in managing the corporation. Similar to American law, Halakhah endorses the utilization of the business judgment rule vis-à-vis a for-profit board for the above reasons; this is based on an umdana, the expectation that the shareholders will assume responsibility for all the managerial decisions of its directors lest third parties refrain from conducting business with the corporation. This appraisal of intention is grounded in the determination that the director’s conduct is assumed by the corporate entity; it then becomes the communal association’s right to advance claims against their employees. However, under certain conditions, the beit din will scrutinize managerial decisions which fail to comply with the norms of Halakhah.",
+ "As we have shown, the business judgment rule is invoked within the framework of the for-profit corporate sector to determine whether a board decision is rational, made on an informed basis, and is not an instance of gross negligence. Does Halakhah endorse this rule within the non-profit sector? Based upon our review of the norms of apotropos and general civil procedure, the system will endorse the business judgment rule with certain limitations. On the one hand, decisors will agree that judicial review is to encompass the monitoring of a director’s decision to determine whether it is an informed and reasoned judgment. On the other hand, whereas the invoking of the business judgment rule by an American judge will generally result in an abstention from scrutinizing a director’s decision except in cases of gross negligence, a halakhic arbiter will review any and all decisions which entail even instances of simple negligence. However, as noted above, should a review of a decision of a for-profit or not-for-profit corporation mandate an award of damages to a third party, barring any grounds for piercing the corporate veil, relief will be satisfied from corporate assets.",
+ "Conclusion",
+ "We will sharpen our analysis by placing our topic within the context of the two conflicting visions of for-profit corporate governance addressing the stakeholder debate. One view, nurtured by proponents of political liberalism and possessive individualism, has been described in the following terms:",
+ "The individual is not only viewed as independent and separate from others, but to the extent that the existence of God or some other Ultimate Reality is acknowledged, the individual is also viewed as separate from that God/Ultimate Reality … If the individual is perceived as separate and apart from others, the individual’s concern will be the preservation and promotion of the self … The law and economics model, a dominant model for thinking about the corporation and the appropriate role of law in regulating the corporation, is a logical, natural byproduct of this secular view of the person … The secular view of the person discourages thinking of people in communal terms, viewing them solely as atomized, individualized beings … Law here merely ensures procedural fairness, creating a system of equal consideration of the needs and desires of individuals to pursue their individual conception of the good.",
+ "If we adopt the approach, conceptualizing the corporation as representing various contractual relationships which sets the rights and duties of various parties who produce goods or services of the company, there are no grounds for imposing any additional duties on the firm other than those recorded in its web of explicit and implicit contracts. This conclusion equally applies to directors. Although it is subject to debate whether a director is hired by the employees or vice versa, clearly directors are not under the control of anyone, including shareholders; their activities are circumscribed by contract law and the explicit project approval by the stockholders. Fiduciary duties mandate that directors promote shareholders’ interests and thereby maximize profits, subject to legal directives which require factoring into consideration the interests of stakeholder interests only insofar as those interests increase corporate profits.",
+ "Consequently, it is surprising to discover that in Shlensky v. Wrigley, the business judgment rule was invoked, in effect shielding a corporate director who chose to promote social interests instead of profits from liability. Unconcerned whether Wrigley was motivated by public interest concerns rather than corporate profits, since there were no allegations of fraud, illegality, or conflict of interest, the court abstained from reviewing the director’s decision.",
+ "Similarly, in Theodora Holding Corp. v. Henderson and A.P. Smith Manufacturing Co. v. Barlow, the courts argue that directors may factor into consideration non-shareholder interests. Again, absent allegations of fraud, illegality, or conflict of interest, these courts abstained from scrutinizing a director’s decision that did not treat wealth maximization as the sole objective. In short, although the intent of the business judgment rule is to promote wealth maximization, the effect of the doctrine as reflected in these judicial decisions is to insulate a director’s liability regarding a decision which promotes non-shareholder interests.",
+ "Rejecting this conception of a corporation as advocating shareholder wealth maximization, there is a religious conception which offers a communitarian vision of the corporation. Developing the image of a corporation as a human community, one commentator writes:",
+ "As a social being, the person is not merely an autonomous bearer of rights, but part of a community that should be ordered toward the common good … In this vision, the corporation is an institution: (1) that must be dedicated to the flourishing of its employees as human beings; (2) in which the shareholders’ rights of ownership are constrained by duties to others within the corporate community, (3) whose managers must be concerned with the common good; and (4) which … must produce not just wealth, but the conditions under which human persons may flourish spiritually.",
+ "Pursuant to this approach, which has been advanced by religious thinkers and corporate scholars alike, directors should adopt a more expansive view of their corporate duties to employees and consider the interests of non-shareholder interests, such as suppliers and local communities in which the business operates. The pursuit of shareholder-maximization values stems from social norms rather than from law and should be replaced by core religious beliefs which are marked by a communitarian vision. According to such a perspective, the business judgment rule properly understood empowers directors to engage in trade-offs between shareholder and non-shareholder interests and undermines the norm of shareholder maximization of returns.",
+ "How does Halakhah address the notion of regulation of corporate governance which promotes social interests unrelated to profitability? Does Halakhah identify with “the religious outlook,” which is grounded on reciprocal responsibility, or with “the secular perspective,” which subscribes to the profit maximization norm?",
+ "A cursory review of the sources would indicate the importance of exhibiting acts of hessed (kindness) and tzedakah (charity and aid). As Professor Isadore Twersky notes:",
+ "The Jewish theory of philanthropy … has often been discussed … Its centrality in Jewish life and its concomitant importance in Jewish literature … is documented. Many rabbinic statements which stress … the axial role of chessed are frequently quoted … For example, the dictum that “charity is equivalent to all the other religious precepts combined” … A study of the laws of charity yields paradoxical conclusions. On the one hand, it seems that the central figure is the individual … [who] is enjoined to engage unstintingly in charity work, and assiduously to help his fellow man … On the other hand, … Halakhah has assigned an indispensable, inclusive role to the community … Responsibility for the care of the needy – sick, poor, aged, and disturbed – is communal …",
+ "At first glance, one might conclude that a religious climate which promotes individual obligations of charity and fosters the establishment of public assistance programs should serve as grounds for advocating a position for corporate social responsibility. The managers of the corporation must address the social consequences of their actions; an individual is proscribed from operating a business solely on the calculation of self-interest and wealth maximization. In fact, Professor Walter Wurzburger, a rabbi and Jewish philosopher, identifies with such an approach.",
+ "In replying to the notion that Halakhah imposes certain social responsibilities upon each and every individual, Professor Aaron Levine writes:",
+ "These duties do not suddenly disappear within the context of a business entity … Shareholders cannot use organizational structure and chain of command as a mechanism to reduce or abrogate what Halakhah requires of them as principals. In a similar vein, as the agent of the shareholders, the manager must conduct himself with the stakeholders of the firm as Halakhah requires, whether or not the specific situation at hand was covered by his mandate.",
+ "It is evident that a corporate environment must be governed by the systemic norms of halakhic business law, including but not limited to labor relations, pricing, selling, advertising, and trading policies, as well as environmental safeguards. However, Professor Wurzburger argues that there is an individual mandate to act with beneficence towards one’s fellow man and affirm local custom which promotes philanthropic initiatives. It would therefore be laudable for a corporation to be socially responsible and fund public assistance programs and the like.",
+ "In our view, Professor Wurzburger’s objection to the shareholder wealth maximization norm is in actuality a broader attack on capitalism and on economic self-aggrandizement in particular, reflecting unawareness of the continuous halakhic affirmation of profit maximization, albeit within the constraints set by the system. Consequently, whereas some proponents of shareholder wealth maximization would argue that subsistent wages and substandard working conditions, environmental pollution, workplace toxicity, unsafe products, and employment discrimination based upon race and sex may be beyond the purview of corporate and shareholder concerns, Halakhah would argue that these matters are required to be addressed and regulated by the corporation.",
+ "On the other hand, many halakhic legists would agree with proponents of shareholder wealth maximization that advocacy and funding of social programs are beyond the province of the corporate venture. Participants in the corporate form of business have chosen to enter an entity which pursues the goal of maximizing profits, a legitimate activity. Hence, corporate altruism is appropriate only if it is likely to furnish direct benefits to the corporation and profits to its shareholders. However, funding such projects for the sake of advancing the common good is beyond the ambit of corporate life and thus beyond halakhic reproach. Whereas American law, as expressed in Shlensky v. Wrigley and other holdings, would shield a director’s decision for invoking corporate altruism as grounds for judicial scrutiny, Halakhah would argue that such behavior undermines the corporate interest in maximizing profits and therefore would pass judgment upon such activity.",
+ "Without delving in a systematic fashion to prove our position, we can reinforce our view based upon halakhic partnership law. Since partners are construed as agents, Arukh ha-Shulhan notes:",
+ "There is an important principle regarding business partnerships: As long as no one deviates from commercial practice in matters that were not agreed upon and one is not negligent in engaging in business, one can negotiate for his partner no different than if it was his own business.",
+ "In short, a cardinal rule of operating a partnership is that it is predicated upon how the partners conceived of the enterprise. If the raison d’être of the enterprise was to maximize profits, then a partner cannot unilaterally decide to embark on furnishing scholarships to the children of employees or donating funds to an educational institution. Such projects undermine the accepted agency law of “li-tekuni shedartikh ve-lo le-avati,” “it is for my benefit that I have commissioned you to act, not to my detriment.” As a partner, he serves as a shomer (bailee), and as such, his diversion of funds to such projects without prior authorization is an act of shelihut yad, misappropriation. Clearly, if a deviation from details may subject a partner to liability, a fortiori a substantive modification of the mandate, such as the introduction of social programming, will fail to pass muster. Analogously, a corporate manager or an executive is proscribed from deviating from the shareholder mandate to maximize profits and begin to initiate such social programs. If proponents of corporate social responsibility want to reform the activities of the corporation, they should seek redress and implement their objectives through the political process.",
+ "Alternatively, as we explained earlier, the corporation entails a network of private contractual relationships. As such, should recent legal commentary become law empowering shareholders to initiate decisions which amend the corporate charter and intervene in corporate decision-making, then the shareholders, who are owners of the firm, may vote to approve such social activities. Pursuant to the amended charter, the directors would be obligated to initiate social programs unrelated to profitability. However, in the absence of such a mandate, Halakhah would have found that the director’s actions in Shlensky v. Wrigley, Theodora Holding Corp. v. Henderson, and A.P. Smith Manufacturing, which placed the interests of non-shareholder constituencies ahead of those of shareholders, were grounds for the director’s liability.",
+ "In short, the stakeholder debate has argued that “the religious outlook” inexorably leads one to a communitarian vision and therefore advances the notion of corporate social responsibility unrelated to profitability; the halakhic legal system, although imbibing a religious communitarian vision, nevertheless concludes that the shareholder maximization of wealth remains subject to certain halakhic legal constraints, such as imposing liability on a director who renders decisions which implement non-shareholders’ interests.",
+ "Thus, whereas the implementation of the business judgment rule by an American court implicitly promotes the profit maximization norm and serves to insulate the directors and officers from liability for their corporate decision-making as long there is no illegality or conflict of interest, halakhic decisors will scrutinize the actions of directors in corporate as well as non-profit settings, and if the facts deem the behavior improper, will look askance at such conduct and may pierce the corporate veil. At the same time, unless the corporate charter and/or a statute permit the factoring of the public interest into a corporate decision, Halakhah, unlike American law, will affirm the obligation of corporate employees to maximize profits even at the expense of non-shareholder interests.",
+ "As we have demonstrated, the scope of halakhic intervention is far more expansive than that of an American court. In situations in which American courts abstained from scrutinizing a derivative suit based on the business judgment rule, Halakhah would have mandated an inquiry. Whereas in American law, by dint of its secular nature, the scope of justiciable disputes is more circumscribed, Halakhah, as a religious legal system, mandates judicial inquiry of such disputes. As the former Deputy President of Israel’s Supreme Court, Menachem Elon, observes:",
+ "The system (as a whole, which includes the legal and the religious part of Halakhah) is a system of prohibitions and permissions, and the system does (in this sense) relate to all activities of man … There is no such thing as a “Jewish legal vacuum.” The system of Halakhah, by its very essence, embraces all interpersonal and societal relations; all ethical, social, national issues or legal questions find a place within the system of Halakhah … However, the legal world, as our world exists today, is a limited world … limiting itself to those actions that have normative legal ramifications; contrasted with those are the numerous varied activities which are organized in accordance with social and ethical norms that exist outside the legal spectrum.",
+ "We can sharpen our conclusion by adopting a jurisprudential framework suggested by a contemporary legal scholar of corporate law. He distinguishes between legal norms and social norms:",
+ "I use the term social norm to mean all rules and regularities concerning human conduct other than legal rules and organizational rules. By legal rules, I mean the principles and rules of a legal system. By organizational rules, I mean formal rules adopted by private organizations … I now turn now to the role of social norms in corporate law. I use the term corporate law here in a broad but standard sense to mean those areas of conduct that are within the scope of corporate law … Often, the operation of social norms is at or near the surface of corporate law. For example, some corporate law doctrines explicitly incorporate social norms. Thus, the ALI’s Principles of Corporate Governance provides that a corporation may take into account ethical considerations, even if corporate profit and shareholder are not thereby enhanced.",
+ "Applying this framework, our focus here is the factoring of non-shareholder interests in a corporate director’s decision, which is an illustration of social norm that is not explicitly incorporated into corporate legal rules. Clearly, a director is not obligated to promote public interest at the expense of shareholder profits. On the one hand, the corporation conceived as a nexus of agreements entailing legally enforceable promises is governed by legal rules. However, on the other hand, these reciprocal arrangements do not mandate compliance with social norms, such as the promotion of non-shareholder interests.",
+ "The stakeholder debate involves a debate regarding whether to adopt a social norm into corporate life. In other words, what is the goal of the corporation – the pursuit of profits or the pursuit of social needs unrelated to wealth maximization? Due to the dispute regarding the incorporation of a social norm into the corporate world, the court in Shlensky v. Wrigley abstained from addressing this matter. A secular court will only address issues of noncompliance with legal rules, such as fraud, or certain potential non-compliance with legal rules, such as conflicts of interests and uninformed corporate decisions. Other social norms are beyond the purview of the court, and the business judgment rule is therefore invoked regarding such matters. On the other hand, Halakhah, as a religious legal system, advances a more expansive conception of legality. Thus, certain activities which may be labeled as social norms in a secular system, and are therefore considered non-justiciable, will be viewed by Halakhah as legal norms, and their infraction will therefore be subject to legal scrutiny and possible sanction."
+ ],
+ "Chapter 3; Recovery for Infliction of Emotional Distress; Toward Relief for the Agunah": [
+ "Recovery for Infliction of Emotional Distress: Toward Relief for the Agunah",
+ "In 1994, Avraham and Sarah Cohen were married in accordance with the Halakhah. Children were born to them. After five years of marriage, tensions between the spouses began to surface, and the couple began to live separately under the same roof. Though the wife desired to engage in conjugal relations with her spouse, her husband willfully and unjustifiably refused to engage in sexual relations with her. For the sake of their children, both husband and wife remained outwardly married, but in actuality lived separately in the marital home for five years.",
+ "Given the moribund state of her marriage, in 2004 Sarah Cohen sought a bill of divorce (get) from Avraham Cohen, her husband of ten years. Both spouses, being observant American Jews, considered themselves bound as much by Jewish as by civil law. Both appeared before a beit din, a rabbinical court, and it was resolved that it was proper that the parties divorce. However, the husband initially refused to give his wife a bill of divorce. According to the Halakhah (Jewish law), dissolution of the matrimonial bond requires the voluntary agreement of both spouses, and failure of one party to assent to the divorce action precludes execution of the divorce. Coercing a recalcitrant spouse to grant a get produces a divorce that is arguably invalid (get me’useh). Without a valid divorce or rabbinic dispensation (in the case of a recalcitrant wife), neither party may remarry without violating the norms of Halakhah.",
+ "As a result, in the case at hand, the wife became an agunah, a “chained woman,” unable to remarry because of her husband’s refusal to grant her a get. If she remarries without having received a get from her husband, she is, in the eyes of Halakhah, an adulteress. Any children born to her from a new relationship will be mamzerim, that is, offspring of a prohibited sexual relationship, and thus unable to marry most other Jews.",
+ "Outraged and emotionally distraught due to her husband’s intolerable behavior during their marriage, Sarah Cohen wants to file a rabbinical court claim against her husband for the infliction of emotional distress during the five years of separation prior to the court’s directive recommending divorce. Her experience of mental anguish, she argues, was not the ordinary stress attendant on living in an imperfect world, but severe mental injury. Despite her emotional distress, however, she never utilized the services of a therapist, and thus did not submit a claim for therapeutic expenses. Although not a victim of spousal violence, her husband’s insensitivity to her feelings and outrageous behavior inflicted severe emotional distress, she argues, and this distress ought to be sufficient grounds for recovery of damages.",
+ "I.",
+ "Can a psychologically-injured person recover damages when no physical harm accompanies the mental anguish? Prior to the granting of a get, can this agunah submit a claim against her husband in a rabbinical court for the period of their marriage during which she was precluded from engaging in conjugal relations, or might such a course of action be taken as constituting a form of duress that could taint any subsequent get?",
+ "In the absence (to the best of my knowledge) of any hiddushin (novella), sefer psak (restatement), teshuvah (responsum,) or psak din (published rabbinical court ruling) addressing this question, deciding between competing arguments is the decisor’s prerogative. As I will show, a fourteenth century teshuvah (responsum) by R. Yitzhak ben Sheshet (Rivash) recognizes such a claim in a ruling authoritatively cited by Rema. I will show that a present-day rabbinical court’s authority to address the claim of spousally-inflicted emotional distress can be grounded in various codified rulings and numerous teshuvot (responsa) that address defamation of character and broken engagements, particularly a 1965 rabbinical court decision handed down by R. Yosef Elyashiv, widely acknowledged to be one of the generation’s greatest Torah scholars. To establish the legitimacy of accepting a wife’s claim for damages due to emotional distress without running afoul of the strictures against coerced divorce (get me’useh), the positions of R. Shlomo Daichovsky, R. Elyashiv, R. Moshe Feinstein, and R. Shilo Rafael will be adduced. The spectrum of views on this matter attests to the vibrancy of the halakhic process, which does not require us to gloss over differences and force disparate approaches into a Procrustean bed for the sake of forging a neat, coherent, and persuasive position. This article will examine the relative strength, effectiveness, and plausibility of each argument applicable to our case, in the hope that these arguments will be tested within the framework of future rabbinical court decisions.",
+ "How does the Halakhah address liability for mental anguish in general, and its emergence due to a husband’s refusal to engage in conjugal relations in particular? With these questions in mind, let us consider the following passage from Tractate Kilayim of the Talmud Yerushalmi:",
+ "If the owner struck opposite the eye [of his Canaanite slave] and blinded him, opposite the ear and deafened him, the slave does not go free … The slave could have escaped [before the blow]. The proof that this is correct is that it is stated: If he held him [preventing him from escaping], he is liable.",
+ "The rule of non-liability in the case of fright and shock is predicated on the fact that the slave did not attempt to escape the consequences of the blow. As such, if he is held down by the injurer (mazik) and cannot escape the blow’s impact, the injurer is liable. Commenting on this passage, R. Moshe Margaliot concludes that if the owner holds him and frightens him, he is liable. In his opinion, although frightening is equivalent to physically holding him down, liability for the ensuing mental anguish is incurred only if the injurer holds down the slave, and not if he merely frightens him. R. Meir Halevi Abulafia (Rama), disagrees, arguing that if the injury could not have been prevented, there is liability for fright and shock even absent direct physical contact.",
+ "On the other hand, the Talmud Bavli states:",
+ "Come and hear. If he hit him in the eye and blinded him or on his ear and deafened him, the slave goes out free thereby. If he struck an object that was opposite his eye and blinded him [e.g., pounded on the wall opposite the slave’s eye, causing him to become blind] or if he struck an object that was opposite his ear and deafened him, he does not go out free. Is not the reason for this rule that assessment [of the plausibility that injury was caused by the blow] is required [and it is assumed that the said activity might not have caused the injury to the slave]? No. The absence of tort liability is predicated on the fact that he [the slave] frightened himself. As it was taught: If one frightens another, he is not liable by the law of man, but he is liable by the law of heaven. If he blew [with a trumpet or the like] into his ear and made him deaf, he is not liable. But if he held him and blew into his ear, and made him deaf, he is liable.",
+ "Absent physical contact and physical damage, one who frightens another does not thereby incur liability. Relying on the Talmudic rationale that the one who is frightened is a rational person and scared himself, Rif, Ran, Rashi, R. Menahem Meiri, R. Shimon ben Tzemah Duran, and R. Feinstein all conclude that every individual who ventures out into the world assumes the risk of injury, exposes himself to unexpected trauma, and should try to be more thick-skinned rather than burden others with responsibility for his emotional weaknesses; failure to inure oneself to the routine stresses of existence bars recovery for any ensuing psychological injury. Translating this position into contemporary legal terminology, non-liability is due to contributory negligence. Hence, unless the fright and shock was caused by physical impact, the injurer is exempt from liability. Maharshal and Ra’avad argue that the fright and shock could not have caused the injury, since the generally accepted assessment (omed) is that that fright and shock do not suffice to cause emotional scarring. Others, such as Rosh, Tur, Mordekhai, and R. Meir mi-Rotenburg, argue that there is no liability for an injury that is caused indirectly. In Talmudic parlance, this is a case of gerama, and the principle is, “gerama be-nezikin patur” – that is, there is no liability for indirectly-caused damage.",
+ "What emerges, then, from the Talmud Bavli is that non-liability for emotional stress is based on one of the following rationales: It falls into the category of gerama; there is no connection between the act and the injury; one must exercise emotional self-control with regard to the stresses of life. A minority view, reflected in Yerushalmi Kilayim and Rema’s position, claims that even without physical contact, there may be liability for emotional stress.",
+ "The common denominator of all these approaches is that shouting that engenders fright and shock in and of itself is an act (ma’aseh) that generates legal liability if accompanied by physical contact. In the absence of physical contact, the act of shouting only generates liability for fright and shock according to the laws of heaven. Hence, although a husband’s refusal to engage in conjugal relations with his spouse may generate feelings of emotional stress, the absence of an act causing these feelings precludes liability even according to the laws of heaven. Thus, with respect to indirect injury (garmi/gerama), the strict law of damages does not mandate recovery for emotional stress.",
+ "II.",
+ "Having discussed the black-letter law concerning damages, and having attempted to delineate the rules governing recovery for mental anguish, let us consider another dimension of recovery for mental anguish. Though the Halakhah mandates that those who decide legal questions do so in compliance with rules rather than on the basis of whim or bias, it countenances and indeed encourages the exercise of judicial discretion. Judicial discretion, a familiar notion in both halakhic and western legal thought, can be defined as the judge’s “power to choose between two or more courses of action each of which is thought of as permissible.”",
+ "Addressing this second layer of halakhic law of damages, Professor Aaron Schreiber declares:",
+ "Halakhah, with its emphasis on rules, might mistakenly be understood as being positivistic and ignoring policy. It might be thought that a legal decision, especially by a court or other religious legal authority, is (and should be) reached on any issue of law simply by determining the applicable legal doctrines and principles. These would then be analyzed logically and deductions would be made therefrom until a “legal” decision would be reached. The legal decision would be dictated solely by the application of deductive logic to these a priori legal rules and principles, without regard to policy … Policy, societal conditions and context would be overtly ignored.",
+ "In fact, however, as we will show, the decisors sought to address the issue of recovery for emotional stress by moving beyond the formal rules of damages and invoking the arbiter’s discretionary capacity, and specifically the capacity to exercise “emergency powers.”",
+ "Compensation is paid to an injured party for five elements of damage: nezek (loss of capacity to work), tza’ar (pain), ripui (“healing,” medical expenses), shevet (loss of income during convalescence), and boshet (shame and embarrassment) — as assessed by the arbiter. Imposition of these payments is conditional on the injury’s having been caused by a physical act.",
+ "Prior to the mid-fourth century CE, arbiters who had received ordination (semikhah, “the laying on of hands”) were authorized to resolve both ritual and civil matters, including damages by individuals. After the lapse of the ordination process, non-ordained arbiters, namely, community leaders and lay arbiters (beit din shel hedyotot), were granted authority to resolve cases involving common injuries that caused the injured party a financial loss. However, the compensation for such bodily injuries that could be imposed by the said arbiters was limited to two elements – loss of income and medical expenses. By law, then, claims of liability due to shame and embarrassment (boshet), for example, though arising from bodily damage ensuing from a physical act, could not be submitted to a non-ordained arbiter for adjudication, since there was no loss of income.",
+ "Although certain matters are excluded from the jurisdiction of non-ordained arbiters, nevertheless, pursuant to normative Halakhah, ordained and non-ordained arbiters are empowered to exercise exigency jurisdiction both in matters of civil damages, such as boshet, and in matters involving capital punishment, under the Talmudic rubrics of “beit din makin ve-onshin she-lo min ha-din” (a court may mete out punishment not prescribed by the Torah), “le-migdar milta” (protective measures), and “ha-sha’ah tzerikhah le-kakh” (the times demand it). The arbiters’ punitive powers are not limited to criminal matters, then, but encompass civil matters as well. To promote broader policy goals, arbiters are authorized, in certain circumstances, to deviate from the letter of the law and impose actual and/or punitive damages.",
+ "Some of the basic policy goals in Halakhah as expressed in broad classifications at a high level of abstraction, are: to bring the spirituality and holiness to God down to earth and, through operative principles, to inculcate them into mundane matters and conduct in the finite world; to sanctify God’s name … to preserve life and the law … to act for the benefit of individuals and society, by not harming them and making life pleasant; to preserve modesty and morality … to improve society by correcting inequities … to maintain public order …",
+ "Granting the arbiter discretion allows his decisions to be shaped by the aforementioned goals. In effect, the halakhic system encompasses exigency law, a juristic technique for effectively resolving problems for which the strict law has no efficient solution, so that the covenantal faith community’s basic objectives can be realized.",
+ "But what constitutes an “exigency situation?” Three approaches to its definition can be found in the writings of the Later Authorities:",
+ "Falk, in his commentary on Karo, attempts to delineate express guidelines. He states if all the people are not dissolute as to certain matters, an individual may not be punished under this authority unless he is a habitual wrongdoer … Shakh views this analysis as an appropriate restatement of the principles as derived from the Talmud and as codified by the Tur. Falk’s approach is cited with approval by … Netivot, and Beer Hagola.
Shaar Ephraim … held that only if many people in the community are engaging in this type of conduct may an individual be punished.
This opinion … is in conflict with the holding of Falk and Maharam. For Falk holds that even where the majority of the people are not dissolute, if the individual is dissolute he may be punished by the court invoking its extrajudicial power. And Maharam holds that even if the community is not dissolute or the individual is not dissolute, if a court feels that failure to punish this person may cause other people to feel that they might act in a similar manner with impunity, the court may impose extrajudicial sanctions on the individual. In short, as enunciated by Maharam, extrajudicial authority may be invoked by a court in any situation when it feels that sanctions are necessary to deter potential misconduct. Shaar Ephraim, by contrast, would limit the court’s authority to situations where the community has, in fact, engaged in such misconduct.",
+ "On all three views – namely, the views of R. Yehoshua Falk, Sha’ar Ephraim (R. Ya’akov Katz, 1616–1678), and the Maharam of Lublin – if the individual is a habitual wrongdoer with regard to a certain practice, or has frequently committed a transgression in public, and many members of the community, by engaging in this misconduct, have shown themselves to be dissolute (parutz ba-aveirot), an emergency exists if the individual will continue violating the halakhic norm unless he is punished. Under these circumstances, a rabbinical court may exercise extrajudicial authority (le-migdar milta) as a deterrent, to forestall the danger that others will emulate the wrongdoer’s behavior if it goes unpunished.",
+ "Who is authorized to impose such extrajudicial sanctions? What types of non-ordained arbiters possess such authority? On the view of Rosh, R. Yosef Karo, and Maharshal, such authority may be exercised by the greatest scholar of the generation. R. Yoel Sirkes (Bah), in the name of R. Yeruham, holds that the greatest scholar of the generation may impose these extrajudicial sanctions even if he has not been accepted by the community. Meiri, R. Karo, R. Moshe Isserles (Rema), R. Mordekhai Jaffe, R. Yehoshua Falk, R. Ya’akov Lorberbaum of Lissa, and R. Yehiel Michel Epstein claim that exigency rulings can also be handed down by communal leaders, generally laymen, who have been appointed arbiters by their community (beit din shel hedyotot).",
+ "Given that the law authorizes such exigency rulings, some contend that laymen are empowered to impose severe penalties. Indeed, during the thirteenth and fourteenth centuries in the Spanish provinces of Catalonia, Majorca and Valencia, Jewish communities had an institution known as the “board of inquiry into transgressions” (berurei aveirot). Authorized by the king of Spain, these lay courts would contract communal loans, sell communal property, render decisions regarding financial matters (such as taxation and wills) and personal status claims, and in certain communities even had the power to administer oaths to litigants and witnesses and to excommunicate offenders. Moreover, as numerous teshuvot by Rashba, R. Yitzhak ben Sheshet, and others attest, the berurei aveirot, as custodians of religious rectitude and order, were authorized to mete out criminal and monetary sanctions for ritual and moral offenses that were eroding the communal fabric. As grounding for the institution of berurei aveirot, the halakhic authorities invoked the classic Talmudic sources that provided for exigency authority in these matters. Indeed, no rabbinical discussion of the legitimacy of criminal sanctions and fines for civil injuries so levied was deemed necessary. Following in this tradition, R. Tzemah ben Shalom Duran, R. Yehoshua Falk, Halakhah Pesukah, R. Z. Goldberg, and others recognize the authority of lay communal arbiters to impose these types of sanctions in emergency situations.",
+ "Whether a contemporary rabbinical court has the extrajudicial authority to impose a criminal or monetary sanction, such as punitive damages, on a habitual wrongdoer who is part of a dissolute community where many engage in the same improper behavior will depend on whether a non-ordained panel of arbiters has the jurisdiction to wield this type of authority. The authority of a non-ordained panel of arbiters is predicated on both parties’ willingness to submit their claims to this body. If one party refuses to accept the authority of a communal rabbinical court, the signing of an arbitration agreement (shtar borerut), which requires both parties to submit to the panel’s authority, provides a way to resolve a claim by imposing damages.",
+ "III.",
+ "Let us now revisit our hypothetical case of a husband’s denying his wife conjugal relations and thereby causing her mental anguish. Assuming a contemporary rabbinical court is empowered to have recourse to extrajudicial authority in exigency situations, it must be decided if the circumstances in question indeed constitute an exigency situation. Does a husband’s refusal to engage in sexual relations constitute wrongdoing of the sort that creates an exigency situation that may entitle the victim to damages? Consider the following Talmudic dictum:",
+ "R. Eliezer ben Ya’akov said: A man must not marry a woman if it is his intention to divorce her, as it is said, “Devise not evil against your neighbor, seeing he lives securely by you” (Proverbs 3:29).",
+ "As the Sefer ha-Hinukh explains, in such a situation, the wife is considered a married woman, yet the husband views her as a divorcee. Entering into a marital agreement requires both spouses to have the same mental intent vis-à-vis the marriage, viz., the intention to remain married to each other. A marriage that is factually dead, that is, in which the spouses do not engage in conjugal relations, yet the husband either remains under the same roof, moves out of the marital home while remaining formally married for the sake of the children (or other reasons), or refuses to grant a get, is deemed a violation of the law by Rambam, Tur and Shulhan Arukh. R. David ben Shmuel ha-Levi interprets the aforementioned Talmudic dictum as follows: “Even though it is permissible to ‘devise evil,’ that is, to divorce one’s wife, in accordance with the law … he who desires to do so should do so [soon], and not delay the divorce. Therefore the verse states, ‘he lives securely with you’ – this is the essence of the prohibition.”",
+ "That is, a husband’s unwillingness to have sexual relations with his wife, whether due to a personal vendetta, sheer hatred of his wife, or a desire to gain financial concessions with respect to a divorce he is contemplating, involves a violation of the injunction “devise not evil against your neighbor, seeing he lives securely by you.” The psychological consequences of violation of this norm, namely, tza’ar (mental anguish) are recognized by the Halakhah. Denying one’s wife conjugal relations during an ongoing marriage in which no divorce is impending or she is unaware of any contemplation of divorce on her husband’s part prevents her from engaging in sexual relations with someone else, as she remains a married woman. The mental anguish involved in this situation to some extent parallels that facing the agunah, the “chained” woman who is prevented from remarrying because of her husband’s refusal to grant a divorce.",
+ "Among a husband’s monetary obligations and rights vis-à-vis his wife are the obligations to provide maintenance and pay for ransom and burial expenses; he has rights to articles his wife finds and to be her sole heir. Another halakhic consequence of marriage is the establishment of spousal property relations. One of the rules governing these relations is that “in financial matters (mamon), one’s stipulation is valid.” That is, in monetary matters such as spousal support, one may make stipulations contrary to biblical law. However, where no such private stipulations have been agreed to by the couple, the biblical rules are default rules that govern the marital relationship. Do private arrangements extend beyond the realm of monetary affairs into the sphere of personal matters? Can a husband stipulate that he is under no duty to have intercourse with his wife? If the husband stipulates that he is under no obligation to engage in conjugal relations, such a stipulation is invalid. Expounding the biblical verse, “her conjugal rights he shall not diminish,” and the concept of shi’abud (servitude) in the realm of conjugal relations, the Netziv, R. Naftali Tzvi Yehuda Berlin, writes:",
+ "Reason tells us that man is so duty bound. It is, as we all know, for this purpose that a bride enters into marriage … Hence, if he denies her sexual relations, she is deprived of her right. Sexual fulfillment is primarily the husband’s duty and the wife’s entitlement. Sexual relations are the essence of marriage and depriving a woman of this right creates “tza’ar gufa,” that is, emotional pain.",
+ "Withholding sexual intercourse (onah) causes emotional scarring and may have repercussions for the future of the marriage. This awareness of emotional hurt is underscored in other contexts. For example, the Talmud debates whether, given the tension and mental anguish that arises from spousal conflict, the execution of a divorce is a boon for the wife, or whether, notwithstanding marital tensions, the wife nonetheless prefers the gratification of her bodily desires (niha de-gufa) to divorce. The Talmudic conclusion is, “tav le-meitav tan du mi-le-meitav armelu” (It is better for two to dwell together than to dwell alone). The underlying idea here is that a woman has a compelling desire for marriage, such that she will even accept a degree of routine quarreling and marital strife. The assumption is that given that a woman’s need for sexual relations through the husband’s fulfillment of the “conjugal rights” precept is an existential fact and not conditioned by contingent social or cultural factors, a woman prefers to remain married. Hence, a husband’s refusal to engage in sexual relations undermines his wife’s ongoing emotional stability.",
+ "However, a wife may seek to opt out of a deteriorating relationship when the spouses do not engage in conjugal relations though residing under the same roof, or while de facto separated from each other. The husband’s withholding of a get under these conditions results in an untenable situation:",
+ "The daughters of Avraham remain grass widows with living husbands. They are left starving, thirsty, and destitute. And we should be apprehensive lest they become involved in objectionable conduct … Moreover, these women are young and nubile [and will not be able to wait indefinitely].",
+ "The Rabbis likened the situation of such a woman to that of a moribund individual in imminent danger of death (goses). While withholding a get does not constitute murder per se, in the eyes of R. Yosef Henkin, the prohibition against it is a stricture ancillary to the prohibition against murder (avizrayhu de-retziha).",
+ "Moreover, the husband may compound the injury by dismissing the harm, arguing that one who suffers emotional pain has only herself to blame, and that emotional distress is a transient psychological and/or culturally conditioned behavioral pattern rather than an existential fact.",
+ "Given the wife’s emotional distress, we are dealing with a husband who, in keeping his spouse from engaging in sexual relations, is a habitual wrongdoer who will continue to violate the law unless he is punished. If many in the community are dissolute (parutz be-aveirot), in that they engage in similar misconduct, or are at risk of doing so, an exigency situation can be said to exist. Under these circumstances, can a rabbinical court today exercise extrajudicial authority to forestall the danger that, should the behavior of the husband in question go unpunished, others will emulate the offender? Let us first analyze the emotional distress being perpetrated by the husband.",
+ "Above, we noted that according to the strict law (dinei nezikin min ha-din), there are five aspects of personal injury for which compensation is paid: 1. nezek (loss of capacity to work due to the permanent loss of a limb); 2. tza’ar (pain resulting from physical contact); 3. ripui (healing, viz., medical expenses); 4. shevet (loss of income during convalescence); 5. boshet (shame and embarrassment).",
+ "Under which category of damage does infliction of emotional distress fall? Though, according to the strict law of torts, the term tza’ar is associated with physiological pain rather than emotional distress, in the context of exigency jurisdiction, it can be taken to have its ordinary sense, that is, to encompass emotional distress. Alternatively, mental anguish could be categorized as boshet. In the psychological and philosophical literature, shame is intimately connected to the victim’s sense of self and the presence of those who confirm one’s self-esteem. The Halakhah defines shame as the consequence of an injury generated by physical contact witnessed by a third party. On this view, shame is not simply the humiliated party’s subjective feeling, which was generated by physical contact (such as a slap, spitting, and so on) between the parties, unrelated to any third party’s awareness of the act. Rather, shame is the feeling of humiliation accompanied by the knowledge that others are aware of the event causing the victim’s discomfiture, and the resulting diminution of his sense of worth. The Talmud asks whether, if the victim is unaware of the humiliation (as for instance, if, while asleep, someone disrobed him, and he subsequently died in his sleep, unaware of the incident), other parties who have been indirectly humiliated, such as family members of the directly humbled party, can sue for boshet. Can the heirs sue for family humiliation? If liability depends on third party awareness, there should be no liability in such a case; if liability is grounded in the victim’s feelings of shame, then given his unawareness, the injurer should be exempt. The Talmud’s view is that though family members were indirectly humiliated, a boshet claim arises only if the victim himself experiences shame, and in the case of the disrobed sleeper, the injurer is exempt.",
+ "But shame has a broader sense than that addressed by the black-letter Halakhah, as it can extend to the humiliated party’s subjective feelings even in the absence of physical contact between the injurer and the victim, or where there are no third party witnesses. By law, someone expectorating mucus or phlegm that comes in contact with someone else’s skin is liable to pay for boshet; if, however, the expectoration damages only the other party’s clothing, he is exempt from paying compensation for boshet. In the absence of physical impact, the court cannot hold the offender liable. Note that this is in line with the principle that holding someone down while shouting in his ear establishes liability. Damages for expectoration of mucus that comes in contact with someone’s clothing generates liability, not on the basis of the strict law, but on the basis of exigency law.",
+ "Yet breaking an engagement, which likewise does not entail physical contact, may conceivably generate liability for boshet. This has been argued for not by adducing the jilted party’s embarrassment that people are aware of what happened, but rather on the grounds that breaking an engagement leads to a decline in the jilted party’s social status, and reduced prospects for finding a spouse. A different argument was put forward by R. Yosef Shaul Nathanson:",
+ "Shame is that which touches one’s body. Therefore, when it does not touch his body, he is exempt. Yet an engagement has impact on the rational soul and is much worse than physical injury, hence with regard to broken engagements, even in the absence of physical contact, there is liability. And one who verbally embarrasses his friends will not have a share in the world to come, even though he did not physically injury him.",
+ "On this view, boshet devarim (verbal embarrassment) is not limited to verbal insults or defamation of character. It also encompasses emotional distress unaccompanied by physical contact and unrelated to third party awareness, such as the emotional fallout generated by broken engagements.",
+ "Antecedents for this type of boshet can be found in a Jerusalemite practice from Talmudic times: If someone entrusted preparation of a meal to someone else, who spoiled it, the latter had to compensate the host for the insult to him and to his guests. Liability for the host’s embarrassment ensues from his being publicly embarrassed by the spoiled meal. Liability for guests’ embarrassment is grounded in their mental anguish for the host who wanted to serve a delicious meal; the Talmud identifies these “third-party” feelings as boshet too.",
+ "Analogously, the husband’s misconduct may be taken to cause the wife distress that, from the halakhic perspective, gives rise to liability for boshet. Just as a broken engagement by its very nature generates feelings of mental anguish, that is, boshet, unrelated to any physical contact or verbal remarks, a husband’s denying his spouse conjugal relations generates emotional stress, that, though there is no accompanying physical contact or verbal insult, should be categorized as boshet.",
+ "Given that intentional infliction of mental anguish is akin to boshet devarim, can this claim be resolved by a rabbinical court? While, according to the strict law, there is no remedy in cases of boshet involving no physical contact, a rabbinical court, whether or not its members are ordained judges, does have the extrajudicial power, “in every locale and at all times,” to benefit the community by imposing criminal sanctions and holding the wrongdoer liable for damages for boshet devarim.",
+ "At first glance, such a conclusion might seem unfounded. The Shulhan Arukh rules that only ordained arbiters residing in the Land of Israel can assess a specified penalty established by the Torah (kenas katzuv) for personal injuries, and today, all arbiters are non-ordained and hence lack the authority to mete out such penalties. How, then, can a rabbinical court today award damages for boshet? As we have explained, on the strength of exigency law, even non-ordained arbiters are empowered to mete out penalties known as “fines imposed by the Rabbis” (kenas hakhamim), such as payments for boshet-related injury.",
+ "The actual implementation of these powers concerning boshet related injuries is not limited to Talmudic era rabbinical courts, but has been applied in contemporary times. For example, in 1965, invoking their exigency authority, members of the Supreme Rabbinical Court in Jerusalem, Rabbis Abudi, Elyashiv, and Goldschmidt, marshaled numerous responsa to support the position that damages for boshet can be awarded in the case of a broken engagement. In the words of R. Elyashiv, who authored the psak din:",
+ "There is a consensus that a rabbinical court is empowered to impose corporal punishment or social shunning (nidui) until he assuages the [hurt] feelings, yet this will not be accomplished through boshet payments pursuant to the law, but rather, everything is resolved in accordance with the specifics of the matter, the times, and the arbiters’ discretion.",
+ "Adopting R. Elyashiv’s position, subsequent Israeli rabbinical courts have invoked their extra judicial authority and imposed boshet payments for broken engagements.",
+ "It remains to identify the specific reason infliction of emotional distress by refusal to engage in conjugal relations serves as grounds for awarding boshet damages. Is it a “le-migdar milta” (a protective measure) or is it due to “the needs of the time?” Is the emotional fallout from spousal refusal of conjugal relations like the mental anguish resulting from a broken engagement? On the one hand, this type of distress does not result from any physical injury or impact. Is it, then, like being spat on (where the spittle lands on one’s clothing and does not touch one’s skin), being called derogatory names, or being jilted by a fiancé? On the strength of a court’s authority to invoke its exigency jurisdiction in all these aforementioned situations, the injurer can be fined. It would seem that this should apply to our scenario as well.",
+ "The Talmud and halakhic authorities, however, exhort us to refrain from making rules that impose a fine in one realm on the basis of laws pertaining to a fine in another realm. The halakhic authorities do have recourse to analogical reasoning to identify similarities and differences between cases (medameh milta le-milta) so as to address new situations, but does this allow us to establish a new rule governing a particular fine from a rule pertaining to another fine? For example, the Mishnah gives examples of liability for imperceptible damage. The question then arises whether the laws governing the specified sorts of imperceptible damage can encompass other sorts of imperceptible damage. One school of thought argues that since monetary penalties are involved, the list cannot be added to, as this would constitute establishing a new penalty. Despite putative similarities between two situations, arbiters are not to derive new penalties by analogical inference from existing penalties. On this view, though absence of physical contact appears to be a common feature of spitting on someone else’s clothing, defamation, and emotional distress due to spousal refusal to engage in conjugal relations, this putative analogy cannot serve as a basis for expanding the sphere of exigency law to encompass the latter.",
+ "On another opinion, however, the Talmud’s rejection of analogical inferences from one penalty to another is applicable only in the context of black-letter Halakhah. With respect to matters falling under the rubric of le-migdar milta, however, analogical inferences are permissible. On this view, if the injury caused by a broken engagement can be subsumed under the category of boshet devarim by analogical inference, so too emotional distress due to spousal refusal to engage in conjugal relations can be classed as falling under boshet devarim. The question, then, is whether breaking an engagement in a manner that humiliates the aggrieved party constitutes boshet devarim. One responsist argues that breaking an engagement should be on a par with all types of boshet, including boshet devarim, and the arbiter should handle it accordingly as a “protective measure.” Another contends that it is analogous to the case of spitting on someone’s clothing. If a rabbinical court can invoke its extrajudicial powers to resolve a spitting incident even absent contact with the defendant’s body, surely, on breaking an engagement in a manner that generates emotional scarring of the aggrieved party, liability should ensue.",
+ "Having considered this debate, it is my opinion that, given that emotional distress due to spousal refusal to have conjugal relations may have more severe psychological impact than a physical act of injury, it should indeed be handled like boshet devarim and spitting on clothing. The court’s discretion to impose extrajudicial fines can provide monetary relief for this type of emotional anguish.",
+ "We saw that a husband’s denying his wife conjugal relations contravenes the biblical directive, “Devise not evil against your neighbor, seeing he lives securely by you” (Proverbs 3:29). A husband’s denying his spouse sexual relations occurs when the spouses reside under the same roof, and either have an ongoing marriage in other respects, or are de facto separated from each other and the marriage is factually “dead,” but the husband is delaying the granting of a divorce. The lack of conjugal relations causes tza’ar (mental anguish) as well as injury to the wife’s sense of self (boshet), the latter not necessarily being a function of the public’s perception of her worth. (As we saw above, by the strict law, damages for boshet are a function of public perception of an individual’s social standing.) Contemporary rabbinical courts, by virtue of their power to exercise exigency authority, can adjudicate claims for such damages.",
+ "Moreover, the consequences of violating the prohibition against delaying the granting of a divorce extend beyond the halakhic recognition of tza’ar and boshet, and indeed, beyond the realm of domestic relations. The distress generated by denial of conjugal relations also constitutes a kind of deception:",
+ "Just as there is deceitfulness in buying and selling, so there is deceitfulness in verbal exchanges. One should not ask how much something costs if he dos not wish to buy it … If someone is the descendant of converts, he should not admonish, “remember your ancestors’ deeds.”",
+ "Causing unnecessary mental anguish is prohibited in both social and commercial contexts. Inquiring about a price when one has no intention of purchasing the object is termed ona’ah (deception). Lest the biblical prohibition against deception (Lev. 25:14) be construed as applying only to ona’at mamon (fraudulent business transaction), the Mishnah explicitly states that deception occurs in the realm of conversation as well (ona’at devarim). The Mishnaic examples are edifying: The distress caused by needless verbal insensitivity in conversation is similar to the distress caused to a merchant whose hopes of making a sale are needlessly built up and then dashed. In the halakhic literature, verbal deception has been characterized as the infliction of “dread and fear” and “pain and distress.” The individual’s emotional persona must be protected from unjustified verbal assault.",
+ "The open-ended nature of the prohibition against ona’at devarim is articulated in Sefer ha-Hinukh:",
+ "It is impossible to provide specific details of every type of behavior that causes emotional distress … One who transgresses this prohibition and behaves contrary to the directives propounded by the halakhic scholars violates a precept.",
+ "Over 700 years later, R. Ya’akov Blau introduces his examination of ona’at devarim by describing the many acts subsumed under this prohibition:",
+ "One who creates noise in his home or in the street while the neighbors are sleeping … [and] one who resides on an upper floor and disturbs his neighbor on a lower floor is deemed to be causing pain … If one needs to move or remove beds, it should be done during the day … and during the evening hours, one should walk with light footwear and not run electric saws or washing machines and the like … In this book, he discusses whether students in a study hall or yeshiva in a residential area can learn aloud … There is also discussion about eating food that produces a vile odor that may cause bad breath that is offensive to someone one is conversing with.",
+ "On R. Blau’s view, when one party to a relationship is deliberately inconsiderate of the other, he may be liable for ona’at devarim. In interpersonal relations, such as relations between neighbors, the respective parties’ sense of self-worth is to be secured and enhanced, and care must be taken to avoid giving offense or creating mental anguish. There is a special prohibition against ona’at devarim vis-à-vis one’s wife. A fortiori, a husband’s denying his wife conjugal relations, a direct assault on her sense of self-worth, is an instance of ona’at devarim.",
+ "With regard to ona’at devarim, no act has been committed, but rather, the offense is merely verbal, and hence not justiciable according to the strict law. It is thus exigency law that empowers a rabbinical court to impose fines for ona’at devarim. Though our hypothetical scenario falls under the category of boshet, it also constitutes a violation of the prohibition against ona’at devarim. Shaming someone verbally entails “verbal deception.” In effect, a rabbinical court applying exigency law to a case of spousal denial of conjugal relations is at the same time addressing contraventions of the prohibition against ona’at devarim.",
+ "Given that every decision related to awarding damages for emotional scarring can be characterized as a hora’at sha’ah (emergency directive), the rabbinical court must realize that the contemplated rulings are ad hoc determinations arising from exigency situations, and as such call for cool-headedness. As Rashba formulates it:",
+ "With patience, deliberation, and consensus, the community will be directed toward [fulfilling the will of] heaven. Every major act and mighty hand requires vigilance and the elimination of anger. The arbiter must worry that his fervent zeal for God will inflame his innards and do away with the correct and proper [judicial] comportment.",
+ "Applying this to our scenario, the panel must first ascertain whether the husband is indeed a wrongdoer. Let us first consider the question of when a husband is deemed to be refusing to divorce his wife (mesarev get), and at what point his wife is deemed to be an agunah. If a married couple have been living in separate rooms in the marital home for three months and appear in front of a rabbinical court for the purpose of executing a divorce, what is the court’s mandate? As long as there are prospects of reconciliation, it is the court’s responsibility to promote shalom bayit (domestic tranquility). But if there is little likelihood that domestic harmony will prevail, a rabbinical court decision to rule with a view to fostering shalom bayit only serves to unduly lengthen the divorce proceedings. Unless the specifics of the marital situation dictate otherwise, the court should set a maximum time of eighteen months to restore marital tranquility. If a spouse moves out of the marital home and the couple is continuously separated for the entire eighteen months, or if the spouses are legally separated, the marriage is functionally over, and it becomes the court’s task to persuade the couple to divorce. This is done by issuing a divorce judgment that it is “proper” or “recommended” that “the parties divorce each other.” Once the judgment has been issued, the parties are to arrange for execution of the divorce (sidur ha-get). Should the husband refuse to give the get due to a personal vendetta, desire to use the get as a bargaining chip for financial concessions, or sheer hatred of his wife, at that juncture he is deemed a mesarev get. As noted, at this point, there are grounds for providing monetary relief for the wife, who is deprived of conjugal relations, and suffers the attendant emotional distress.",
+ "However, prior to addressing and awarding such a claim for infliction of emotional distress, the court must engage in mediation, so that either the victim may be assuaged with words of appeasement or the injurer can voluntarily offer monetary recompense. Adducing a Geonic precedent, various halakhic authorities argue that there should be recourse to appeasement “according to the issues at hand, the status of the one who perpetrated the humiliation, and the status of the victim of the humiliation.” Depending on the circumstances of the case and the religious and/or social status of the parties, the court will attempt to mediate an appeasement. Should attempts at mediation be unsuccessful, and assuming the standards for invoking exigency Halakhah have been met, the court will proceed to assess the damages caused by the husband’s infliction of emotional distress.",
+ "Given that the injuries are imperceptible, how does the court assess these damages? Post-Talmudic sources indicate that the court does so by exercising judicial discretion. Defining this discretion in a negative fashion, some characterized the assessed damages as fines (kenasot) that have no rationale, one decisor even saying, “I am astonished that the sages found any basis for arriving at these assessments.” Others, among them R. Yosef Elyashiv, describe the court’s discretion in exigency situations in positive terms: “Everything is resolved in accordance with the specifics of the matter, the times, and the arbiters’ discretion.”",
+ "I am not, of course, claiming that the court decides on the basis of whim; rather, there is an authoritative decisional standard. Boshet is determined by the principle of proportionality, that is, in accordance with the relative status of the perpetrator and victim of the humiliation. In effect, defendants pay damages commensurate with their wrongs, and plaintiffs recover damages commensurate with their losses. A secular legal system might ask: Ought not the husband to have foreseen the injury that would result from his conduct? Did the wife have an “eggshell personality,” resulting in unforeseeable mental injury? The halakhic system does not ask these questions. The doctrine that a husband’s denying his spouse conjugal relations is a violation of the prohibitions against ona’at devarim and boshet enables the court to assume that long term abstinence from conjugal relations engenders anguish in every wife, and does not reflect psychological fragility, but is rooted in the very essence of her humanity. Similarly, the forseeability of the harm ensuing from the husband’s failure to engage in sexual relations need not be proven in order to establish liability.",
+ "The boshet generated by spousal denial of conjugal relations cuts across all economic and social strata. It is incumbent upon the husband to be aware of his spouse’s rights and his own marital obligations, and to be aware of the injury that will ensue from failure to fulfill his obligation to engage in conjugal relations (onah) while preventing his wife from severing the marital bond. Failure to be aware of these duties is grounds for liability for his wife’s foreseeable emotional distress.",
+ "Although a court is to be guided by the relative religious and/or social status of the parties in assessing tza’ar-boshet payments, such imperceptible injuries cannot be readily quantified and will result in wide variations in monetary awards. Ought the court implement a policy of minimizing or maximizing these awards? The black-letter Halakhah sets a fixed boshet payment for certain injurious acts that are accompanied by physical contact: “If he spat and the spittle reached him, if he stripped his cloak from him … he gives him four hundred zuz … all in accordance with his dignity [viz., his status].”",
+ "The Mishnah notes that an individual is deemed poor if he cannot pay for food and clothing for a year, which at the time came to 200 zuz. In 2008, in New York City, using the Consumer Price Index, the 200 zuz amount would be equivalent to an annual outlay of $55,000 for food and clothing. Hence, the statutory Mishnaic compensatory damages for spitting or stripping off a cloak are $110,000 per occurrence, depending on the relative status of the parties. As understood by Talmud and later authorities, these monetary awards are the maximum sums that can be awarded for the said injurious acts. The law adopts a policy of restraint (le-kulah) vis-à-vis compensation for damage claims, including those of boshet, limiting the compensation paid out.",
+ "Though the goal of the law stricto sensu is to compensate the victim while keeping the perpetrator’s monetary liability within reasonable limits, exigency law is resorted to for punitive purposes and deterrence. Applying exigency law in cases where there is a claim of emotional distress due to the withholding of sexual relations serves two goals. As we saw, it imposes liability for a type of injury not covered by the strict law, namely, non-physical injuries unaccompanied by direct physical contact. But optimally, the system should not only compensate deserving victims, but also deter halakhically reprehensible behavior in the future. Referring to exigency rulings in terms of such rubrics as “protective measures” and “the times requires it,” conveys the idea that the system is focusing on an immediate problem, and the imposition of sanctions is punitive. But deterrence is also critical. In the words of R. Natronai Gaon: “One may penalize monetarily at a minimum or at a maximum in order to prevent the increase of perpetrators in Israel. This is the tradition of rabbinic courts, and we learn from them; and this is our judicial practice.”",
+ "Given that the damages are not just compensatory, but punitive and deterrent, the amount of the award will be proportionate to the transgression in question. Taking into account the range of possible scenarios, awards for similar injuries may vary considerably from case to case. As the amount of the award is discretionary, wide variations in monetary awards will result. This variation in award is not unique to the halakhic system. In American law, for example, awards for spousally-inflicted emotional distress have ranged from $15,000 to as much as $500,000.",
+ "IV.",
+ "We have assumed that a court can hear a claim for infliction of emotional anguish prior to a wife’s receiving her bill of divorce (get). But would submission of such a claim while her husband was refusing to grant the divorce render the divorce, when ultimately granted, unlawfully coerced (get me’useh)? In our scenario, the wife lived, de facto, apart from her husband during five years of marriage, and subsequently was denied a divorce by her recalcitrant husband for over three years. Can she proceed to submit a claim for emotional distress she suffered during the five years of separation prior to seeking a divorce?",
+ "We will address this through the lens of some medieval teshuvot and contemporary rabbinic writings. R. J. David Bleich summarizes some early views and the normative Halakhah on the question of kefiyat get (coerced divorce) in other contexts:",
+ "Rashba maintains that any coercion relating to execution of a get, even if self-imposed in the form of a voluntarily assumed penalty for non-execution, renders a get invalid … This view is disputed by R. Simon ben Zemah Duran, Teshuvot ha-Rashbats (Tashbats), II, no. 68, who declares, “One who says, ‘I will give 100 gold pieces to the king if I do not divorce my wife’ may divorce his wife and there is no question in the matter, for since this obligation came of his own accord, he divorces of his own will.”",
+ "In essence, Rashba’s position is that a get is invalid when executed under duress even if such duress is indirect. Hence, duress compelling a person to fulfill a perfectly binding undertaking to pay compensation for failure to execute a religious divorce invalidates the get, since it is simply an indirect means of securing compliance in executing the get. Those who disagree with Rashba maintain either that self-imposed duress does not constitute duress or that since the enforceable demand is for financial compensation rather than for a get, a get executed under such circumstances is not to be regarded as executed under duress. So long as satisfaction of a lawful claim remains a viable option in order to avoid execution of the get, execution of the get in order to avoid payment of a just debt is regarded as a voluntary act motivated by the self-interest of the husband.",
+ "Rema cites both conflicting opinions and rules that a get should be executed in the absence of prior forgiveness of the penalty for non-execution, but adds that if a get has been executed under such circumstances, it is valid even in the absence of prior forgiveness of the penalty, provided that the penalty was assumed voluntarily.",
+ "Onsa de-nafshei (self-imposed duress) is the subject of much debate among the decisors. However, even under the sorts of circumstances in question, the get is valid ex post facto. The question we must address, however, is whether a wife can initiate such a claim prior to receiving her get. To be sure, there are certain types of monetary fines or incarceration that do not raise concerns about get me’useh. As Rivash points out, certain kinds of pressure are not sufficiently coercive to render a divorce invalid, provided the coercive element arises from circumstances that are independent of the divorce.",
+ "The case … involved a person cast into debtor’s prison for nonpayment of a debt. His wife’s relatives offered to satisfy the debt on his behalf and thereby obtain his release from prison on the condition that he divorce his wife. Rivash finds no objection to execution of a get under such circumstances, “for he was not seized in order to [compel] him to divorce [his wife] but on account of his debt; the get is not coerced but [the product] of free will.”",
+ "Rivash’s argument is that the husband was imprisoned for defaulting on a debt rather than as a means of compelling him to execute a divorce. Hence, his release in exchange for executing a divorce does not constitute duress, and the get is not regarded as unlawfully enforced.",
+ "Rivash takes the same approach in another teshuvah. A wife attempted to prevent her husband from leaving their locale lest she be denied her right to conjugal relations. Here, the coercion unrelated to execution of the divorce pertains to the husband’s refusal – in effect – to have conjugal relations:",
+ "We put him under nidui [a ban], or flog him until he agrees to cohabit with her. If he, of his own [free will], divorces her, in order to save himself from those [measures], it is not an unlawfully enforced get. For the court did not compel him at all to give the get, but rather, to fulfill his conjugal obligation to the best of his ability, just as he is obligated by law to fulfill the [other] commandments.",
+ "Many authorities subscribe to the idea that kefiyah li-devar aher (coercion vis-à-vis another matter) is permissible. However, Rabbis Hayyim Zimbalist and Avraham Azulai added a caveat in a ruling handed down when they sat on the bench of the Tel Aviv District Rabbinical Court:",
+ "A young woman had married a man who was serving a four-year prison term in Israel for drug offenses. The wife petitioned for a divorce on the grounds of nonsupport and loss of consortium. The Rabbinical Court of Tel Aviv … directed the husband to execute the get but did not find any grounds … that would mandate the direct imposition of coercive sanctions, such as additional imprisonment or fines. The issue before the court was whether it was … proper to recommend parole or reduction of sentence in exchange for the husband’s executing a get . . . On the one hand, the get is the mechanism by which the prisoner may obtain his freedom, and if a person is told, “Sign the get or stay in jail,” this resembles duress. Yet because the imprisonment was for completely unrelated offenses, the failure to give a get does not, in and of itself, result in direct coercion, but simply removes the … benefits of parole that would otherwise ensue.",
+ "Under these circumstances, though the imprisonment was unrelated to the delivery of the get, any recommendation of parole would render the subsequent execution of a get tainted by duress. The linkage of the parole recommendation to compliance with a rabbinical court’s directive to grant a get is regarded by these decisors as coercion.",
+ "Others, including Rabbis Daichovsky, Elyashiv, and Rafael, see no objection to executing a divorce under such circumstances, since the husband was imprisoned for failing to repay a debt rather than as a means to compel him to divorce his wife. Since the imprisonment was unrelated to the husband’s recalcitrance in giving a get, a release from prison in exchange for the execution of a get is not, they argue, to be construed as a form of coercion.",
+ "A similar approach is upheld by R. Feinstein. As Professor Breitowitz summarizes:",
+ "In a teshuvah dated 5719 (1959), R. Feinstein dealt with the following situation: a husband and wife were civilly divorced and the husband was ordered by a court to pay alimony. Failing to meet those obligations, the husband was imprisoned. The wife then agreed to drop her alimony claim (for arrearages) and procure his release if he would execute a get, which he did. Was this a get me’useh? R. Feinstein ruled that it was not, and such a get could be executed even ab initio.",
+ "Thus R. Feinstein validates a get granted in exchange for escaping a monetary obligation unrelated to the execution of the get, namely, paying maintenance (mezonot).",
+ "Rabbis Daichovsky, Elyashiv, Feinstein, and Rafael concur in subscribing to the view expressed by R. Moshe of Trani:",
+ "A get is only considered unlawfully enforced when [the husband] is coerced with regard to the divorce. But if he is coerced with regard to a different matter, and in order to free himself from that coercion he divorces his wife, [the get] is not regarded as unlawfully enforced.",
+ "As long as the sanctions applied are, from the outset, intended to address a breach of an independent claim that is halakhically legitimate, and are not simply a means of pressuring the husband to grant the divorce, any subsequent execution of a get will be valid. Just as according to Rivash, social shunning of one who fails to have conjugal relations with his wife does not create a get me’useh, so too compensating the wife for mental anguish engendered by denial of conjugal relations does not taint any subsequent divorce.",
+ "What about a sanction that is ostensibly independent of the get, but employed for purposes of compelling the get? Is the kavanah (intent) to introduce an independent claim at a particular point in time relevant in determining whether a divorce is coerced? How is intent to be ascertained – by noting whether anything is said about divorce when the independent claim is made, by judging the wife’s actions, or by inference from the circumstances? Some argue that even if divorce is merely mentioned, this indicates that the intent of the independent financial claim is to induce the husband to grant the divorce. If divorce is not mentioned, we can assume that the intent of advancing the financial claim is to have it settled, rather than for it to serve as leverage toward procuring a get.",
+ "Others contend that the focus must be the claim itself. Emotional distress generated by refusal to grant a divorce, financial coercion and blackmail on the part of the husband in the course of the negotiations, and the anguish arising from years of divorce litigation cannot serve as grounds for a monetary award. Claims for compensation for these injuries are related to the get and therefore contravene the requirement that the get be freely given. However, mental anguish due to the absence of conjugal relations is an independent claim, and therefore may be grounds for granting an award. The point in time at which the wife submitted the claim or her verbal remarks linking the claim to receiving a get need not be considered by the court. As we have seen, such a claim may be advanced even where divorce is not contemplated.",
+ "In our scenario, a couple had been living separately under the same roof for five years. Though the wife would have liked to engage in conjugal relations with her spouse, her husband willfully refused to have relations. For the sake of their children, the couple remained outwardly married while in actuality living separately. In principle, at any time during this period of separation, the wife could have chosen to submit a claim against her husband for intentional infliction of mental anguish. For various reasons, she chose to refrain from advancing such a claim prior to deciding to be divorced, but the grounds for such a claim did exist throughout the five years of de facto separation. In other words, this claim is inextricably linked to the emotional stress engendered due to the absence of conjugal relations within their marriage, and not introduced merely for the sake of pressuring her husband to grant the divorce. The fact that subsequent to her years of anguish, the wife is being held hostage by her husband’s recalcitrance, financial coercion, and blackmail ought not impact the legitimacy of her claim, and should not serve to invalidate any subsequent execution of a divorce. Her intent in advancing the claim at this time, three years after the court’s issuance of a divorce directive, is halakhically insignificant.",
+ "Others disagree, and invalidate any get executed subsequent to the wife’s recourse to such a claim for damages. They maintain that even though a self-standing claim, such as a claim for payment of a monetary debt or the amount specified in the ketuba, is not linked to a request for execution of a divorce, nevertheless, if there is an established presumption (umdena de-mukhah) that these claims were put forward primarily to procure a divorce, any subsequent delivery of a get is invalid. However, our situation is readily distinguishable from situations in which such a presumption is warranted. In our case, even if the ostensibly independent claim for damages for emotional distress was motivated by the desire to procure a divorce, it is a claim, and not an existing obligation. In the other situations, the husband grants the divorce in exchange for the wife’s agreement to release him from a financial duty, in effect saying to him, “Pay up or grant a get.” Our case deals with the advancement of a claim that may or may not result in the awarding of damages. Since the consequences of the suit are not spelled out in advance, the putative “coercion” is too remote to rise to the level of duress. Whereas the said authorities invoke an established presumption in the context of an existing independent outstanding debt, which does entail coercion of a get, in our case there is no such existing debt, but only the threat that a claim for damages may be presented to the court.",
+ "Moreover, on its face, the advancement of her claim for monetary damages in order to coerce her husband to grant a get is analogous to the case of a husband who receives money in exchange for a divorce, which does not render the resulting divorce a get me’useh. As R. Rafael elucidates:",
+ "One is allowed to release from imprisonment someone who is serving time for contempt of the rabbinical court [failing to produce information requested by the court], and condition his release on his giving his wife a get. For his imprisonment is not related to his recalcitrant refusal to grant the get, but is, rather, punishment for contempt of court, and he is redeeming himself by giving the get. And at the time, R. Elyashiv agreed with me.
One can promise a prisoner that his term of imprisonment will be reduced by a third in exchange for giving a get . . . and I hear from R. Elyashiv, long may he live, that it is clear that this is not considered a coerced divorce, and it is like [the case of] a wife who purchases her get for a certain sum of money – such a get is entirely acceptable (kosher le-mehadrin).",
+ "In various rabbinical judgments “obligating divorce,” R. Elyashiv permits a husband whose wife does not wish to accept a bill of divorce to appease his recalcitrant wife by offering money in exchange for her accepting the get; the ensuing divorce is not deemed to be unlawfully coerced. Teshuvot in Tashbetz, Torat Gittin, and Noda be-She’arim (R. Dov Berish Ashkenazi) attest to the not-uncommon phenomenon of wives absconding with their recalcitrant’s husband’s assets and releasing them only upon receiving a get. It is hardly, if ever, claimed that these were improper inducements that rendered the divorces coerced. Financial inducements, whether to appease a recalcitrant husband or a recalcitrant wife, do not contravene the strictures against coerced divorce.",
+ "R. Ezra Batzri, a Jerusalem rabbinical court judge, analyzes the dynamics of such a situation as follows:",
+ "Should a rabbinical court be aware that the husband is interested in divorcing his wife, his intent to extort monies from her … constitutes coercion by way of unjustified extortion of money from the wife. Essentially, [any steps the court takes] do not coerce him to divorce her, since he desires to divorce his wife. He is employing the divorce as a means to achieve things improperly … As long as the husband is not interested in peace and the court is aware that the purpose of delaying the get is not to foster peace with his wife, but on the contrary, to cause pain and take revenge on her or extort from her monies that do not rightfully belong to him – in such a situation, there is no apprehension that the divorce is coerced.",
+ "In short, financial inducements to procure a divorce do not render the divorce coerced. In effect, a wife’s willingness to waive an award for mental anguish in exchange for her get is no different than forgiving a debt or transferring cash for a delivery of a get. Hence, a wife’s claim for damages for mental anguish due to her husband’s denying her conjugal relations during the years the two were living under the same roof prior to the divorce ought to be permissible.",
+ "Given that such a claim can be put forward, how does the court proceed? Once both the husband and the wife obligate themselves to submit to the court’s resolution of the wife’s claim for mental anguish, the court proceeds to address the claim on the merits. Upon deliberation, should the court rule in the wife’s favor and hand down an award, it will direct the husband to pay this award. Should the husband refuse to pay the tza’ar-boshet award, the award can be enforced in civil court. On the other hand, should the husband accept the rabbinical court’s decision, he has the option of suggesting to his wife that in exchange for a divorce, she waive her entitlement to the monetary damages awarded her by the court; the resulting get will not be tainted by coercion. However, to avoid any concerns that the divorce will be deemed coerced, the monetary award should not be “excessive” and should be tenable given the husband’s financial situation.",
+ "What happens if a husband refuses to proceed to beit din concerning a wife’s claim for mental anguish due to denial of conjugal relations? Upon the court’s determination that the husband’s refusal to comply is unwarranted, the beit din will issue a “contempt of court” order (shtar seruv), with all its attendant consequences, and a dispensation for the other party to initiate proceedings in civil court (heter arkha’ot). Alternatively, prior to the wife’s request to have the beit din address this claim, she may ask a rabbi who has expertise in Even ha-Ezer and Hoshen Mishpat whether she can proceed to civil court without a beit din’s permission, or, if a heter arkha’ot is required, whether she may approach the beit din that dealt with her claim or whether she is allowed to approach another beit din to request permission to have her claim heard in civil court. Note that a heter arkha’ot does not mean that the wife has a carte blanche to advance any and all claims in civil court. Only if the claim is legitimate in the eyes of the Halakhah can it be asserted in civil court.",
+ "On being summoned to the civil proceeding, can the wife assert a claim against her husband for recklessly causing her severe emotional distress in connection with their years of divorce litigation? In fact, there have been a few instances of Jewish wives lodging claims in American courts against their Jewish spouses who wrongfully refused to grant a get, thus inflicting emotional distress. Are such claims halakhically legitimate or do they risk tainting a subsequently executed get? Addressing a French court’s award of compensation for a husband’s failure to execute a Jewish divorce, contemporary decisors, following earlier authorities, have construed such an award as a classic example of financial compulsion (ones mamon), viz., indirectly securing compliance in executing a get by exerting financial pressure.",
+ "The qualms expressed regarding the aforementioned claim do not apply to our claim for mental anguish due to denial of conjugal relations during marriage. As I have argued, such a claim is made solely to protect the wife’s emotional integrity. Hence, just as a rabbinical court may deliberate on the merits of such a claim, so too such a claim, submitted to a civil court, may be addressed on the merits. Furthermore, even if it can be demonstrated that the civil court will award more damages than a rabbinical court would, the wife may retain the entire award handed down by a civil court.",
+ "V. Concluding Remarks",
+ "We have focused on a particular type of contemporary agunah: the wife who seeks damages for mental anguish caused by her husband's refusal to engage in conjugal relations while a divorce is being withheld. This raises a question: given that the primary emotional trauma is due to her husband’s recalcitrance in granting a divorce rather than the denial of conjugal relations, may the wife put forward a claim for damages for this period without rendering a subsequent divorce unlawfully coerced (get me’useh)? More broadly, may a contemporary agunah, even one who shares a domicile with her husband, but decides to seek a divorce due to irreconcilable differences or spousal abuse, and is met by intransigence on the part of her husband, advance a claim for mental anguish incurred during the period of her husband’s recalcitrance? In effect, may an agunah seek claims for emotional stress from her husband for the period of her inability to remarry and engage in conjugal relations with her husband? We have argued that as long as the monetary obligation is not linked to the divorce, but independent, and the penalty will remain in place after the get has been granted, execution of the get will be deemed proper. In the words of Torat Gittin:",
+ "If he obligated himself with a penalty, should he fail to divorce her by a specific date, and he retracted and refused to divorce her until after the stipulated date, once the stipulated date passes he becomes obligated to pay the penalty even if he divorces her … And the court can mandate the penalty, and it is akin to coercing someone to pay his debt, and if he divorces her in order to free himself from paying the debt, the get is not deemed a forced get, as noted by Rashbatz.",
+ "The reasoning is that while monetary pressure is improper if the granting of the get will free the husband of his monetary obligation, if the penalty will have to be paid regardless of the giving of the get, then financial pressure is not the motivating factor in his granting the get and will not taint its execution. The wife may be willing to waive her right to the money in exchange for the get. Such a waiver is proper and no different from what transpires when the court has mandated that a husband pay a debt unrelated to the divorce, such as the ketubah payment, and the couple mutually agree to waive payment of the ketubah in exchange for the get.",
+ "In light of teshuvot dating back to Rivash, and in light of Torat Gittin’s exposition of the Halakhah, R. Daichovsky argues that a wife may collect tza’ar-boshet damages for the mental anguish caused by her husband’s conduct. As these damages relate to the husband’s conduct in the past, even if he decides to grant his wife a divorce, the damages stand and must be paid. And even if the wife waives her right to these damages, this decision will in no way impair the fitness of the get. Should a husband refuse to submit to the rabbinical court’s authority, a claim for damages due to tza’ar-boshet may be submitted to a civil court, and given the husband’s failure to heed the rabbinical court’s recommendation that he divorce his wife, R. Hadaya suggests that monetary penalties may be imposed on the husband for contempt of court.",
+ "What is the purpose of providing an award for emotional distress to this present-day agunah? First, it is an opportunity to bring an action that provides public recognition of the intrinsic value of human dignity by formally acknowledging its violation. By invoking exigency Halakhah, the rabbinical court is attempting to mitigate the emotional suffering, and particularly the humiliation, of a vulnerable victim who is denied conjugal relations and whose husband’s intransigence prevents her from in receiving a divorce and remarrying.",
+ "The avoidance of shame and psychological torment is a central principle of other realms of Jewish living. For instance, despite the proscription against hurting and endangering oneself, to avoid shame and relieve mental discomfort, certain types of cosmetic and plastic surgery are permissible. Protection of a woman’s dignity should also be extended to her emotional persona. The awarding of these damages for mental anguish gives symbolic recognition to the significance of a wife’s bodily and emotional integrity. Though monetary damages may not be equivalent to the emotional injury experienced, they can serve as a symbolic means of restoring a sense of personal security and autonomy.",
+ "Furthermore, a successful suit can publicly reprimand and economically penalize a recalcitrant husband who unjustifiably withholds conjugal relations (onah) and/or a get, thereby deterring other members of the community from committing the same offenses. Realizing that there may be a suit filed for this action, a husband may think twice before refusing to engage in sexual relations with his wife or withholding a get. Finally, if the suit is successful, the award will compensate the wife to some degree for the emotional loss caused by the said assaults on her psyche.",
+ "For all these reasons, prior to endeavoring to resolve a divorce situation, the court should inform the parties that adjudicating spousal claims for emotional distress is within its purview. Indeed, rabbinical courts should insist that resolving end-of-marriage issues includes addressing spousal claims for mental anguish. Should a party refuse to arbitrate such a claim, a court should decline to address the other issues pertaining to termination of the marriage. Failure to insist on an all-or nothing approach simply encourages the already pervasive phenomenon of shopping around for the “right” rabbinical court – namely, one that serves the husband’s needs rather than addressing all the issues in an honest and forthright fashion. Just as the court should insist on hearing all claims associated with the end of marriage, a woman should insist that all of her claims be heard in court.",
+ "On the other hand, a court’s refusal to hear the claim – and if justified, to award damages – effectively bestows on the injurer a kind of “halakhic entitlement” to cause the injury. The perceived weakness of the rabbinical courts can only lead to increased violation of the law, because others are seen to violate the law with impunity. Given the prevalence of the phenomenon of chained wives in contemporary society, it is not surprising that twentieth century decisors such as Rabbis Herzog and Hadaya stress the obligation to heed the words of Torah scholars (mitzvah li-shmo’a le-divrei hakhamim) regarding compliance with a court’s issuance of a divorce judgment.",
+ "These words of admonishment should be applicable to our situation as well. Failure to adjudicate a claim of spousally-inflicted distress (assuming the conditions elaborated on above are obtained) may undermine a community’s trust and confidence in rabbinical authority in general and rabbinical courts in particular.",
+ "Hopefully, the following incident recorded in the Talmud could not transpire in our day:",
+ "R. Rehumi who was [studying at the school] of Rava at Mahoza, used to return home on the eve of every Day of Atonement. On one occasion, he was so engaged in his studies [that he forgot to return home]. His wife was expecting [him any moment, saying,] “He is coming soon, he is coming soon.” As he did not arrive, she became so depressed that tears began to flow from her eyes. [At that moment,] he was sitting on a roof. The roof collapsed under him, and he fell and died. ",
+ "As the Shulhan Arukh admonishes, “One must be mindful of [causing] anguish to one’s wife, for her tears are ever-present.”"
+ ],
+ "Addendum A": [
+ "The Propriety of Submitting and Awarding a Nezikin Claim in Beit Din on Behalf of an Agunah",
+ "I.",
+ "On August 17, 2011, Judge Esther Stein of the Rishon Letzion Family Court, an Israeli civil court, awarded compensation in the amount of NIS 680,000 (approximately $182,850) to a Jewish woman whose husband refused to give her a get (a Jewish divorce).",
+ "In her lawsuit, filed with a rabbinical court, the wife argued that she was physically abused and abandoned by her spouse. At times, the husband would hit her and slam her head against the wall and furniture. Additionally, he cursed her and their children. Subsequently, he ceased having relations with her and eventually abandoned the marital home.",
+ "A 2003 rabbinical court ruling recommended that a get should be forthcoming; subsequently, a 2004 rabbinical court decision stated that the husband was mandated to give his wife a get. Despite these two beit din rulings, the husband refused to give his wife a get. Subsequently, the beit din rescinded these directives due to the husband’s insistence that the division of marital assets be addressed by the beit din prior to the deliverance of the get and due to the wife’s unwillingness to drop her civil damage suit, which she had filed in Rishon Letzion Family Court.",
+ "The Family Court held that refusal to divorce constitutes a violation of the values protected by the Israeli “Basic Law: Human Dignity and Freedom,” which includes freedom of choice and the right to dignity and self-fulfillment. Invoking this governing Israeli statute as well as other arguments, the Family Court awarded the wife compensation for the husband’s recalcitrance during a period of eight years in failing to give a get to his wife. This decision follows in the footsteps of various earlier decisions handed down by other Israeli Family Courts, which have awarded civil damages in cases of get recalcitrance (in which either a husband refuses to give or a wife refuses to accept a get).",
+ "In this context, we will not address the halakhic propriety of the wife’s decision to file a civil claim for nezikin (damages) in civil court. Our focus is rather on how the beit din would have received such a claim for get recalcitrance had it been advanced before them. Essentially, the question is whether awarding monetary damages due to get recalcitrance can serve as a vehicle to coerce the husband to deliver a get to his wife, who would waive her right to the award under those circumstances. If such is the case, is the resulting divorce an instance of a get me’useh, a coerced – and thus invalid – get?",
+ "According to numerous authorities, if monetary fines are leveled against a recalcitrant husband, any subsequent execution of a get is unlawful. Consequently, the advancement of a monetary claim to compensate for damages due to a husband’s recalcitrance in delivering a get is without halakhic foundation. Should such an award be forthcoming and the husband decides to give the get in exchange for being released from paying this debt, the subsequent execution of the get constitutes a get me’useh.",
+ "In a case similar to the one at hand, a Jewish husband was ordered by a French court to pay his wife 25,000 francs to compensate her for his refusal to deliver a get. In responding to the merits of this judgment, R. Yitzhak Weiss and R. Shmuel Wosner ruled that such an award is a classic example of financial compulsion (ones mamon), indirectly procuring a get by exerting financial pressures.",
+ "It is therefore unsurprising that numerous Israeli rabbinical courts require that any monetary damage claim by the wife must be withdrawn from the beit din’s consideration prior to deliberation regarding the propriety of a husband giving a get and arranging its execution. Furthermore, while a beit din is addressing the matter of a get, it will insist that any monetary damage claims being filed and/or advanced in a civil court proceeding be withdrawn. In addition to the essential problem that awarding compensation may result in the get being tainted by compulsion, if batei din were to render such awards, the mere advancement of such a claim in beit din might motivate the husband to divorce his wife out of fear of possible financial loss. Moreover, if the beit din were to impart validity to such an award and permit a wife to submit a claim even after the delivery of a get, a husband might feel coerced to give the get out of fear of a possible impending suit, resulting in a get me’useh.",
+ "II.",
+ "Given the foregoing presentation, is there any monetary claim that can be advanced by an agunah within the context of a beit din that will avoid the strictures of a get me’useh? Although we have seen that some authorities view any monetary duress as grounds for invalidating a subsequent execution of a get, other Poskim distinguish between different types of monetary and non-monetary coercion. Certain forms of duress will taint the subsequent execution of a get, while others are considered free of compulsion.",
+ "Rabbeinu Tam enumerates various social measures that may be imposed upon a husband under certain circumstances in order to compel the issuance of a get. Pursuant to one account of these measures, Rema rules:",
+ "They may mandate upon all individuals who are members of the community of Israel to refrain from granting him any benefit, nor engage in business with him, nor to circumcise his son, nor to bury him, until he gives her a get …",
+ "As aptly characterized by R. Yitzhak Herzog:",
+ "[These measures] are not so severe that he would divorce his wife if he was in love with her, and if he divorces her, he has not acted under duress.",
+ "These restrictions are moderate coercive measures that minimally affect the husband’s free will.",
+ "Thus, for example, R. Menachem Mendel Schneerson issued the following ruling regarding a wife who stole 515 silver rubles from her husband and returned 400 rubles so that her husband would give her a get:",
+ "Not all monetary duress constitutes duress … 115 rubles in comparison to 515 rubles is not a lot of money, and this is not an instance of full-fledged duress (ones gamur). It is not worse than the harhakot of Rabbeinu Tam, which are not viewed as full-fledged duress.",
+ "If a man is prepared to divorce his wife for 115 rubles, a relatively small amount of money, this is indicative that he is ready to divorce her and that he is utilizing the refusal to grant a get as a bargaining chip to extort her for money or out of spite. In such a situation, any ensuing get would not be tainted by compulsion. This approach was similarly adopted by Netivot ha-Mishpat, and R. Feinstein.",
+ "In our case, the civil judge of the Rishon Letzion Family Court awarded the wife approximately $182,850. Would such an award, had it been rendered by a beit din, constitute ones gamur, or if it is only a moderate form of coercion to pressure the husband to give a get? In accordance with R. Schneerson’s approach, the answer to this question is contingent upon the financial situation of the husband. In a case in which such an award would wreak financial havoc in his life, the award would be construed as coercion; in a case in which that amount would not be financially threatening, it would be valid. Coercion is measured proportionally by the beit din, factoring into consideration the husband’s ability to pay. Since we are unaware of the financial ability of the husband in the Israeli case, we cannot determine whether this would have been a legitimate award for a beit din that would not subsequently impact upon the propriety of the get.",
+ "Furthermore, as we mentioned in chapter 3, numerous authorities, including Rivash, Tashbetz, Ranah, Mabit, Rema, and R. Feinstein, as well as R. Elyashiv, R. Daichovsky, and R. Rafael, while serving on the Israeli Rabbinical Courts have argued that kefiyah le-davar aher, in which the coercive element emerges from circumstances unrelated to the divorce, does not constitute coercion that invalidates a get. “Kefiyah ke-din” (legitimate coercion) avoids the problem of a get me’useh.",
+ "It is possible to argue that a nezikin claim can be advanced by the woman unrelated to divorce. As the Talmud Bavli states, “tav lemeitav tan du mi-lemeitav armalu” (it is better for two to live together rather to live alone), or as the Talmud Yerushalmi conveys in more strident terms, “she claims to desire marriage” (tova’at le-hinasei) in order to transcend her personal loneliness. A woman has a compelling desire to be married rather than experience a life of spinsterhood. Regardless of whether this compelling desire for marital ties relates to the desire to engage in sexual relations or for the sake of companionship and security, an inability to marry causes emotional scarring that engenders feelings of boshet and tza’ar (emotional stress). The husband may compound the injury by dismissing the harm, arguing that one who suffers emotional pain has only herself to blame, and that such feelings are a transient psychological and/or culturally conditioned behavior pattern rather than an existential fact is open to challenge. Specifically addressing the hazakah (presumption) of “tav lemeitav tan du mi-lemeitav armalu,” R. Joseph B. Soloveitchik contends:",
+ "This has absolutely nothing to do with the social and political status of the woman in antiquity. The hazakah is not based upon sociological factors but on a [verse] in Bereishit, “And thy desire shall be to thy husband” … She suffers incomparably more than the male while in solitude … It is not a psychological fact, it is an existential fact …",
+ "Even if one would argue that boshet and tza’ar feelings are conditioned by psychological or cultural phenomena, Halakhah recognizes that the inability of a woman to marry may serve as grounds for a nezikin claim. The same can be said for a woman who wishes to have children and is emotionally distressed because her spouse’s recalcitrance in delivering a get makes this impossible. Halakhah recognizes the right of an injured party to file such claims. Throughout different periods of Jewish history, from medieval times until to the contemporary period, arbiters have meted out compensatory awards based upon boshet and tza’ar claims for defamation of character and broken wedding engagements. In 1965, invoking their power of le-migdar milta (protective measures, also referred to as hora’at sha’ah), the members of the Supreme Rabbinical Court in Jerusalem, Rabbis Abudi, Elyashiv, and Goldschmidt, marshaled numerous teshuvot to support their position that damages for boshet can be awarded in the case of a broken engagement. Accordingly, if we posit that this is a situation of le-migdar milta, a wife desiring to remarry may advance a nezikin claim against her recalcitrant husband. To state it differently, if an individual is a habitual wrongdoer with regard to a certain practice and many members of the community by engaging in this misconduct have shown themselves to be dissolute, an emergency situation exists if the individual will continue violating the halakhic norm of being compliant regarding the giving of a get unless he is punished.",
+ "Alternatively, if an individual prevents another individual from performing a mitzvah, the individual so precluded is entitled to receive monetary damages. Thus, if the husband prevents his wife from fulfilling the mitzvah of populating the world by having children, she may seek an award for damages. Even in the absence of a desire to have children, the act of marriage per se entails the performance of a mitzvah; should her attempts to engage in this mitzvah be thwarted, there are grounds for submitting a claim for damages.",
+ "In sum, a wife may submit a nezikin claim for tza’ar- and/or boshet-related feelings based upon her right to marry due to her wish to engage in sexual relations and experience companionship or due to being unable to remarry and/or engage in the mitzvah of bringing children into this world. Arguably, each of these claims is unrelated to divorce and therefore halakhically legitimate as kefiyah le-devar aher. Although the submission of a damage claim grounded in the right to marriage clearly assumes that a get must be forthcoming prior to remarrying, we may still focus on the merits of the claim without linking it to a divorce procedure. As long as the wife sincerely desires to remarry and her claim is not simply a means of pressuring the husband to deliver a get, any subsequent execution of a get will be valid, as her claims are halakhically legitimate.",
+ "What is the status of a claim that is ostensibly independent of the get, but employed for purposes of compelling a husband to give a get? Is the kavanah (intent) to initiate such a claim in beit din relevant in determining whether a divorce is coerced? How is intent to be ascertained – by noting if anything is mentioned about delivery of a get when the nezikin claim is submitted, by assessing the wife’s behavior, or by inference from the circumstances?",
+ "Many contend that the mere mention of the matter of a get indicates that the claim is in actuality submitted to persuade the husband to become divorced. The moment the get is mentioned, it is clear that although he is obligated to pay due to his wife’s inability to remarry, the wife is willing to waive the debt in exchange for receiving her get; if she is not granted the get, she will not waive the debt. Since the withholding of benefit is a form of compulsion, this creates a situation of a get me’useh. However, if the matter of the get is not mentioned in the claim, we can assume that the wife’s intent is to have the beit din address the merits of her plea, rather than for it to serve as leverage to procure her get.",
+ "Others argue that withholding of a benefit is not an act of volition, and therefore the mention of a get in the nezikin claim will not taint any subsequent delivery of a get. R. Yosef Goldberg, an expert regarding the grounds for kefiyat get, concludes that withholding benefit should not be construed as coercion. Consequently, the mention of the get will not taint any subsequent deliverance of a get.",
+ "Others contend that even a self-standing claim that is not linked to a request for the execution of a divorce is problematic if there is an umdena de-mukhah (a proven presumption) that this claim was put forward primarily to procure a get, in which case any subsequent delivery of a get would be invalid.",
+ "Addressing a nezikin claim related to a husband’s conduct during marriage, R. Tzion Algrabli, in a recent decision handed down by the Jerusalem Supreme Rabbinical Court states:",
+ "There is no reason for reluctance to submit to the court a claim for monetary damages for boshet and the like due to one spouse’s neglect of the other … even if the claim is procedurally linked to [i.e., submitted along with] a claim for divorce. However, it must be clear that the nezikin claim was not submitted for the purpose of pressuring the husband to grant a get … Only a rabbinical court may determine whether the claim impacts upon the propriety of the get. ",
+ "Yet, there are other Poskim who argue that the wife’s intent in advancing such a plea is irrelevant and any ensuing delivery of a get is proper. Claims related to the emotional stress engendered by the husband’s refusal to give a divorce or financial coercion and blackmail on the part of the husband in the course of the negotiations, or claims relating to the anguish resulting from years of divorce litigation, cannot serve as grounds for a monetary award, as these injuries are related to the divorce. In contrast, boshet and tza’ar due to the woman’s desire to be married or the husband’s precluding her from performing the mitzvah of getting married and/or having children is an independent claim that ought to be validated. These rights are self-standing, independent and unrelated to her feelings linked to her existing marriage and the need to dissolve the relationship.",
+ "The woman’s nezikin claim proceeds either when both spouses voluntarily appear before the beit din or after the beit din issues a hazmanah (a summons) to the husband at the wife’s request. Once both the husband and wife obligate themselves to the beit din’s jurisdiction to address the grounds for the divorce, the wife’s claim for either a non-excessive monetary award for get recalcitrance, mental anguish due to violation of her right to marry and/or have children, or her inability to perform the mitzvah of marriage and/or having children will be heard. Upon deliberation, should the beit din rule in the wife’s favor, it will direct the husband to pay damages. Should the husband refuse to remit compensation, the award can be enforced in civil court.",
+ "On the other hand, should the husband accept the rabbinical court’s decision, he has the option of suggesting to his spouse that in exchange for giving a get, she waive her entitlement to the monetary damages; the resulting get will not be tainted by coercion. Under such circumstances of a private exchange transaction, such financial inducements, whether to appease a recalcitrant husband or a recalcitrant wife who refuses to accept a get, do not contravene the stricture against a coerced divorce in situations of “a dead marriage” in which the couple wishes to divorce.",
+ "Following in the footsteps of Rivash, Mabit, R. Feinstein and others, R. Rafael observes:",
+ "One is allowed to release from imprisonment someone who is serving time for contempt of the rabbinical court [failing to produce information requested by the court], and condition his release on his giving his wife a get. For his imprisonment is unrelated to his refusal to grant the get, but is rather punishment for contempt of court, and he is redeeming himself by giving the get. And at the time R. Elyashiv agreed with me.
One can promise a prisoner that his term of imprisonment will be reduced by a third in exchange for giving a get … and I hear from R. Elyashiv, long may he live, that it is clear that this is not considered a coerced divorce, and it is like [the case of] a wife who purchases her get for a certain sum of money. Such a get is entirely acceptable (kasher le-mehadrin).",
+ "What happens if the exchange is conducted by the husband and wife privately, not in the presence of a beit din? If the wife threatened to file a claim in beit din and subsequently the husband agreed to grant a get in exchange for his wife’s willingness to refrain from submitting such a claim, would the agreement run afoul of the strictures of a get me’useh? There are indeed Poskim who contend that a husband who gives a get due to a threat is deemed to have been forced to grant the get.",
+ "However, these rulings are readily distinguishable from our case. These Poskim are addressing a situation of “a clear and present danger” – that is, instances in which a husband is threatened with harm, imprisonment, or death if he refuses to consent to a divorce. They are thus indeed instances of unlawfully coerced divorce. By contrast, in our scenario, the husband is threatened by a monetary claim too remote to rise to the level of compulsion, especially since a beit din may not agree that they are empowered to award such nezikin damages and the amount of the award is not known in advance even should such a decision be rendered. As Tashbetz asks rhetorically:",
+ "If he has a remote fear of financial loss and therefore desires to give a get, ought one label this a coerced get?",
+ "Indeed, the wife may threaten to submit a claim and never follow through with her threat. Consequently, a private exchange should not taint any subsequent delivery of a get.",
+ "Obviously, if our batei din begin to award such damages and it indeed becomes “a clear and present danger” akin to the threat of imprisonment, the threat that such a claim will be submitted may render execution of the get coerced. However, even were such an award to become commonplace, the amount of the award would not be known in advance, and hence the threat remains remote.",
+ "The foregoing presentation affords the basis of allowing an agunah to advance certain tort claims in the beit din, albeit noting in our discussion those who challenge the propriety of such claims. In the event that a posek and/or beit din decides to render such awards, it is clear that in their mind(s) the awarding of such monies will not create a situation of a get me’useh. Consequently, should other poskim reject such an approach, any subsequent get rendered by a beth din after an award is made ought to be recognized by all segments of our community. In other words, though a get me’useh administered by a Jew is pasul, i.e., invalid, nonetheless, be-diavad (ex post facto) the execution of a get under duress is kosher. Hence, Poskim who reject the right of a recalcitrant spouse to advance a tort claim, be-diavad a subsequent execution of a get ought to be recognized.",
+ "Deciding between the competing arguments relating to the propriety of the different types of nezikin claims for an agunah will be the sole prerogative of the posek. The relative strength of each argument applicable to a case will hopefully be tested within the framework and constraints of future piskei din [halakhic decisions]."
+ ],
+ "Addendum B": [
+ "In our discussion, we laid the foundation for utilizing a dayan’s exigency authority to address nezikin claims. In the absence of a dayan’s employment of “migdar milta” to resolve these matters, there are three additional avenues that may empower a dayan to address such claims:",
+ "(1) Generally speaking, there is a requirement to maintain a beit din composed of mumhim (dayanim who have received ordination handed down from Moshe Rabbeinu). Such dayanim are empowered to award kenasot (penalties) including but not limited to nezikin. In contemporary times in the absence of mumhim, the power of beit din stems in part from the parties’ willingness to accept their authority, and the awarding of kenasot is therefore permissible. In effect, through the acceptance of their authority via the execution of a kinyan (a symbolic act of undertaking the duty to abide by the psak of the beit din), the parties agree to obligate themselves to remit such monies should an award be rendered. This obligation is effective even though the parties do not explicitly state in the shtar borerut (arbitration agreement) that the dayanim may issue a decision regarding a nezikin claim(s) that may entail a kenas. Moreover, since the parties empower the beit din to resolve their matters in accordance with peshara, the panel may resolve matters dealing with the halakhot of kenasot.",
+ "(2) Usually the couple signs a shtar borerut (an arbitration agreement accompanied by the execution of a kinyan) that authorizes the beit din halakhically and legally to issue a ruling. The shtar should specifically authorize the panel to resolve claims relating to the five types of personal injury as well as grama, as we have described. Although contemporary arbiters are generally precluded from addressing these nezikin matters, should the parties obligate themselves to accept a beit din’s decision regarding these claims, such a shtar is valid. In other words, the authority to issue a judgment is grounded in the parties’ willingness to fulfill their respective obligations – as in the case of any contractual agreement – rather than based upon the judicial capacity of a dayan to render a psak. Alternatively, such acceptance is no different than the imparting of validity to the litigants’ decision to accept a halakhically invalid individual (such as a relative) as an arbiter.",
+ "(3) Even in the absence of a provision in the shtar which allows a panel to render a decision in matters relating to personal injury or in the absence of conditions that would render the situation as “le-migdar milta,” in accordance with a takanah (legislation) enacted by the Geonim and “the minhag of batei din” (the practice of rabbinical courts), a panel is empowered to employ its discretion in determining the amount of the monetary award, and they will inform the batterer that this amount will appease the victim. This amount will be final even if the figure arrived at by the panel is unacceptable to the victim. As elucidated by the Poskim, the grounds for this award are to deter others in the community from emulating the batterer’s conduct."
+ ]
+ },
+ "Part II; Rabbinic Authority; The Reality": {
+ "Chapter 4; Decisions in Even haEzer": {
+ "a) Division of Marital Assets upon Divorce": [
+ "A. Division of Marital Assets upon Divorce
Rachel Levy v. Reuben Levy",
+ "On June 1, 2010, the above parties signed an arbitration agreement empowering this panel to resolve this matter according to applicable portions of the Shulhan Arukh and Poskim. A divorcing couple, Reuben Levy and Rachel Levy, residents of Los Angeles, California, submitted to this beit din their differences of opinion and disputes in reference to a family business which was unincorporated. Having given said matters due consideration and having heard all parties testify as to the facts of said disputes, this panel does decide and agree as follows:",
+ "Tova’at’s Claims",
+ "The Tova’at admits that she did not share equal decision-making powers in the day-to-day operations of the business, and on various occasions expressed opposition to the management policies of the company. In cases of disagreement between them, Rachel was compelled to accede to her husband’s decision. Moreover, there were periods when she was dedicated primarily to serving as a homemaker and raising their children and was completely uninvolved in the business.",
+ "Nevertheless, Rachel argues that she invested $50,000 into the business venture from monies received from a family inheritance and is entitled to a fifty percent share of the value of the family business partnership. Furthermore, given that her husband managed the business, the accrued debts of the business should be her husband’s responsibility. Moreover, although Rachel signed off on various commercial transactions, including but not limited to loan commitments, given her non-involvement in the day-to-day decisionmaking of the business, she should be exempt from any responsibility to pay-off these loans.",
+ "Nitva’s Counterclaims",
+ "Reuben admits that his wife was the bookkeeper, as well as the individual who dealt with the suppliers while he engaged in the trade. In the minds of both parties, this was a family business.",
+ "Given that the majority of the required capital to start the business which totaled $300,000 was contributed from Reuben’s family inheritance, the value of the business should be divided up proportionate to the couple’s respective investment. Finally, given his wife’s co-signature on the various loan agreements, the Nitva claims that responsibility of the debts incurred by the business should be shared by both parties equally.",
+ "Discussion",
+ "The beit din must address two questions. First, is Rachel entitled to an equal share in the value of the business? Second, is she responsible to pay a portion of the debt incurred by the enterprise?",
+ "1. Two Types of Isha Noseit ve-Notenet Betokh ha-Bayit",
+ "We will begin by addressing the issue of the wife’s responsibility for debt incurred in the operation of the family business in the context of the notion of “isha noseit ve-notenet betokh ha-bayit,” “a wife engaging in business in the home.” The Mishnah in Shavuot states:",
+ "And these take an oath, although there is no definite claim: partners, tenants, administrators, the wife who manages the affairs of the home …",
+ "Even though the claimant does not advance a definite claim of fraud against them, but only suspects this group of individuals, the Mishnah states that they must take an oath to refute the charge. Some authorities explain the woman described in this Mishnah is engaged in a business, and in her commercial dealings she is acting as her husband’s agent.",
+ "Under such an arrangement, a merchant would extend credit and sell to a married woman, relying on the knowledge that should she refuse to pay, Halakhah would charge these purchases to the husband. Under such circumstances, the halakhic discussion revolves upon the extent that the husband is liable for his wife’s commercial dealings, included but not limited to loan transactions. Adopting such an approach that “the wife who manages the household” is the husband’s agent may lead one to the conclusion that she is authorized only in executing small businesss deals and/or should her husband protest that he had never authorized her to act in his name, then she is not deemed an agent.",
+ "However, there may be situations where a wife may singlehandedly operate her husband’s affairs. R. Ovadiah Hadaya, a twentieth century Israeli dayan, addresses a situation in which a woman supported a Torah scholar with large sums of money and the scholar subsequently discovered that the disbursement of these funds was done without the permission of the woman’s husband. Here, we are dealing with a different type of “isha noseit ve-notenet betokh ha-bayit.” Describing the wife as an owner rather than merely managing the husband’s property, R. Hadaya writes:",
+ "It is clear from his actions that he allows her to be involved in trade and use the assets just as a person would use his own property. He brought the items to the store while she was the manager whom all the customers viewed as the owner. Therefore, his actions demonstrate that she was serving not merely in the capacity as a manager, but as a ba’al ha-bayit [owner], and since without her he could do anything in the businesss, she is permitted to use his property … He cannot object to what she has already done …",
+ "In our scenario, the Tova’at was viewed by her customers as an owner in the business. Nevertheless, her absence from the business for an extended period of time, as well as her noninvolvement in the major decision-making of the business, approximates the first type of “isha noseit ve-notenet betokh ha-bayit,” who serves as her husband’s agent in managing his business. Adopting this model of “a wife managing a business” would exempt the Tova’at from repaying the outstanding commercial debt. If we indeed adopt this perspective, the husband is solely responsible for debt repayment, even if the wife co-signed the loan.",
+ "2. Marriage as an Economic Partnership",
+ "Another approach to this question focuses on the nature of the marriage relationship. R. Abraham Sharezee, a contemporary dayan serving on the Rabbinical Court Sha’arei Mishpat in Netanya, Israel, observes:",
+ "Even though the act of establishing marriage has not changed, and it will never change … nonetheless, in monetary matters there are changes and continue to be major changes, due to a change in mentality and social mores … The unifying force of all these changes is the improvement of the position of women and the transformation of her being a wife to being a full partner, or almost a complete one … in sustaining the home, and the husband being transformed into a partner whose rights and monetary obligations have undergone a change.",
+ "Certain elements of the marriage agreement have not changed, despite changes in society. Thus, the creation of kiddushin remains a consensual agreement that designates a particular woman for a particular man and prohibits her to all others. Subsequently, the act of nissu’in instates the husband’s monetary obligations, such as spousal support. At the same time, financial elements of the marriage relationship have been effected by societal change. Thus, although many of a wife’s assets are halakhically owned by her husband, the Halakhah allows spouses to determine their own business relationship provided that any agreements between the couple complies with the proper form (for example, entailing a kinyan) and does not violate any prohibitions, such as theft or the interdict against taking interest.",
+ "Consequently, if spouses decide to create a business based upon shared ownership of assets, that is their prerogative. Such an agreement is valid and binding not by the virtue of the act of marriage, but rather because the rule in all financial matters is that any individual “may stipulate contrary to what is written in the Torah.”",
+ "Even in the absence of such an arrangement, R. Sharezee argues that nissu’in is an economic partnership and the following general ruling of the Shulhan Arukh therefore applies to it:",
+ "The partners who deposited in a common purse, one placed a manna, the other two, and the other three, and together they engaged in a business and they lost or profited … their profits or losses are shared equally according to their investment share, rather than according to the number of investors.",
+ "The position that a marriage may be viewed as a commercial partnership under certain circumstances has been subscribed to by R. Isaac Herzog, R. Yitzhak Graubard, R. Yoezer Ariel, R. Uriel Lavi, R. Daichovsky, and others.",
+ "Based on such an understanding, should spouses create a family business, we neither seek to identify who infused the most capital into the venture nor who invested more time and effort in developing its growth. Upon dissolution of the family venture, whether during the time of the marriage or upon divorce, any profits and losses will be shared by the spouses in proportion to their respective investment in the venture and the net value of the enterprise will be distributed equally among the parties, unless there is a marital agreement which provides otherwise.",
+ "3. The Tena’im Contract",
+ "There are additional grounds as well to argue that this family enterprise rests upon the foundation of halakhic partnership law. In some communities, it is customary to sign a tena’im document upon the occasion of an engagement (shiddukhin), which enumerates various parental obligations and the anticipated month of the wedding (or the actual wedding date). It stipulates that the parties have fulfilled all of their mutual obligations and should refrain from any fraudulent conduct. This “contract” concludes that “they will control their assets equally” and a monetary penalty will be paid should a party to the agreement default. This clause has been interpreted to mean that all assets acquired during marriage, as well as all debts incurred during marriage, are to be shared jointly between the spouses.",
+ "Assuming the spouses originally signed a tena’im document, the agreement is binding. In fact, based upon such a contract, both Mahari Weil and Maharik ruled against a husband who fraudulently transferred his wife’s assets to a third party during the marriage. Similarly, Maharam Mintz, Noda be-Yehuda, Maharsham, and Rav Pe’alim rule that in certain instances, a wife’s use of her husband’s assets for giving tzedakah may be construed as a misappropriation of another’s property and violation of the tena’im, which stipulates that such behavior constitutes a fraudulent use of her husband’s assets.",
+ "Given that these sources invoke the tena’im regarding the utilization of a husband’s assets for certain domestic and social needs, some have argued that one cannot expand the scope of the application to recognition of a full-fledged partnership of assets between spouses. Others, however, maintain that the tena’im indeed creates an economic partnership. For example, R. Avraham Menachem Steinberg, a twentieth century posek, rules that pursuant to the above provision in the tena’im, if a wife receives a business from her husband and it is registered in her name, upon dissolution, she must give half of its value to her husband, while she may retain the balance for herself or give it to a third party.",
+ "Because the tena’im document is a bona fide halakhic-legal contract, should one of the spouses claim that he did not understand what he signed, he would remain liable for any of his infractions of the tena’im’s terms. In modern times, only two witnesses sign the actual tena’im, while the content of the document is conveyed orally to the prospective spouses. If this information was properly transmitted or the parties were familiar with the contents of the tena’im, the document is considered a valid contract and, in that sense, is no different from a ketubah. On the other hand, a claim of ignorance by one of the parties regarding the import of the tena’im would be a defense in such a case, and under such circumstances the provisions of the tena’im would fail to serve as an avenue for the recognition of the concept of matrimonial partnership.",
+ "In our case, prior to the signing of the tena’im by two witnesses, the prospective couple was duly informed regarding the import of the document. As such, the tena’im may serve as one of the potential grounds for dividing the marital assets equally between the spouses.",
+ "It is important to note, however, that some authorities reject the legal significance of the tena’im, given that the prospective couple does not sign it themselves and it is not drafted as a bona fide shtar mutually obligating the couple to recognize marriage as an economic partnership. These decisors argue that the phrase, “They will share their assets equally,” is simply a “shufra de-shtarah,” an embellished clause added for stylistic purposes that has no halakhic import. However, in reply to this position, relying upon Rosh’s opinion, R. H. Shlomo Shaanan, a dayan who serves on a Tel Aviv beit din under the aegis of the Chief Rabbinate contends that the tena’im agreement is to be construed as an explicit condition prior to the onset of marriage and as such this agreement trumps the ketubah which becomes a “shufra de-shtarah.”",
+ "4. Umdana and Minhag Ha-Medinah",
+ "Given the problematic nature of the effectiveness of tena’im, are there any other grounds for arguing that marriage can be predicated upon a model of partnership?",
+ "Halakhic decisors have debated the extent of the applicability of the principle of “dina de-malkhuta dina,” “the law of the kingdom is the law.” Does this mean that civil law must be adhered to even if the Halakhah makes no such demand, or does it imply that civil law may override Halakhah when the two differ? In the opinion of Rema, civil law may govern all legal matters that are “le-takanat bnei ha-medinah,” for the benefit of the citizenry, understood by Rema as referring to any issues relating to social interaction. Vigorously disagreeing with Rema, Shakh argues, and Hazon Ish concurs, that if the particular secular law contradicts Halakhah, dina de-malkhuta dina does not apply. Nonetheless, Hazon Ish states:",
+ "The law of the kingdom [civil government] determinates the expectation of people. Since we customarily abide by the law of the kingdom under certain prescribed conditions, the law influences people, who then decide to rely on civil law … Therefore, when we [the beit din] apply secular law, we are in actuality following our Halakhah rather than their laws.",
+ "For example, Israeli civil legislation dictates terms of tenancy (the Law for Tenant Protection). R. Shlomo Karelitz argues in the name of his uncle, Hazon Ish, that absent any agreement to the contrary between a landlord and tenant, there is implicit expectation, an umdana, that the terms of tenancy will be based on civil law. However, in the absence of a clear indication that the parties wish to adopt civil law, the assumption is that Halakhah is the governing system.",
+ "In effect, the implementation of Halakhah may be predicated upon the expectations of people to follow halakhic tenancy law. The fact that a secular law exists regarding the matter may cause a change in the expectation; although it was originally clear that halakhic tenancy law would be adhered to, there is now a desire to follow secular law. Consequently, the Halakhah changes due to the change in the umdana. Invoking this umdana regarding tenancy law has been endorsed by other authorities as well.",
+ "The underlying rationale for legitimizing this approach is that the parties essentially agreed to resolve their issues according to their expectations, which in our situation means following secular law. In the words of R. Feinstein:",
+ "They have operated on the strength of the custom of the region, and that is equivalent to having specifically agreed to this arrangement.",
+ "While Halakhah itself is immutable, the fact that an umdana can serve as a basis for adopting civil law over the Halakhah in monetary matters is essentially built into the Halakhah itself.",
+ "As such, absent any violations of issurim, which can never be overridden by civil law, this rule would equally apply to spousal property arrangements. In a civil system of community property, spouses own equally almost all property acquired during the marriage, regardless of in whose name the property is. In our case, the spouses are residents of such a state and therefore had expectations that its rules would be implemented. In other words, there is an umdana that should divorce occur, their marital assets would be divided up equally.",
+ "In bold contrast to Hazon Ish and R. Feinstein who define the umdana as the parties’ expectations emerging from secular law, R. Herschel Schachter contends that there is an umdana that the couple views the marriage as a partnership. For example, if the real estate title of a home is in the name of the husband, absent any extenuating circumstances to the contrary, the home belongs to both the wife as well the husband. The differing conceptions of the umdana has practical consequences. For the Poskim who view the parameters of the umdana through the prism of secular law, the result will be that the nature of the economic partnership as perceived by the couple will vary from state to state. Those couples who reside in a state which recognizes community property principles relating to the division of marital assets will expect that both spouses are entitled to an equal share of the marriage. Other couples who reside in a state which have adopted equitable distribution rules for dividing up marital assets will expect that both spouses are entitled to an equitable share of the marriage, each share being equal or a certain percentage of the value of the marital asset. And depending on the individual state law, the assets which are to be divided up may be limited to tangible assets such as a home, a car or a business to the exclusion of career assets. On the other hand, in accordance with R. Schachter’s understanding of the umdana, regardless of where the couple resides the partnership model of marriage may dictate that under all circumstances each spouse is entitled to an equal share of the assets of the marriage.",
+ "Some contemporary authorities have argued that minhag ha-medinah, customary national practice, should govern the division of marital assets upon divorce, irrespective of umdana. Today, the notion of marriage being an economic partnership is ensconced in the American societal mindset; this concept is part and parcel of the legal fabric of every state which operates a system of equitable distribution or community property. In fact, women in observant Jewish families, like their counterparts in the general populace, are in many cases partners with their husbands in maintaining the economic stability of their family. In certain situations, the wife is actually the sole or major breadwinner. As such, the minhag ha-medinah is not only a reflection of or legal reality, but equally a mirror image of our social reality.",
+ "Although the halakhic matrimonial property system rejects this doctrine of economic partnership, R. Daichovsky and R. Ariel Yanai argue that a couple may opt to accept minhag ha-medinah in matters involving the division of marital assets. R. Yanai contends that minhag has the power to override Halakhah as long as the Halakhah is not completely nullified. Therefore, as long as the division of marital assets based upon the adoption of a community property or equitable distribution system will continue to provide the husband a share in the assets, such a division is acceptable. Only if adoption of one of these systems were to preclude the husband from receiving a share of the marital assets would it be tantamount to a minhag uprooting the halakhic matrimonial property system and it would then be prohibited.",
+ "On the basis of recognizing the tena’im as a valid contract and invoking an umdana or minhag ha-medinah, R. Ariel, R. Daichovsky, R. Lavi, R. Avraham Schindler, R. Shlomo Shapiro, R. Sharezee, and R. Yanai have resolved marital disputes based on the notion of the existence of an economic partnership between spouses. Accordingly, Rachel, a resident in a state governed by a community property system, must fulfill the expectations of that system. The debts incurred in a family venture during her marriage are therefore debts of the couple and the responsibility to pay them must be shared jointly.",
+ "5. Monetary Award for a Wife’s Contributions to the Domestic Household",
+ "Classically, rabbinic decisors dividing a couple’s assets upon divorce have been guided by a three-fold classification system. Nikhsei tzon barzel refer to the wife’s assets held by her husband; he is responsible to provide her with either the actual asset or its value upon divorce, while any appreciation or depreciation belongs to the husband. Nikhsei melug refers to the wife’s estate, of which the fruits belong to him without responsibility for loss or deterioration. These assets must be used by the husband for the benefits of the marriage. Finally, a wife may receive property as a present which the donor stipulates that the husband has no control over.",
+ "Based upon this matrimonial property regime, unless there is an agreement to the contrary, in our scenario, the wife would not receive any share in the value of the family business.",
+ "However, beginning in the late nineteenth century, culminating in a twentieth century teshuvah of R. Ben Tzion Uziel and a series of Israeli rabbinical court decisions spanning a period of over fifty years, batei din, utilizing their discretionary authority, have awarded monetary awards to a wife for her role as a homemaker and\\or child caretaker, based on the financial capacity and economic future of her husband as well his current income. In fact, in two of the earliest Israeli Rabbinical court rulings regarding such matters, the beit din awarded a monetary share in a husband’s business due to a wife’s involvement in the development of the business and due to her contributions in childrearing and managing the household.",
+ "Accordingly, due to her contributions to the household and business and her husband’s earning potential, Rachel should receive fifty percent of the value of the family business, regardless of the extent of her husband’s capital investment and contribution to the growth of the business. On the other hand, based upon the cumulative evidence, we view the marriage as an economic partnership rather than an example of an “isha noseit ve-notenet betokh ha-bayit” who is the husband’s agent. The Tova’at is therefore obligated to share in paying off the outstanding commercial debt in proportion to her investment in the venture.",
+ "Decision",
+ "1. Reuben Cohen shall hereby pay Rachel Cohen fifty percent of the net value of the family business.",
+ "2. In accordance with the percentage of her capital investment in the business, Rachel Cohen is hereby responsible for a percentage of the debts incurred by the family business.",
+ "A Final Thought",
+ "The foregoing presentation, which is inspired by an actual beit din decision, demonstrates that the division of marital assets upon divorce may be resolved by adopting varying and opposing approaches. Invoking a particular perspective will ultimately affect how the marital assets and debts in the family venture will be distributed between the divorcing couple. While adopting one model of “isha noseit ve-notenet betokh ha-bayit” leads one to the conclusion that a husband is solely responsible for any debt incurred even if his wife cosigned the loan, recognizing the notion that marriage is an economic partnership – based upon the validity of the tena’im or an umdana that the parties agreed to abide by secular law – indicates that the wife is responsible for half of the business debts, provided that the capital investment was the same for both spouses, and that she should receive half of the business’s net value. While recognizing the wife’s contribution to the business or as a homemaker leads to the conclusion that she should receive a fair portion of the business, adopting the tripartite marital property classification would entail awarding the entire net value of the business to her husband. ",
+ "Couples who appear before a beit din may choose to resolve their differences in one or two ways. One option, which was the one chosen by the Levys, is to sign an arbitration agreement empowering the dayanim to resolve this matter according to the applicable portions of Shulhan Arukh and Poskim. Alternatively, a couple may decide to resolve the conflict in accordance with secular law and sign an agreement empowering the beit din to do so (accompanied by a symbolic act confirming the binding nature of the agreement). Some dayanim will resolve division of marital assets according to civil law based on the signing of such an agreement.",
+ "Seemingly, the latter approach is fraught with perilous ramifications, as it seems to ignore the prohibition against recourse to arka’ot shel akum, litigating in non-Jewish courts. As R. J. David Bleich notes:",
+ "Recourse to a gentile forum is tantamount to a declaration by the litigant that he is amenable to allowing an alien code of law to supersede the law of the Torah … The litigant appears before the gentile courts because he accepts their authority, and if they administer the law of Moses he accepts that law not because he regards it as binding upon him by virtue of having been commanded by God, but because it has been endorsed and adopted by gentiles …
The prohibition … is not limited to bringing a suit before a gentile court … The prohibition includes any judicial proceeding that negates the Law of Moses. A judicial body composed entirely of judges who happen to be members of the Jewish community but who administer an alien system of law is undoubtedly to be classified as within the halakhic category of arka’ot shel akum for the simple reason that the laws such a court administers are not those of the Torah.
Since … acquiescence by both litigants does not serve to mitigate the prohibition … and since the prohibition applies even when the judges themselves are Jews, it follows that the parties are not entitled to accept the authority of a rabbinic court … but stipulate that the beit din shall apply the law of a secular state. Accordingly, if two parties … enter into a contract and stipulate that any dispute with regard to fulfillment of the terms of the contract is to be resolved by a rabbinic court in accordance with, for example, the laws of the State of Delaware, the stipulation is void by virtue of being inconsistent with biblical law (matneh al mah she-katuv ba-Torah).",
+ "As noted above, individuals are empowered to make agreements contrary to Halakhah provided that these agreements do not violate ritual law. An agreement to adjudicate in a beit din but according to secular law would thus seem to be invalid. Indeed, such arrangements have met with trenchant criticism from the Aharonim, and a number of contemporary Poskim, such as R. Elyashiv, R.Sherman, R. Spitz, and R. Zvi Gartner, concur in rejecting such agreements.",
+ "Nevertheless, there is a coherent and persuasive halakhic tradition, commencing with Rashba, that supports the acceptance of this type of arrangement. The Sma and Netivot ha-Mishpat endorsed the idea, as do numerous contemporary authorities, such as R. Daichovsky, R. Z. Goldberg, R. Asher Weiss, and R. Yitzhak Weiss of the Eidah ha-Haredit and other Israeli dayanim. In fact, numerous shtarot (halakhic legal agreements) dating back to the time of Rishonim attest that the parties agreed to have their disagreements resolved according to secular law. Finally, an agreement by parties to have their differences resolved in accordance with secular law by a beit din ought to be valid; no different than Torah-observant Jews who decide to proceed to an attorney requesting that he draft a contract according to civil law.",
+ "According to these authorities, spouses who enter into an agreement to resolve their financial matters according to civil law are merely withdrawing from the privilege granted by the halakhic legal system in order to avail themselves of some benefit in one particular situation; they are not indicating wholesale affirmation of the secular legal system, and the agreement is therefore binding. Such an arrangement is no different than a case in which a woman consents to receive no support from her husband; although she waives her right to one of the privileges of nissu’in, the institution of nissu’in itself remains intact. Clearly, however, prior to executing such an agreement, the parties should seek the guidance of a rabbinical authority who has expertise in matters of Even Ha-Ezer and Hoshen Mishpat.",
+ "Had the couple in this case agreed to have their affairs governed by secular law, the issue of how marital assets and debts would be divided between them would vary from state to state. Since this couple resided in California, which is governed by community-property principles, upon dissolution of the marriage, a beit din would likely have placed the husband and wife on equal footing regarding the sharing of debts and receiving the net value of the family business. If they had been residents of an equitable distribution system state, such as New Jersey and New York, where marital property is divided “fairly” based on a weighing of various factors, the beit din would have arrived at an equitable determination regarding how to address the matter of the outstanding debt and distribution of the net value of the venture between the divorcing couple."
+ ],
+ "b) Spousal Abuse as Grounds for Obligating a Get": [
+ "B. Spousal Abuse as Grounds for Obligating a Get
Rochel Cohen v. Eli Cohen",
+ "Tova’at’s Claims",
+ "The Tova’at demands a get because her husband coerces her to perform sexual intercourse or other acts against her will, and she therefore detests him. Because of unnatural cohabitation, she argues her sex life has become a living hell. Her husband demanded that she lie with him during the day and night, leaving her intolerably sleepless and exhausted. Suffering real torment, she was unwilling to comply with such demands. Initially, she refused to have intercourse with her husband out of anger and torment. Now, she refuses to have intercourse because she no longer wants to remain married to him.",
+ "In addition to the acts of physical assault, spousal rape, and exaggerated sexual demands, the Tova’at is suing her husband, claiming humiliation due to the bestial manner in which she was treated during intercourse and as the victim of emotional abuse due to his verbal degradation. In addition, over a period of five years, the Nitva conducted extra-marital affairs, and is therefore a ro’eh zonot (adulterer). He has persisted in his activities despite the fact that she has warned him on at least two occasions that such behavior is improper and that she will seek a divorce. Consequently, the Tova’at left the marital home with their children, moved into a separate apartment, and now seeks a get.",
+ "Additionally, the Tova’at claims that she is entitled to spousal support until a get is delivered to her. Furthermore, her husband should reimburse her for the outlay of rent for the nine months she had to rent an apartment. Moreover, prior to her marriage, the Tova’at owned an apartment complex. During her marriage, the Nitva managed the buildings and collected the rent from the tenants. The Tova’at has discovered that $150,000 of the rental fees were used by the Nitva to fund his illicit affairs. As such, the Tova’at advances a claim for said monies.",
+ "Nitva’s Claims",
+ "Invoking the Talmudic dictum that “a man may do whatever he wishes with his wife,” the Nitva argues that he has a right to engage in sexual intercourse with his wife in any shape and form, even without her consent. Moreover, he argues that generally speaking he did not physically assault his wife, and there are no perceptible marks on his wife’s body that would corroborate his wife’s claim. The few times that he physically abused her were due to his wife’s incitement, and he should therefore be exempt from responsibility for his behavior. Moreover, he apologized to her on various occasions and desires her forgiveness. Because she voluntarily left the marital home, the husband claims that he is exempt from paying her rent or spousal support from the time she vacated the home. Finally, although he admits to having engaged in illicit affairs, the Nitva wishes to reconcile with his wife and requests that the beit din issue a ruling of shalom bayit, the restoration of domestic harmony.",
+ "Discussion",
+ "The issue at hand is how the Halakhah addresses physical, sexual, and emotional abuse, as well as adultery. If, in fact, such behavior transpired and the wife warned her husband to desist from this behavior, does there remain grounds for a beit din to foster shalom bayit, or is it the beit din’s duty to compel, obligate, or recommend the husband to deliver a get to his wife?",
+ "1. Respecting a Wife’s Dignity",
+ "Unlike other secular legal systems, the Talmud emphasizes that a husband is obligated to honor his wife. This position is articulated in a normative fashion by various authorities. Rambam rules:",
+ "A man shall honor his wife more than his self and shall adore her as he adores himself … And he shall not intimidate her, and he shall speak gently with her …",
+ "Subsequently, this ruling was incorporated by the Shulhan Arukh.",
+ "Expressions of the requirement to respect one’s wife are found in the tena’im, the conditions of marital engagement, and in the ketubah, the marriage agreement. Thus, one must work in order to support his wife in accordance with her social status.",
+ "Moreover, wife-beating is a crime and punitive measures, including but not limited to imprisonment, have been imposed upon violent husbands. In earlier periods of Jewish history, halakhic authorities in various European communities sanctioned different modes of excommunication in such cases, such as expelling the husband from the synagogue. The ruling that one who injures his friend is obligated to pay damages applies equally to wife-beaters. Since the duty of honoring one’s wife is greater than the obligation to honor oneself, the punitive measures for noncompliance should be more severe. In our case, the Nitva was incarcerated temporarily for his abusive behavior.",
+ "Even if the harm directed against the wife occurred during intercourse, a husband is liable for sexual battery. Furthermore, the Nitva’s representation that the Talmud permits a husband to do whatever he wishes to his wife is incorrect. Although the Talmud and post-Talmudic authorities permit any forms of unnatural intercourse, all forms of intercourse require a wife’s consent. As Rambam states:",
+ "[The wife] is not his slave to be compelled to have intercourse with someone she hates.",
+ "R. Yosef of Trani (Maharit) notes:",
+ "Certainly, she is not subject to him incessantly when she does not desire it.",
+ "Hence, a wife is entitled to object to conjugal relations, such as when she has quarreled with her husband. Coerced cohabitation in any shape or form is prohibited.",
+ "2. Marital Separation and the Duty of Continuing Spousal Support",
+ "Clearly, if the Nitva refuses to desist from physical and sexual violence, his wife is not only entitled to leave the marital home, but beit din is halakhically empowered to issue restraining orders against him, directing him to leave the home. The grounds for such separation are the Talmudic guidelines of “a man cannot live with a serpent in the same basket” and “the purpose of our being is for life, not for pain.”",
+ "In the United States, a beit din is not legally empowered to issue such orders. Nevertheless, upon the request of the Tova’at and based upon corroborating information which attests to the Nitva’s behavior, had they been approached, the dayanim would have directed her to seek assistance from the civil authorities. Given that the Tova’at, on her own initiative, has left the marital home, there is no need to address this matter.",
+ "Lest one argue that Halakhah recognizes only the two options of marriage and divorce and rejects the possibility of marital separation, Rema states:",
+ "We neither coerce him to divorce her nor her to live with him. ",
+ "On the contrary, the purpose of separation is to ease the tensions between the spouses and give each spouse time and breathing room to hopefully resolve their differences. Consequently, de facto, the separation was legitimate.",
+ "Whether a wife who abandons the home is entitled to continuing support is dependent upon the reason for her departure. If she vacated the home due to the fact that her husband was delinquent in his marital duties, such as his duty of spousal support, the wife would not be entitled to such remuneration. On the other hand, if the wife separates because she was abused, she is entitled to ongoing maintenance, as well as reimbursement for lodging expenses.",
+ "Of course, this entitlement is contingent upon the fact that she can demonstrate that her husband is abusive. In our scenario, the Nitva argues that his wife incited him to act violently toward her and that there therefore was no justification for her to leave the marital home. However, the burden of proof is upon the husband to prove that his behavior was in response to his wife’s incitement. There is a presumption that women are faithful, and we therefore do not believe the husband that his wife provoked the assault. Moreover, Rabbis O. Yosef, Betzalel Zolty, and S. Yisraeli note that a single act of provocation does not legitimize the right of physical assault. Finally, since he frequently physically abused his wife, we are unwilling to believe that she provoked him on each and every occasion.",
+ "Contrary to the Nitva’s claim, the Tova’at alleges that on numerous occasions, the Nitva abused her without provocation, a claim that the Nitva denies. In light of this denial and the absence of physical indications attesting to such assaults, is there sufficient basis for concluding that the husband is a wife-beater and abuser? This issue is complicated by the fact that the authorities debate whether a woman is believed regarding her allegation that her husband engaged in unnatural intercourse without her consent.",
+ "Despite the fact that the husband does not admit his guilt, the testimony of third parties – including women, who are usually invalid witnesses – as well as medical records and advisory opinions of health professionals who interviewed and counseled the couple, serve as evidence of the Nitva’s proclivity to violence and antisocial behavior.",
+ "Thus, given that the wife’s abandonment of the marital home was justifiable, she is entitled to receive her maintenance and to be reimbursed for her outlay of rent.",
+ "3. Shalom Bayit and the Requirement of Forewarning",
+ "Prior to addressing whether there are grounds for issuance of a divorce judgment, it is the responsibility of a beit din to inquire whether the restoration of shalom bayit is a possibility. In a case of irreconcilable differences, the beit din would invoke the position of Rabbeinu Yeruham and support the issuance of a get. In the present case, however, the husband’s plea for shalom bayit may indicate that this is not a situation of irreconcilable differences, culminating in a “dead” marriage. Although husband and wife have been separated for over nine months, the husband argues that there still remain prospects for reconciliation. We must therefore make an attempt to examine whether, in fact, this marriage could survive and eventually become stable or if it is truly beyond repair.",
+ "R. Avraham Sherman states:",
+ "The concept of shalom bayit between the couple and among the family is not merely an expression of the individual emotional state between the couple and their children. Marriage between spouses was not designed only to grant privileges to each spouse. The fact of matrimony creates a legal situation which imposes duties upon each spouse vis-à-vis the other, and when children are born, their birth creates a state of parental obligations towards them …",
+ "Can we lay the groundwork for promoting tranquility between the spouses and engender a more suitable environment for raising their children? Can we facilitate the sustaining of an environment in which this father will be able to serve as a halakhic-ethical model for his children and inculcate within them Torah values?",
+ "It appears that we can extrapolate from a case posed to Rivash and Maharashdam. For ten months, a couple attempted to conceive a child, but it is apparent that the husband is impotent. Is his impotence sufficient grounds for acceding to the wife’s request for a get? According to Rivash, if the wife is insistent on the divorce, the beit din should issue such a judgment. Maharashdam demurs, however, arguing that if there is a possibility that the husband may be cured, and for the sake of shalom bayit, we should direct the couple to wait and see if the medical matter resolves itself. If no cure is forthcoming, the beit din may then issue a divorce ruling. Pursuant to both views, if there is no hope for a cure and the wife is insistent on a divorce, the beit din must render a divorce judgment.",
+ "In our case, the Nitva’s frequent acts of wife-beating reflect the personality of a mentally deranged individual, and there is no hope for rehabilitating him. As a result, the rendering of a divorce judgment is appropriate. In fact, some professional studies have demonstrated that rehabilitation programs for male perpetrators of domestic violence appear to be less effective in reducing recidivism than programs for other offender groups. Hence, hope for shalom bayit does not appear to be on the horizon.",
+ "Had this marriage been marked by consensual sexual relations with isolated instances of physical abuse, we might have arrived at the conclusion that the Tova’at accepted her husband’s improper behavior and that there therefore may be a prospect for shalom bayit. Clearly, a one-time assault followed by a husband’s desire to appease his wife does not serve as grounds for divorce. Furthermore, Rema writes that it is necessary that the husband be warned regarding the consequences of his behavior before a divorce may be demanded.",
+ "In our case, however, the fact that the Tova’at consistently refused to engage in coerced sexual intercourse and warned her husband more than once to desist from his unacceptable conduct undermines this approach. If a husband persists in his behavior even after he has been warned – by his wife, beit din, or even the police – clearly divorce is the only remaining option. Moreover, if the abuser has been convicted of abuse, if his one assault posed a danger to his wife’s life, or if his behavior is uncontrollable, there is no need to mandate a forewarning at all. Clearly, then, the Tova’at complied with the requirement of forewarning as mandated by Rema. Furthermore, there are Poskim who contend that in contemporary times there is no requirement of forewarning.",
+ "Finally, the fact that the husband seeks his wife’s forgiveness has no redeeming value in the wake of a marriage marked by acts of physical violence and cruel treatment.",
+ "4. Physical Abuse as Grounds for Divorce",
+ "Thus far, we have seen that the Tova’at was justified in leaving the marital home and is entitled to remuneration for maintenance and rental expenses. We have further concluded that the beit din has little reason to assume that shalom bayit is a likely outcome, and the Tova’at may therefore request a get. The question at hand is therefore whether the Nitva can be compelled to give her the get. In other words, does the husband’s physical abuse of his wife violate Halakhah and therefore constitute grounds for divorce? Should the beit din simply recommend that the parties divorce, obligate the husband to grant a divorce, or actually coerce him to grant a divorce (kefi’at ha-get)?",
+ "An abuser is viewed as a poshei’a (one who acts intentionally is negligent). Therefore, if a man injures his wife, even while engaged in consensual sexual relations, if he had intent to injure her, he must compensate her for the damage. Moreover, engaging in conjugal relations without the consent of one’s wife (spousal rape) or when angry with her are equally violations of Halakhah.",
+ "If there was forewarning, attempt for shalom bayit has been undertaken, and other quasi-legal sanctions – such as excommunication or social shunning – have been implemented, some authorities, such as R. Yosef ibn Avitur (eleventh century Spain), Rabbeinu Simcha (thirteenth century Ashkenaz), and R. Yitzhak ben Moshe (thirteenth century Vienna), would compel a husband to grant a get to his abused wife. Other decisors, such as Rashba, Ridbaz, and R. Avraham di Boton, argue that a beit din may only obligate a husband to grant a get in such a case.",
+ "In formulating his ruling on the matter, R. Yosef Karo states:",
+ "One cannot rely on the opinions of the Agudah and Rabbeinu Simcha, and therefore we cannot coerce him to give a get due to the fact that these opinions have not been mentioned by the renowned decisors.",
+ "Contemporaneously and in response to R. Karo, Rema argues in his commentary to Tur:",
+ "I do not understand his position … There are grounds to rely upon these views. Ramban and Maharam agreed in their teshuvot on the matter of wife abuse and they adduced proofs for their words, and logic concurs with them. The reason why these authorities were not mentioned by the decisors is possibly due to the fact that it was so obvious.",
+ "Unsurprisingly, in his gloss to Shulhan Arukh, Rema rules:",
+ "If a man beats his wife, this is a sin and is akin to someone who assaults his friend. If he is accustomed to such conduct, beit din is empowered to punish him, excommunicate him, and flog him … And if he does not comply with beit din’s directive, some say we compel him to divorce his wife, provided that he has been forewarned once or twice.",
+ "According to Rema, should sanctions and an admonishment be ineffective, a husband who regularly beats his wife will be compelled by beit din to deliver a get to his wife, despite the views to the contrary. Furthermore, it appears that had the views of Rabbeinu Simcha and Agudah been cited by the renowned decisors, R. Karo would have concurred with their position as well.",
+ "Given that halakhic divorce is possible only if both parties agree to it, how is it possible to compel the husband, even an abusive one, to grant his wife a get? Ostensibly, such a get should be classified as a get me’useh, a coerced get, which is invalid. On what grounds, then, can the beit din compel, or even obligate, a recalcitrant husband to divorce his wife?",
+ "Rambam offers a famous answer to this question, explaining that every Jew essentially wishes to comply with the tenets of Halakhah; if he refuses to do so, it is due to his evil inclination overpowering his true will. The beit din’s coercion is simply a means to reinstate his “true will” – either to fulfill the Halakah or to provide the get. For R. Karo and Rema, the abusive husband’s “true will” in this case is to fulfill the Halakhah and grant his wife a get.",
+ "Given that there is some dispute regarding whether an abusive husband should be compelled to grant a get, can a beit din compel him to do so? Echoing the words of R. Yitzhak Elhanan Spector, R. Yitzhak Herzog states:",
+ "Even though he [the husband] knew that there is some rule that he should not be compelled, he was reconciled because the court ruled that he should be compelled, because it is a mitzvah to obey the scholars of your generation.",
+ "In other words, the true will of an observant Jew is to comply with the norms of Halakhah, including the granting of a get, as understood by the beit din that the husband has accepted to serve as the arbiter of his situation. Regardless of the fact that other legists may disagree with his arbiter, the husband’s “true will” is to follow his chosen arbiter; should the arbiter compel him to give a get, there is no element of compulsion, for he voluntarily acquiesces to the directive of his arbiter. Pursuant to this view, the existence of controversy regarding whether one should coerce a get in the case of abuse would not preempt the possibility that an arbiter could render a ruling compelling the issuance of a get.",
+ "According to Hatam Sofer and others, however, a divorce can only be compelled when there is unanimous agreement among the authorities that a compelled divorce is valid under those circumstances. If there is controversy regarding the matter, the beit din cannot postulate regarding what the “true will” of the husband is. In practice, this is the view adopted by many batei din. Consequently, given that it is subject to controversy whether wife-beating is grounds for compelling a divorce, the issuance of such a judgment would fail to reflect the husband’s true will; should a judgment be rendered to compel a divorce, the result would be a get me’useh.",
+ "Nonetheless, as we have seen, R. Karo concurs with Rema that in a situation of spousal physical abuse, a beit din will obligate the husband to grant a divorce. Therefore, although we cannot compel the Nitva to grant his wife a get in our case, we can obligate him to do so.",
+ "5. Emotional Abuse as Grounds for Divorce",
+ "We will now turn our attention to the question of whether the Tova’at’s emotional pain is grounds for granting a divorce judgment.",
+ "R. Shimon bar Tzemah Duran (Tashbetz) addresses a case in which a husband physically endangered his wife’s life by depriving her of food. In his attempt to determine whether this constitutes grounds for divorce, Tashbetz draws two analogies to psychological abuse:",
+ "If a husband declares, “I will neither feed nor provide for my wife,” he is compelled to grant her a divorce … If bad breath would be grounds for such compulsion [as stated in the Talmud Yerushalmi], her very soul is far more so! … In this case, he should divorce her and pay the amount stipulated in the ketubah, because it is written that “she was to live with him and not to suffer with him” … If even concerning one who prohibits his wife from doing things which are not so painful for her, we rule that he should divorce her and remit the ketubah money … a fortiori when he causes distress on a regular basis that we should say that he should divorce her and pay the amount earmarked in the ketubah.",
+ "Tashbetz’s use of analogy to cases of psychological abuse in determining the status of physical abuse is not an isolated instance. In obligating a wife-beater to grant a get, Rashba finds support for his conclusion in the Mishnaic ruling obligating a husband to give a get in a case of a husband who attempts to prevent his spouse from associating with her family and/or friends.",
+ "Thus, as counterintuitive as it appears, for both Rashba and Tashbetz, the level of enforcement of a divorce judgment relating to emotional abuse was clear and required no lengthy argumentation to defend. On the contrary, for these legists, the real issue for resolution lies in the realm of spousal battery; they determine the proper ruling in the latter case based on the conclusion in the former. Medieval legists thus clearly recognized the significance of emotionally abusive behavior and its implications for the health of a marriage.",
+ "Addressing the case of a wife who was the victim of verbal and emotional abuse and who then fled her home to live in a shelter, an Israeli rabbinical court rules:",
+ "The truth of the woman’s words is clear and the pain she has articulated is sincere … Emotional violence by a husband is sometimes more serious than physical violence … The woman has a right to live and not to be in sorrow …",
+ "As a result, the beit din decided to terminate the marriage and obligate the husband to grant a get to his wife.",
+ "Similarly, given the emotional scarring caused by the Nitva in our case, we obligate him to grant his wife a get.",
+ "6. Adultery as a Grounds for Divorce",
+ "Even had the husband acted completely normally in his relations with his wife, there would be grounds for issuing a divorce judgment in this case based upon the fact that he was an adulterer. Addressing such a situation, R. Alexander Zuslin (Agudah) argues along the same lines as Tashbetz that if the Talmud Yerushalmi directs the compulsion of a get in cases of foul breath, a fortiori, such a conclusion should apply to an adulterer. Assuming that witnesses corroborate the husband’s behavior or the husband admits to being an adulterer and he has been forewarned to desist from this behavior, a get should be compelled in such an instance. This attests to the horrific nature of the act of adultery in destroying the family unit and the acute need to dissolve this marriage due to such conduct, rather than the sinful nature of the act itself.",
+ "Agudah’s ruling that adultery is grounds for coercion of a get was reaffirmed by Rema. Depending on the particular facts of the case, various Israeli rabbinical court decisions have either coerced an adulterer to grant a get or have obligated him to do so.",
+ "Given that the Nitva admitted to his frequent improprieties, we obligate him to grant a get to the Tova’at. Although the Nitva was not forewarned regarding this particular matter, in our estimation, given the psychological makeup of the Nitva, the frequency of his illicit behavior, and the emotional stress caused by his behavior, we may forego the requirement of a forewarning.",
+ "7. A Husband’s Dissipation of Family Assets",
+ "Finally, let us address the Tova’at entitlement to recoup $150,000 from her husband due to his dissipation of the family assets to finance his adulterous behavior. In some communities, on the occasion of a shiddukhin (an engagement), it is customary to sign a tena’im enumerating various parental obligations and the anticipated month of the wedding (or the actual wedding date). The document attests that the parties have fulfilled all of their mutual obligations and should refrain from any fraudulent conduct, and stipulates a monetary penalty should a party to the agreement default.",
+ "Because the prospective couple does not sign the tena’im and because the content of the tena’im is not drafted as a bona fide shtar mutually obligating the couple to engage in their financial affairs with transparency and accountability, some decisors reject the halakhic-legal significance of the tanna’im. Nevertheless, numerous decisors, such as Mahari Weil, Maharik, Maharsham, Noda be-Yehuda, Birkei Yosef, and Rav Pe’alim, invoke this premarital clause as governing the monetary ties between spouses during their marriage. Consequently, if such a document were signed, the Nitva’s siphoning of family funds for illicit affairs entails fraud and is a violation of this premarital obligation.",
+ "Because some may argue that this conclusion is based on a questionable halakhic position and at best should only be construed as a senif (an appendage) to buttress a more persuasive stance, we will present a more feasible explanation for the Nitva’s liability as well.",
+ "Classically, rabbinic decisors dividing a couple’s assets upon divorce have been guided by a three-fold classification system of assets. Nikhsei tzon barzel refer to the wife’s assets held by her husband; he is responsible to provide her with either the actual asset or its value upon divorce, while any appreciation or depreciation belongs to the husband. Nikhsei melug refers to the wife’s estate, of which the fruits belong to him without responsibility for loss or deterioration. These assets must be used by the husband for the benefits of the marriage. Finally, a wife may receive property as a present which the donor stipulates that the husband has no control over.",
+ "Based upon this matrimonial property regime, the apartment complex owned by the Tova’at is to be subsumed under the category of “nikhsei melog.” As such, any accrual of profits, such as rent, must be used for the benefit of the domestic household. Since the Tova’at was able to prove that the rental receipts were diverted to fund her husband’s improper activities, it is clear that the Nitva’s use of the assets actually undermined the family unit, and the Tova’at is therefore entitled to recoup such monies.",
+ "In short, the Nitva’s absconding with these assets was both a violation of a premarital agreement recorded in the tanna’im and an undermining of the matrimonial property regime.",
+ "Decision",
+ "Based on the facts presented, the panel finds as follows:",
+ "1. Eli Cohen is hayav (obligated) to give a get to Rochel Cohen.",
+ "2. Eli Cohen is obligated to hereby immediately pay $150,000 to Rochel Cohen."
+ ],
+ "c) A Father's Duty of Child Support towards His Estranged Children": [
+ "C. A Father’s Duty of Child Support towards His Estranged Children
Ya’akov Levy v. Miriam Levy on behalf of Yerucham and Talya Levy",
+ "Pursuant to the terms of a divorce agreement, the father Ya’akov Levy (Tove’a) is obligated in child support until his children reach the age of 18. Physical and legal custody of the two children – his 12-year old son, Yerucham, and 10-year old daughter, Talya – was awarded to Miriam Levy (Nitva’at), the mother, and the father was awarded visitation privileges. The Tove’a subsequently remarried and within three years had two children with his second wife.",
+ "The relationship between the father and his children was tense due to the divorce and his subsequent remarriage. The parties mutually agreed to see a psychologist. Nevertheless, after a series of sessions spanning a period of nine months, the therapist was unable to lay the groundwork for reconciliation. Eventually, the children became totally estranged from their father and refused to visit him.",
+ "Tove’a’s Claims",
+ "The Tove’a argues that his children are minors and that their wishes regarding participation in a visitation agreement should therefore be irrelevant. Moreover, given that the divorce agreement grants him visitation privileges, the Tove’a contends that since his children do not want to spend time with him, he is no longer duty-bound to support them.",
+ "Nitva’at’s Claims",
+ "Because the majority of the children’s leisure time is spent in their mother’s home and their father has a new family, the Nitva’at contends that the children are estranged from their father and no longer have a relationship with him; they therefore do not want to visit him in his home with his new family. In response to the Tove’a’s argument that the cessation of visitation is a violation of their divorce agreement and that he is therefore exempt from child support, the Nitva’at claims that the agreement does not stipulate that maintenance is contingent upon visitation. Thus, although the children decline to visit him, the support obligation continues to be operative.",
+ "Discussion",
+ "1. A Minor as a Ba’al Din (Litigant) in Child Placement Proceedings",
+ "Prior to reaching majority (for a girl, up until the age of 12 years and a day, and for a boy, up until the age of 13 years and a day), a child is viewed as a katan (minor) for all matters. Because they lack da’at, the rational capacity for decision-making, ketanim may not be litigants before beit din, even regarding matters relating to them. Consequently, minors are represented by their parents, who serve as their apotropsim (guardians) and are entrusted to manage their children’s interests, including appearing before beit din on their behalf. It is only upon reaching majority that a child can be a ba’al din, at which point no issue relating to him can be resolved before beit din in his absence.",
+ "Thus, for example, if a father obligates himself to support his daughter and subsequently becomes divorced, the mother, in her capacity as apotropos, is mandated to advance any and all claims on behalf of her child. In this case, the mother appeared at the hearing as the Nitva’at on behalf of her minor children in an attempt to ensure that the Tove’a would not renege on his commitment, the hov (duty) of support he has to fulfill towards his children.",
+ "Although a minor is halakhically considered bereft of da’at, this only affects the efficacy of his or her legal acts, such as buying and selling, and his or her accountability for sins committed. This does not mean, however, that the child’s wishes are entirely irrelevant. Child placement is not a legal action predicated upon the notion of da’at, and a child’s wishes relating to custody or visitation placement are therefore pertinent. On the contrary, in order for the beit din to determine the placement that is in the best interests of the child, it is certainly prudent to hear from the child himself. In fact, since children are often used as pawns in divorce proceedings and are manipulated by one or both of their parents, it is the beit din’s responsibility to discover the child’s true wishes, rather than to blindly accept what a parent wants the child to communicate to the beit din panel.",
+ "The late R. Eliezer Goldschmidt, a renowned Israeli dayan, aptly notes:",
+ "The child is the litigant regarding his placement during the time of the divorce, and he is a litigant after the divorce, he and nobody else … The child is always a litigant and he is plaintiff, and the mother is the guardian who represents him in his claim and advances a claim in his name.",
+ "In fact, a child’s needs are not necessarily determined by a divorce agreement executed between his parents. A child may advance any claim, independent of what has been documented in the divorce agreement, and he may challenge any provision of the agreement that is detrimental to his welfare.",
+ "Viewing the child as the plaintiff reflects the idea that a child is a person who must live in an environment that will serve his best interests, rather than as an object for the benefit of one of his parents. The minor’s input regarding his placement and visitation, among other things, contribute towards discerning what environment will provide optimally for his growth and personality development.",
+ "For example, the majority of Poskim have ruled that in the case of a daughter, regardless of her age, the welfare of the child is best served by placing her with her mother, so that she will be properly instructed in the ways of modesty and halakhic-moral propriety. However, should the minor daughter prefer to reside with her father, we respect her wishes, if the beit din determines that this reflects her best interests. Similarly, the Rashbash discusses a case in which a widow wished to take her minor daughters with her to Israel and some of their relatives opposed the move. The Rashbash rules that if the daughters are intelligent and agree to the move, the mother’s decision is upheld. The Mabit rules that even if a mother consented to having her daughters live with their father, if the girls are uncomfortable with the arrangement and wish to return to their mother, they may do so, as we must consider the children’s wishes and personal welfare.",
+ "Taking a child’s wishes into consideration applies equally to a minor son. For example, R. Moshe Alsheich discusses a case of a father who disappeared and was presumed dead. A beit din entrusted his son to an apotropos. Subsequently, the mother wanted to move to Israel with her minor son, and the apotropos objected, arguing that the son should remain with the father’s parents. The child expressed his wishes to remain with his mother. Ruling that the child’s wishes are paramount and that the guardian’s appointment related solely to the child’s monetary matters, R. Alsheich concludes that the child should move to Israel in order to reside with his mother.",
+ "Thus, in our case, although the children are minors, their wishes regarding participation in the visitation agreement must be taken into consideration. The children’s feelings communicated to this panel – relating to, among other things, their father’s decision to divorce their mother, his verbally abusive behavior towards their mother, and his desire to begin a new life with a new family – explain their estrangement from their father. Hence, we affirm the right of the children to decline to visit with their father.",
+ "2. The Nature of a Father’s Child Support Obligation",
+ "A father is primarily liable for mezonot yeladim (child support) by virtue of his paternity, irrespective of whether the marriage has been terminated by divorce or death or whether the child was born out of wedlock. Until they reach the age of six, by dint of being a father, he is obligated to support his sons and daughters, even if the child has his financial means for self-support. From the age of six until a child reaches majority, a father is obligated as a relative, pursuant to the laws of tzedakah (charity) or minhag ha-medinah (national custom), rather than as a father. Consequently, only a wealthy father may be compelled to support a child between the age of six and the age of maturity, while a father of limited means is not subject to compulsion.",
+ "As duly noted by a contemporary rabbinical court:",
+ "There is no privity between an individual who is duty-bound by dint of the halakhot of tzedakah and the beneficiary [of the tzedakah], since he [the giver] does not owe him [the beneficiary] a debt; he is obligated in hilkhot tzedakah, rather than [in giving] to a specific person. ",
+ "Thus, although a father can be compelled to provide for his child until the age of six regardless of his means, after that point, only halakhic-moral persuasion is possible if the father is not wealthy. Thus, a child over the age of six must demonstrate that his father has the means to support him and that the child does not have the wherewithal to support himself.",
+ "In the present case, the children are above the age of six, and their father is therefore obligated to support them pursuant to hilkhot tzedakah.",
+ "3. The Rules of Child Placement",
+ "The majority of decisors argue that the welfare of a child of tender years is normally best served by placing him with his mother, provided that the father has visitation privileges in order to fulfill his educational duties vis-à-vis his child. Above the age of six, a son must reside with his father, since from this age onwards, the child requires intensive educational guidance from his father. Regardless of her age, a daughter remains with her mother.",
+ "As we saw above, however, these rules are legal presumptions; given evidence that a different arrangement is in the child’s best interest, the beit din may determine that such an arrangement is the better course of action. Rema observes:",
+ "It seems to the beit din that it is good for the daughter to live with her mother. However, if it seems to the beit din that it is better for her to be placed in her father’s home, the mother cannot force the father to relinquish custody.",
+ "R. Mordekhai ben Yehuda ha-Levi (seventeenth century Egypt) similarly states:",
+ "Generally speaking, the Sages of the Talmud said that a daughter should be placed with the mother, as should the son in his earlier years, and later [he should] be with his father … All this is for the benefit of the child … But if the beit din determines that the child’s well-being is not served with this arrangement, but rather is detrimental, they should alter their decision in accordance with the child’s well-being, as it appears to the arbiters.",
+ "Numerous authorities have endorsed this notion, maintaining that the rules of child placement are not set in stone and the child’s best interests should determine whether to apply a particular rule.",
+ "In certain cases, the arbiter operates based on his own discretion and common sense, without applying any rules. For example, the Ge’onim discuss a case in which an infant’s mother died and his father moved away, and both sets of grandparents sought custody of the child:",
+ "It seems that one ought to enquire what will be the good of the baby (tivuta de-tinok). If he is accustomed to one set of grandparents, recognizes them, and is happy with them, they ought to take the baby, since his mind will be more comfortable with them.",
+ "4. The Relationship Between Child Support and Child Placement",
+ "The Talmud does not address the Tove’a’s claim that a father’s support obligation is contingent upon the child’s willingness to live with or visit his father. Rambam, however, does address the relationship between child maintenance and child placement:",
+ "After the child is six years old, the father may say, “If the child stays with me, I will support him, but if he remains with his mother, I will not pay for support.” And the daughter remains always with her mother, even beyond six years.",
+ "Various interpretations of this statement have been suggested. According to one interpretation, a father cannot coerce his six-year old son to leave his mother and to live with him, whether the son refuses because he is personally uncomfortable living with his father or because his mother has convinced him to remain with her. Others construe Rambam as stating that one cannot remove the son from his mother’s home against her will. According to both interpretations, should the boy remain with his mother, the father is exempt from his support duty.",
+ "Because a daughter always remains with her mother, regardless of her age, it is apparent from Rambam’s ruling that a father cannot deny her support if she does not wish to live with him. However, Rambam is silent regarding a case in which a father is denied visitation rights with his daughter. Is the father’s responsibility to support his daughter contingent on his ability to have a relationship with her?",
+ "Maharival discusses a case in which a mother desires to move to another city, thereby depriving the father of visitation privileges. He rules that the daughter may nonetheless remain with her mother, even if her best interests seem to indicate otherwise. In contrast, R. Shmuel de Medina (Maharashdam) argues, among other reasons, that if the daughter’s best interests dictate that she remain with her father, she must remain with him; if she remains with her mother, even if this is in the daughter’s best interest, the father is exempt from child support because his daughter is not accessible to him.",
+ "In effect, whereas according to Rambam, the paternal obligation of maintenance is contingent upon placement of the child, for Maharashdam, the support duty is dependent upon the ability to exercise visitation privileges. Most authorities – including R. S. Yisraeli, R. E. Waldenburg, R. O. Yosef, and R. S. Daichovsky – concur with Maharashdam’s view and maintain that a father’s preclusion from visitation of his daughter exempts him from maintenance.",
+ "A number of rationales have been suggested for this position. For example, the obligation of tzedakah, the basis for the maintenance duty, does not apply if the recipient will be spiritually harmed. Since the father is responsible for teaching his children Torah, their denial of access entails a spiritual detriment, and he is therefore entitled to refrain from furnishing material support. Moreover, the father’s obligation to give tzedaka to his son is based on the principle of “karov karov kodem,” that one’s closest relatives should be given priority in receiving tzedaka. If the son is estranged from his father, he cannot be labeled a “karov” and therefore loses his right to support.",
+ "Other authorities, however, maintain that the issue of child support should be addressed on its own grounds, independent of whether a child resides or visits with his father. One Israeli rabbinical court addressed a scenario in which this question was relevant. In the case at hand, a woman separated from her husband without the execution of a get and subsequently cohabitated with another man and had a daughter with him. Eventually, the woman separated from the father of the child, and the father advanced a claim in beit din demanding that a visitation schedule be established with his daughter. In the midst of proceedings, the beit din discovered that the woman was actually still married to her first husband and that the girl was therefore a mamzeret, a child born from an illicit relationship. The mother argued that since the father had revealed the illicit relationship publically and their daughter refused to visit her father, he should not be entitled to visitation rights.",
+ "Writing on behalf of the panel, R. Goldschmidt rules:",
+ "The laws regarding child placement are not laws relating to the good of the parents, but rather laws for the benefit of the children; a son or daughter is not an object subject to the rights of a father or mother. The father and mother have no rights, only duties … [as] they are obligated to raise and educate their children. When a beit din is determining the placement of a child, concerning the ties between the child and his parents, there is only one factor … the good of the child, where he will be and under what conditions. However, the rights of the father and mother do not exist at all …
When dealing with visitations of the plaintiff with his child, we are not adjudicating an issue of his rights or the rights of the defendant … There is only a discussion of the welfare of the child.",
+ "Many years later, addressing a child custody case under discussion in the Israeli Supreme Court, R. Yosef Kapah addressed the above decision:",
+ "It is difficult for me to agree completely with this ruling [that parental rights do not exist at all]. It is clear that parents are not inanimate objects. Even parents are composed of body, soul and emotions … Parents have a right to seek emotional satisfaction, seeing their children grown and develop properly and succeed in their studies …",
+ "Clearly, Halakhah grants parental right and privileges vis-à-vis one’s children when it comes to monetary matters. Thus, for example, if a boy finds an object, it belongs to his father as long as the child is still dependent on him, even if he is older than the mandatory age of support. Some authorities further maintain that a son’s earnings equally belong to his father as long as his father is supporting him. R. Goldschmidt does not deny that there are certain halakhic-legal parental rights in the realm of Hoshen Mishpat (monetary law); he simply argues that the parents have no rights in the context of child placement. In that context, a child is not related to as an object belonging to the parent. As R. Ben Tzion Uziel writes:",
+ "Neither sons nor daughters of a person are his acquisitions, like his possession of his monetary assets or animals … They are the inheritance of Hashem … to raise and educate them in Torah, commandments, and the way of life.",
+ "Since only parental duties are relevant in this context, R. Goldschmidt contends that in resolving visitation issues, a beit din must establish whether a parent can fulfill those duties by being accessible to his child on a periodic basis. Parental feelings and the need to develop a bond with one’s offspring cannot be ignored, but the child’s welfare is given priority. R. Yitzhak Herzog similarly wrote that the beit din should not be concerned with “compassion for the parents … but rather the welfare of the daughters …”",
+ "R. Kapah’s argument that visitation and placement should be contingent upon a father’s rights has been rejected by many earlier legists. Maharashdam, for example, explicitly acknowledges a father’s monetary rights vis-à-vis his children, but concludes that placement is to be resolved based on the child’s best interests.",
+ "The panel in the case regarding which R. Goldschmidt wrote determined that it was in the daughter’s best interest to deny the father visitation privileges. The child support obligation is completely unrelated to visitation (or, for that matter, placement), and the panel therefore obligated the father to continue supporting his daughter (as that obligation is not affected by whether or not the child is a mamzer). Although the particular case involved a daughter, R. Goldschmidt argues that the same would apply to a son; if the son’s best interests were to be undermined by visitation, he would be exempt from visiting his father, but the father would remain responsible to provide his son with support. In short, whereas, the placement of the child is based upon which parent will promote the child’s best interests, the mandating of child support is grounded in the fact that a particular man is the father of a child.",
+ "In a recent decision of the Haifa Regional Rabbinical Court, it was noted that the common practice on the rabbinical courts under Israel’s Chief Rabbinate is to follow R. Goldschmidt’s approach.",
+ "5. The Validity and Relevance of the Divorce Agreement",
+ "Prior to any divorce, the parties negotiate and settle all issue of conflict regarding how to divide up financial assets and address the placement of their children. A secular divorce agreement thus reflects the compromises and vested interests of each party, rather than the halakhot of family law. A number of decisors have noted that a divorce agreement reflects minhag ha-soherim (commercial practice); as such, no symbolic act of undertaking an obligation (kinyan) is necessary. Once there has been such an exchange of mutual obligations, there is no longer room for invoking an umdana (the expectations of a given party), as the provisions of the agreement govern any further discussion.",
+ "However, in our case, we are faced with an umdana gedolah or an umdana de-mukhah (circumstantial evidence) that at the time of signing off on the divorce agreement the father never anticipated that he would support his children until the age of eighteen without having visitation privileges. In such a case, despite the fact that the agreement fails to stipulate that support is contingent upon visitation rights, R. Elyashiv and R. Sherman assume that the father’s expectation was that the two matters were interdependent. Hence, should the children decline to visit him, he ought to be exempt from continuing to maintain them.",
+ "Rema, Taz, and the late Israeli Chief Rabbi R. Avraham Shapiro disagree with this conclusion, insisting that the terms of the divorce agreement are probative regarding the parties’ expectations; one cannot infer any expectation beyond what is recorded in the actual agreement. Consequently, the children’s abstention from visitation with their father will not result in exempting their father from maintenance.",
+ "Accordingly, the question of whether the father’s child support duty is contingent upon visitation privileges in our case appears to be dependent upon whether we follow the written word of the divorce agreement or the father’s expectation. If the latter is determinant, the Tove’a should be exempt from maintenance; if we adhere to the former, he should be obligated to continue to pay child support.",
+ "A third perspective would argue that the beit din is empowered to seek the situation that suits the best interests of the child regardless of the provisions of the divorce agreement. As we saw above, batei din have consistently emphasized that child placement and visitation entail the fulfillment of a parental duty to raise a child in a proper environment, rather than an entitlement to have a child live or visit a parent. Thus, Mabit argues that if a mother initially agreed that her daughter should remain with her father and then changed her mind, the child should be returned to her mother if that is in her best interest. The initial agreement is not construed as relinquishing the mother’s right to custody. In the words of one beit din, children are not “merchandise, so that agreements are executed regarding them;” placement and visitation arrangements that will undermine their best interests are therefore invalid. Thus:",
+ "In ruling regarding child placement … our first and primary concern is the child’s welfare … Parents are prohibited from compromising regarding the body or soul of their child, and any agreements do not obligate us. Any time a concerned party will appear in beit din and will prove that the child’s welfare is best served with him, beit din will not hesitate to rule that the terms of the agreement dealing with child placement are inapplicable and void, and will resolve the matter according to the evidence submitted during the proceedings, without factoring into consideration the agreement executed by the parents.",
+ "Other batei din have also endorsed the idea that the beit din may modify divorce agreements in order to promote the child’s best interests.",
+ "Based on the cumulative evidence submitted to this panel, including speaking to the children privately (with the written permission of their parents) and a review of the therapist’s conclusions, we find that the children are estranged from their father. Even if one would construe the divorce agreement or assess the father’s expectation that child support would not be forthcoming if his children do not visit him, we find that the children’s best interests dictate that they may choose not to spend time with their father. We hereby direct the Tove’a to continue to furnish child support until the children respectively reach the age of eighteen.",
+ "If circumstances change in the future, this panel will revisit this matter.",
+ "Decision",
+ "1. Pursuant to the terms of the divorce agreement, the Tove’a is hereby obligated to pay child support to his children until they reach the age of 18.",
+ "2. The children may choose not to visit their father.",
+ "3. Any request for modification of this award by the arbitration panel shall be submitted to this panel."
+ ]
+ },
+ "Chapter 5; Decisions in Hoshen Mishpat": {
+ "a) Tenure Rights and Severance Pay": [
+ "A. Tenure Rights and Severance Pay
Avraham Cohen v. Yeshiva Har Tzvi",
+ "In 1995, Yeshiva Har Tzvi hired R. Avraham Cohen as a third grade rebbe commencing with the school year of 1995–1996. He continued to serve in that capacity until the non-renewal of his contract at the end of the school year 2008–2009. Prior to his dismissal, the Tove’a stole funds from the yeshiva. Within two months of his non-renewal, R. Cohen summoned the yeshiva to beit din. In September 2009, this panel was convened to hear this case and a psak din was issued in January 2010.",
+ "Tove’a’s Claims",
+ "The Tove’a admits that he stole funds from the yeshiva but argues that the non-renewal of his contract is a violation of both Halakhah and minhag (common practice). Pursuant to the rulings of R. Feinstein, R. Shlomo Z. Auerbach, and R. Y. Weiss, the Tove’a claims that a teacher’s contract for one year must be renewed, and if the yeshiva feels that there are grounds for non-renewal of the contract, the yeshiva must allow a beit din to serve as the final arbiter regarding the matter. Moreover, he argues, cases of dismissal that received rabbinical sanction are limited to employers who were acting in an individual capacity, rather than as communal representatives. Consequently, as R. Feinstein notes, the Tove’a is entitled to receive his salary from the period of the non-renewal of his contract until the beit din’s ruling that the termination was justified.",
+ "The Tove’a argues that even if one were to contend that the common practice is not to renew teachers’ contracts, Halakhah would not validate this minhag, even though it relates to monetary affairs (dinei mamonot), because it is neither endorsed by a rabbinic authority nor based upon an ordinance approved by the leaders of the community. Moreover, whereas the yeshiva argues that a teacher can be requested to leave “at-will,” according to R. Feinstein, the halakhah that one cannot fail to renew a labor contract or terminate without cause cannot be overridden by a minhag that provides otherwise.",
+ "Third, the Tove’a argues that the appointment of a melamed (teacher) is a sacred appointment (minui shel kedushah), and he therefore cannot be dismissed except in cases of “peshi’a” (gross negligence).",
+ "Although the Tove’a admits that his employment agreement explicitly stipulates that he is not entitled to any post-employment benefits, including severance pay, he argues that he originally agreed to waive these benefits because he was financially comfortable at the time. Since the Tove’a lost the majority of his assets in the 2008 market meltdown, however, he is now in dire need of these resources. Furthermore, since the yeshiva provided severance pay for six dismissed rebbes in the past, a minhag has been established and ought to be grounds for awarding severance, overriding the provisions of the employment agreement. Finally, the Tove’a argues that the yeshiva should recognize his unstinting dedication and therefore provide him with severance benefits. His act of thievery was unrelated to his educational contributions to the yeshiva and ought not nullify his right to receive severance pay.",
+ "Nitva’s Counterclaims",
+ "The Nitva argues that the Tove’a was an “at-will employee,” and as such was not contracted for life. Towards the end of every school year, the Tove’a, like all other faculty members of the yeshiva, received a contract for the forthcoming school year. In total, the yeshiva and Tove’a signed ten employment contracts. Consequently, at the end of any given year, the Tove’a had the right to decide whether to renew his contract for the upcoming year. When the facts indicated that the Tove’a stole funds from the yeshiva during the 2008–2009 school year, the Nitva notified the Tove’a in a timely fashion that the yeshiva would decline to offer him a contract for the 2009–2010 school year.",
+ "Finally, the Nitva argues that since the Tove’a only became aware that other teachers had received severance packages after the yeshiva’s notification of dismissal and given the circumstances surrounding his dismissal, the Nitva should not be entitled to such benefits. Moreover, the employment agreement precludes the awarding of severance, and as such the contract should override the minhag of the few instances in which severance was provided to others. Finally, the Tove’a’s present economic situation should not affect the question of whether he is entitled to a severance package.",
+ "Discussion",
+ "The beit din must address two questions. First, is the Tove’a’s employment considered a tenured position, in which case termination or non-renewal of a contract requires prior beit din authorization? Second, is the Tove’a entitled to severance benefits?",
+ "1. The Tenured Position",
+ "We will begin by addressing the question of tenure and the role of beit din in cases of employment termination or non-renewal of a contract. According to R. Feinstein, a teacher – like any other type of employee – retains his position for life, subject only to removal for cause. This ruling applies even when the yeshiva and teacher agreed to a fixed term of employment in the contract. In effect, a term contract conveys the notion that the employee is not “an indentured servant”; it is not a device empowering an employer to dismiss his worker at the expiration of the term.",
+ "R. Feinstein suggests that if the agreement provides that a teacher’s contract may not be renewed even in the absence of just cause, the provision may be invalid, as such action would be contrary to the halakhic rule that a teacher may only be dismissed with good reason. Moreover, prior to dismissal of an employee, a beit din must determine that there are grounds for termination or non-renewal of a contract. Until such beit din determination, R. Feinstein contends that the employer is obligated to pay the worker’s salary.",
+ "Notwithstanding the view of R. Feinstein, the consensus of most decisors recognizes a yeshiva’s right to refuse to offer a new contract, without any requisite need for a beit din’s approval. In fact, it is difficult to find statements in support of R. Feinstein’s position in the Talmud, codes, and teshuvot literature. Rema explicitly states:",
+ "If someone has a maidservant and he is suspicious that she will steal from him, he may dismiss her prior to the expiration date of her employment. ",
+ "A fortiori, in our scenario, in which the Tove’a already had stolen from the Nitva, the Nitva was authorized to refuse to renew a contract with the Tove’a without the prior approval of beit din.",
+ "There is certainly precedent for rabbinically sanctioned dismissal of teachers by communal institution without recourse to a beit din judgment. In legitimating an employer’s right to terminate a teacher for inappropriate behavior, R. Ya’akov Emden invokes the rule of “avid inish dina le-nafshei,” taking the Halakhah into one’s own hands. Under certain circumstances, to prevent potential financial damage, an individual is empowered with the authority of a beit din to judge his case for himself. In R. Emden’s view, this empowerment equally extends to an employer’s right to dismiss a teacher in cases of negligence. A similar conclusion is arrived at by Hazon Ish concerning the right to demand that an employee leave his work upon the expiration date of the contract.",
+ "The Tove’a further alludes to the rulings of R. Auerbach and R. Weiss, which mandate recourse to a beit din prior to termination, but those rulings are limited to cases involving a teacher’s right to strike and conflicts between a principal and teacher regarding differing educational philosophies. Hence, these rulings are inapplicable to our situation of alleged malfeasance.",
+ "Halakhah recognizes the ability of parties to enter into contractual agreements, including labor contracts. At the expiration of the term of a contract, both parties have free rein regarding whether to renew.",
+ "The question of whether employment generates tenure rights for the employee is governed by minhag ha-medinah, the custom of the region. Thus, absent a provision in the contract to the contrary, if a particular community construes a labor contract as generating employee tenure rights, then the employee cannot be terminated. On the other hand, absent a provision in the contract to the contrary, if another community views him as “an at-will employee,” then the employer can terminate him at-will or after the expiration date of the contract. The customary practice of a particular community thus will determine whether an employee enjoys tenure or not.",
+ "To have binding force, the minhag must be clear, widespread in the particular locale, and have been followed at least three times. Although there is a long-standing halakhic dispute regarding whether a monetary custom practiced by the community on their own has any authority or whether a custom requires endorsement by rabbinical authority or approval of communal leaders, Shulhan Arukh, Rema, and others have either explicitly or implicitly ruled that a monetary custom has independent status, even if this result in extraction of money from muhzakim (those in present possession of the assets).",
+ "The common practice of the Nitva and the other local yeshivas is to offer one-year renewable contracts to its teachers. This minhag is valid, even if unaccompanied by rabbinic or communal sanction, either because the Tove’a is viewed as an at-will employee or pursuant to the normative position reflected in the rulings of Shulhan Arukh and Rema. In effect, today, a melamed is appointed pursuant to the provisions of minhag ha-medinah, similar to any other employee, rather than being viewed as a “minui shel kedushah” (a sacred appointment).",
+ "Upon review of the evidence presented by the parties and the applicable Halakhah, the beit din accepts the Nitva’s position that the Tove’a’s employment was term employment, as recorded in writing. As such, the Nitva was empowered to dismiss the Tove’a without receiving initial approval from a beit din.",
+ "2. Entitlement to Severance Pay",
+ "We will now turn our attention to the question of whether the Tove’a is entitled to a severance package.",
+ "As is the customary practice in contemporary batei din, both parties to this hearing signed an arbitration agreement (shtar borerut) empowering this panel to resolve their dispute. One of the terms of the agreement is that the beit din has the authority to resolve the matter according to din (Halakhah) or through pesharah kerovah le-din (court-ordered settlement in accordance with Halakhah). Our discussion of the awarding of severance will be addressed on these two functionally and conceptually different planes, in addition to the plane of lifnim meshurat ha-din, a sub-category of pesharah that entails going beyond the demands of Halakhah.",
+ "The right of an employee to receive compensation upon dismissal is not mentioned in the Torah or Talmud, nor in the overwhelming majority of post-Talmudic sources. Sefer ha-Hinukh finds moral basis for such remuneration based on analogy to the laws of an eved ivri, a Jew bereft of funds and in need of gainful employment who is indentured to work for six years. Just as an eved ivri receives a parting, albeit gratuitous gift – “ha’anakah” – from his employer upon the completion of six years, a dismissed laborer should receive a severance package:",
+ "We shall show compassion to someone who has worked for us and give him from assets indicative of our kindness above and beyond his salary.",
+ "Following in the footsteps of Sefer ha-Hinukh, numerous Poskim endorse the view that the giving of severance is a halakhic-moral obligation rather than a halakhic-legal duty, and as such is unenforceable by a beit din. The grounds for this award are either understood as compensation for work beyond the call of duty or as a gift given out of kindness. According to the view that severance is a halakhic-moral duty, this panel would be unable to coerce the Nitva to pay severance to the Tove’a according to the strict din.",
+ "Israeli rabbinical courts have preferred to base the duty to pay severance upon the existence of minhag to do so. Accordingly, whether an employee would be entitled to severance pay would depend on whether this is the practice in his community, his profession, and/or in his place of employment. As we explained above, for a custom to be binding upon the employer, it must be clear that the compensation awarded to the worker was severance and that it is common practice. Even though the Tove’a only became aware of the yeshiva’s custom to award severance after the yeshiva’s notification of non-renewal of his contract, the halakhic power of the minhag, independent of the parties��� knowledge of its existence, establishes the employer duty’s to award compensation and the employee’s right to receive it.",
+ "However, in our scenario, the parties originally agreed that severance would not be awarded upon termination or non-renewal of the contract. In monetary matters, parties are permitted to design their own business relationship, provided that the arrangement complies with a proper form (for example, involving a kinyan) and is not a violation of any prohibitions, such as theft or the prohibition of taking interest. Consequently, the parties’ agreement is valid and binding, even if it is in conflict with a minhag that mandates the award. Thus, the fact that the yeshiva and other local schools have awarded severance pay in other instances is irrelevant, and according to the din, the Tove’a is not entitled to severance pay.",
+ "One of the primary objectives of compromise is to promote shalom, peace between litigious parties. The need to foster compromise for the sake of peace equally applies in communal matters, such as our case, and in particular regarding labor relations. Nevertheless, Halakhah proscribes implementing a compromise for purposes of promoting peace if there is no justification for a Tove’a’s claim. As this is the case in the situation at hand, pesharah kerovah la-din does not mandate that the Nitva’s funds be transferred to the Tove’a, even for the sake of fostering peace. These assets belong to the Nitva and therefore rightfully ought to remain in his possession.",
+ "Does the Nitva have any obligation to act in this circumstance lifnim me-shurat ha-din, more generously than the din and pesharah would mandate? According to many decisors, a beit din can compel an individual to act more generously than the din requires, even if this would entail financial expense on his part. The obligation upon a beit din to resolve a case based upon the principle of lifnim me-shurat ha-din applies equally when one of the parties is a communal institution. R. Y. Weiss discusses a case in which an Argentinean Jewish butcher owed a tremendous sum of money to the local Jewish community. Was the community authorized to issue injunctive relief in the form of seizing some of the butcher’s machinery, such as a refrigerator, electric meat carver, and scales, for purposes of satisfying the outstanding debt? Although the community was impoverished, R. Weiss concluded that they should act lifnim me-shurat ha-din, invoking the concept of “the community is not poor.” This principle applies even if the communal institution in question will incur a financial loss.",
+ "Other authorities have argued that a public institution must conduct itself lifnim me-shurat ha-din due to its status as an adam hashuv, a distinguished individual. In the words of one rabbinical court:",
+ "[A communal institution] has a greater duty to appease complaints and arguments … and it is duty bound to deflect criticism from its institution …",
+ "In effect, invoking considerations of lifnim me-shurat ha-din upon a communal institution, based either on the concept of “the community is not poor” or its status as an adam hashuv, would create a new line of liability, leading to a result different from what would have occurred under the rubric of din.",
+ "The question remains, however, if there are grounds for invoking lifnim me-shurat ha-din in the present context of awarding severance pay in general and the economic situation of the Tove’a in particular. The financial situation of either of the parties is entirely irrelevant in terms of din and pesharah; in fact, we are explicitly and repeatedly exhorted to ignore such factors in resolving a dispute. On the level of lifnim me-shurat ha-din, however, the Tove’a’s financial situation may be taken into account. For example, R. Hayyim ben Baer Rapaport (nineteenth century Russia) ordered a community to pay compensation to a dismissed shohet (ritual slaughterer) due to the fact that he was destitute with dependents. A thirteenth century teshuvah states:",
+ "Since Reuven is economically limited, it is proper for the community to act lifnim me-shurat ha-din. ",
+ "At first glance, it would seem plausible to argue that the Nitva in this case should be viewed as a communal institution, which is halakhically considered to have “deep pockets” and should therefore be compelled to dispense the severance package to the Tove’a, especially given his financial state. However, in considering resolution according to lifnim me-shurat ha-din, the beit din must take all surrounding circumstances into consideration. This panel concludes that the Tove’a’s act of thievery of the Nitva’s assets precludes the issuance of such a mandate.",
+ "Decision",
+ "1. The Nitva, as a communal educational institution, had the authority to terminate a teacher’s employment at the expiration of the term of the contract without first receiving a definitive ruling of a beit din that there are halakhically acceptable grounds for dismissal. Hence, we may choose to refrain from adjudicating whether the grounds for dismissal were justifiable or not.",
+ "2. Nevertheless, we have decided to address the merits of the yeshiva’s failure to renew his contract. Upon review of the evidence presented by the parties, the beit din recognizes the talents of R. Cohen as an educator, which are attested to by the Yeshiva Har Tzvi administration. His educational credentials and pedagogical achievements notwithstanding, however, a teacher must be simultaneously aware of the Torah values espoused by the yeshiva in which he teaches, as well as the values promoted in the homes of his students. The Tove’a’s improper behavior relating to theft of the yeshiva’s assets undermines the yeshiva’s mission and subverts his ability to serve as a halakhic-ethical model for the students to emulate.",
+ "Given the facts of the case, we find that the Tove’a’s removal by the Nitva due to his malfeasance was justifiable. Consequently, there are neither grounds for reinstatement, nor for reimbursement for “lost wages” accrued between his termination date and convening this beit din hearing. Furthermore, there is no basis for the awarding of severance.",
+ "3. In summary, all of the claims of the Tove’a are hereby dismissed.",
+ "The obligations set forth herein shall be enforceable in any court of competent jurisdiction, in accordance with the rules and procedures of the arbitration agreement.",
+ "Final Thoughts",
+ "Some contemporary dayanim refrain from awarding severance pay to any employee, absent an explicit provision in the labor agreement, as such an entitlement is not mentioned in the Talmud or codes. When severance pay is awarded, contemporary decisors invoke at least two grounds for doing so. Nevertheless, I am aware of a number of dayanim who have awarded severance pay to teachers even when the minhag of the particular yeshiva or community was not to do so. Such an award is in contravention of Halakhah, which dictates that such an award is forthcoming only as a form of “ha’anakah” based on the common practice or as a form of lifnim me-shurat ha-din.",
+ "Should severance be awarded, the amount is based either on the practice of the particular economic sector or up to the beit din’s discretion. The Israeli Rabbinical Courts have adopted a formula of 8.333% of the employee’s salary per year of employment (hodesh le-shanah). In the absence of a prevailing practice in a particular economic sector, in the institution wherein the individual is employed, or in the local community, dayanim in the New York metropolitan area who endorse the propriety of rendering such an award will also grant severance based upon the formula of hodesh le-shanah."
+ ],
+ "b) The Status of a Promissory Note": [
+ "B. The Status of a Promissory Note
Ya’akov Silverstein v. Shimon Cohen",
+ "On or about February 22, 2006, Shimon Cohen issued to Ya’akov Silverman (Tove’a) a promissory note dated May 22, 2008 in the principal amount of $1,000,000. The maturity date was May 22, 2009. As of May 19, 2010, the business loan remained unpaid. The note provides for interest at the rate of 10% per annum (prior to default) and 12% per annum and liquidated damages of $75,000 after default.",
+ "Finally, for a half year, the Nitva was employed by the Tove’a and to date he is owed $25,000 salary.",
+ "Both the Tove’a and the Nitva are observant Jews. There is no clause in the original agreement addressing whether Halakhah or secular law should resolve any differences between the parties or ambiguities in the note’s provisions. The Tove’a has requested that the decision be grounded in secular law, while the Nitva has requested that Halakhah serve as the basis for our decision.",
+ "Tove’a’s Claims",
+ "The Tove’a claims that he is entitled to the principal amount of the note, as well as the accrued interest of 10% per annum (prior to default) and 12% per annum after default. Since the note was not repaid on its maturity date, the note has been in default since its maturity date. The Tove’a argues that he was entitled to demand interest (ribbit) on the principal because the funds were originally advanced as investment money, rather than a loan.",
+ "In an e-mail sent by the Nitva to the Tove’a, dated December 28, 2010, the Nitva writes that he hopes soon to “honor my commitment” to the Tove’a and reiterates that “I am sorry I have not been unable to pay you back yet.” On the basis of this communication and the fact that he signed the written promissory note, the Tove’a argues that the Nitva acknowledges the above commitments, and that to date he has been derelict in his duty of repayment.",
+ "Based upon the terms of the written promissory note and applicable civil law governing the oral promise, the Tove’a argues that he is entitled to payment of the principal and accrued interest. Moreover, given the default on the loan, the Tove’a is advancing a claim for liquidated damages (compensation for breach of the agreement) due to the loss of interest income.",
+ "Nitva’s Counterclaims",
+ "The Nitva argues that a promissory note is only a promise, and according to Halakhah, only obligations are enforceable. Therefore, a beit din cannot obligate him to repay his loan. Moreover, the interest accruals are a violation of the interdict against taking ribbit (interest). Although the Tove’a admits that he voluntarily agreed to pay the interest, he argues that the Tove’a should be penalized for lending money accompanied by interest payments.",
+ "Furthermore, the Nitva argues that a default interest provision in the form of liquidated damages should be unenforceable under the Halakhah’s rules of obligation. For an obligation to be halakhically binding, there must be firm resolve to finalize an agreement (gemirat da’at). For example, if Reuven agrees to rent a field for the price of a portion of the crop he cultivates and he obligates himself to pay 1,000 zuz, an unreasonable amount, should the land remain fallow, no liability for this amount would ensue. Because he never expected to pay this amount, the agreement would be labeled an asmakhta, the absence of firm resolve, and his liability would be limited to the field’s potential productivity. The Nitva argues that liquidated damages are uncertain and cannot be determined by any known rule, and there therefore cannot be gemirat da’at in any such agreement. Accordingly, the Nitva should be exempt from paying the liquidated damages.",
+ "Regarding the outstanding salary owed to him by the Tove’a, the Nitva is requesting his outstanding salary as well as interest due to the economic loss of the use of the funds.",
+ "Discussion",
+ "1. The Application of Secular Law in a Beit Din Proceeding",
+ "The first issue to be resolved is whether this matter will be adjudicated based upon Halakhah or secular law.",
+ "Seemingly, the proposal to resolve this matter pursuant to secular law is fraught with perilous ramifications. To suggest this posture seems to ignore the prohibition against recourse to arka’ot shel akum, litigating in non-Jewish courts. As R. J. David Bleich notes:",
+ "Recourse to a gentile forum is tantamount to a declaration by the litigant that he is amenable to allowing an alien code of law to supersede the law of the Torah … The litigant appears before the gentile courts because he accepts their authority, and if they administer the law of Moses he accepts that law not because he regards it as binding upon him by virtue of having been commanded by God, but because it has been endorsed and adopted by gentiles …
The prohibition … is not limited to bringing a suit before a gentile court … The prohibition includes any judicial proceeding that negates the Law of Moses. A judicial body composed entirely of judges who happen to be members of the Jewish community but who administer an alien system of law is undoubtedly to be classified as within the halakhic category of arka’ot shel akum for the simple reason that the laws such a court administers are not those of the Torah.
Since … acquiescence by both litigants does not serve to mitigate the prohibition … and since the prohibition applies even when the judges themselves are Jews, it follows that the parties are not entitled to accept the authority of a rabbinic court … but stipulate that the beit din shall apply the law of a secular state. Accordingly, if two parties … enter into a contract and stipulate that any dispute with regard to fulfillment of the terms of the contract is to be resolved by a rabbinic court in accordance with, for example, the laws of the State of Delaware, the stipulation is void by virtue of being inconsistent with biblical law (matneh al mah she-katuv ba-Torah).",
+ "As noted above, individuals are empowered to make agreements contrary to Halakhah provided that these agreements do not violate ritual law. An agreement to adjudicate in a beit din but according to secular law would thus seem to be invalid. Indeed, such arrangements have met with trenchant criticism from the Aharonim, and a number of contemporary dayanim.",
+ "Nevertheless, there is a coherent and persuasive halakhic tradition, commencing with Rashba, that supports the acceptance of this type of arrangement. According to these authorities, two individuals who enter into an agreement to resolve their financial matters according to civil law are merely waiving the privilege granted by the halakhic legal system in order to avail themselves of some benefit from the secular system in one particular situation. Since they are not indicating wholesale affirmation of the secular legal system, the agreement is binding.",
+ "Thus, there are grounds for the Tove’a to request that he benefit from the norms of secular law that relate to his claims provided that course of action is agreed to by the opposing party (accompanied by the execution of a kinyan). However, since that the Nitva insists that this matter be resolved according to the halakhot of Hoshen Mishpat, this matter will be adjudicated accordingly.",
+ "2. The Promissory Note",
+ "a. The Binding Nature of the Note",
+ "A promissory note, sometimes referred to as a “note payable,” is a contract in which one party (the “maker” or “issuer”) makes an unconditional promise in writing to pay a sum of money to the other party (the “payee”), either at a fixed or determinable future time or on demand of the payee, under specific terms.",
+ "The terms of a note usually include the principal amount, the interest rate if any, the parties, the date, the terms of repayment (which may include interest), and the maturity date. The provisions of the submitted promissory notes in this case include all of these elements.",
+ "As the Nitva notes, a promise is not enforceable in beit din, as it lacks the two critical components of a halakhic obligation – kinyan (a symbolic act of acquisition) and gemirat da’at (concrete articulation of the parties’ resolve to undertake the obligation). According to the halakhot of obligations (hithayvut), in order for a loan agreement (or any agreement) to be legally effective, the payee must undertake the obligation to repay the loan by declaring, for example, “I obligate to pay Reuven such and such,” “I undertake to pay Reuven such and such,” or “I admit that I am obligated to Reuven such and such.” Such language is meshabed nafshei – it “enslaves” the payee in the present by transforming him into a debtor. Since a promise entails executing an obligation in the future (for example, a promise to sell goods) or to transfer title of something that is not yet in existence (davar she-lo ba la-olam), it is legally unenforceable.",
+ "Despite the lack of a legal obligation to fulfill one’s promise, however, there remains a moral obligation to do so. Accordingly, Shulhan Arukh rules:",
+ "When one conducts and concludes commercial transactions using words only [the negotiation and agreement not being completed by a formal act of acquisition], that person should stand by his word, even though none of the purchase price has been taken, nor a buyer’s mark made on the goods … Whoever withdraws from this type of transaction, whether buyer or seller, is deemed a faithless person.",
+ "Rema adds:",
+ "A person should stand by his word, even though no act of acquisition has been performed, only mere words have passed between the parties …",
+ "If a seller articulates an oral commitment to sell realty or other property to a prospective buyer, either party may technically withdraw from consummating the sale, as no kinyan has been executed between them; since enforceability depends upon a kinyan, a promise cannot be enforced by legal action. Nevertheless, should either party renege on the agreement, he is stigmatized as a mehusar amana (lacking faith). A promise is binding because of the halakhic need to keep one’s word, even if the beit din cannot enforce it. As I have articulated elsewhere:",
+ "Halakhah views promise-keeping as aligning oneself with the fulfillment of a religious norm rather than compliance with a norm of natural law, institutional moral norm, or moral norm established by social convention.",
+ "In our case, the promissory note states, “I promise to pay.” Whereas American law would construe such a note as binding, Halakhah would seem to disregard the possibility of enforcing such a promise, as it creates no obligation in the present but only one in the future. However, the fact that the money was transferred to the payee at the time that the promise was made transforms the payee into a debtor at the time the note was executed. By dint of the exchange of money, the promise to pay is transformed into an obligation to pay.",
+ "Moreover, although this agreement did not involve a halakhic kinyan, a number of authorities have validated contracts (such as real estate, surety, and divorce agreements) based upon kinyan situmta, transferring an object according to commercial practice. Accordingly, a promissory note should be valid provided that it was drafted properly and enforceable according to secular law.",
+ "As such, the written promissory note in our case creates an obligation upon the payee to repay the principal to the issuer either due to the money transfer at the time of making the promise or due to the provisions of secular law.",
+ "b. Payment of Interest during the Term of the Loan",
+ "The prohibition against taking interest, ribbit, applies even when it was a provision of the original agreement (ribbit ketzutzah). Any interest provision that is structured to increase with time and payable prior to the maturity date of a note is a form of ribbit, and therefore cannot be collected, regardless of whether the borrower is wealthy or not or if he is willing to pay the ribbit.",
+ "Although the Tove’a claims that he is entitled to collect interest on the principal due to the fact that this sum was originally advanced as investment money rather than a loan, Halakhah mandates that once these monies were transformed from an investment to a loan, the parties are considered a lender and a borrower, and the halakhot of ribbit are therefore applicable. Accordingly, the Tove’a is not entitled to receive interest on his investment.",
+ "c. The Validity of a Promissory Note with Ribbit Provisions",
+ "Does the incorporation of ribbit provisions in the original agreement nullify the note entirely, thus denying the lender his right to collect the principal? In other words, does the halakhic illegality of one provision nullify the other provisions of the agreement, which are acceptable on their own?",
+ "The Talmud addresses this question directly:",
+ "If a shtar (legal document) provides for ribbit, we penalize him and he cannot collect either principal or interest; this is the position of R. Meir. And the Sages state: He collects the principal, but not the interest.",
+ "According to the Sages, the stipulation of ribbit does not nullify the agreement, and the principal is therefore collectible. While R. Meir essentially concurs, he maintains that we penalize the lender for executing a document with interest provisions, and therefore deny him even the principal. According to the rabbinic consensus, the view of the Sages is adopted by Halakhah. Thus, as long as the document clearly differentiates between the principal and the interest, the lender can collect the principal. Therefore, in our case, the incorporation of ribbit provisions in the note does not nullify the validity of the note, and the principal is collectible.",
+ "If the distinction between the principal and interest in the note is arguably unclear, the lender could collect the principal based on the borrower’s acknowledgment of the debt. This method would be effective even according to R. Meir, who would ordinarily penalize the lender for the ribbit provision. Accordingly, in our case, the Tove’a may collect based upon the Nitva’s admission that he owes the money; there is no need to rely upon the note itself.",
+ "d. Liquidated Damages Clause",
+ "As noted above, Halakhah dictates that agreements are binding as long as the parties voluntarily consent to their terms and there is a firm resolve (gemirat da’at) to execute and comply with the terms of the agreement. Should a party have no expectation to pay the monies upon default, that part of the agreement is termed an “asmakhta,” the absence of firm resolve to comply with the clause. For example, if the promisor obligates himself to pay more than the actual loss caused by him, the amount is considered a guzma, an exorbitant sum. According to many authorities, the promisor is undertaking to pay a penalty that he has no real intention to ever remit, and as such, the asmakhta is unenforceable in beit din.",
+ "In our case, is the provision for liquidated damages in the sum of $75,000 an example of asmakhta? One might argue that the default on the loan caused only indirect damages (gerama) to the lender, such as loss of interest income and profits from other business opportunities. Perhaps, then, the demand for such a sum is not justified and should be deemed an asmakhta. It may be further argued that since the agreement to pay for liquidated damages was not accompanied by a classical kinyan and was not written in the proper “language of obligation,” nor was it executed in the presence of a beit din or any witnesses, the Nitva’s claim that he never intended to pay the liquidated damages is well-founded. Nevertheless, the Nitva is liable to pay it for a number of reasons. First, as long as the amount of liquidated damages is reasonable, as in our case, an agreement to pay for indirect damages is binding. Second, Halakhah recognizes the execution of a promissory note by virtue of situmta which imparts validity to contractual agreements recognized as minhag ha-soherim (commercial practice). By dint of situmta, the problem of asmakhta is avoided and the Nitva cannot claim that he never intended to pay the liquidated damages. Moreover, even if the amount of damages in this case were to be deemed unreasonable or even exorbitant, the provision is binding due to the fact that commercial practice would uphold such a clause and mandate payment.",
+ "Finally, in the view of R. Aharon ben Yosef ha-Levi (Ra’ah), the agreement need not explicitly stipulate that consequential damages are recoverable, as the lender relied on the promisor’s commitment to repay the loan and pay him for damages. Because of the benefit to the borrower generated by the induced reliance that established a surety relationship between the two parties, he undertakes an obligation, and payment is therefore enforceable in case of breach. In this sense, the promisor is similar to an arev (guarantor), who assumes liability because the creditor parted with monies on the strength of his assurance. The promisor is similarly liable due to the fact that the promisee relied upon him to remit payment for damages.",
+ "3. The Recovery of Economic Loss of Funds",
+ "The Nitva claims that in addition to reimbursement for unpaid salary, he is entitled to payment for economic loss of funds. This issue will be addressed on two planes – that of din (strict law) and pesharah kerovah la-din (court ordered settlement in accordance with Halakhah) – as stipulated in the arbitration agreement.",
+ "According to some authorities, in a non-loan transaction – such as cases of unpaid salary, unpaid bailment, or unpaid rent – there are grounds for mandating pre- and post-judgment interest relating to loss of the economic use of funds (in Beit Hillel’s words, “peseida de-shuka”). Accordingly, the demand that the Tove’a pay interest on the unpaid salary to the Nitva would not constitute a violation of hilkhot ribbit.",
+ "However, the majority of authorities rejects this position and argue that the payment of interest for the economic loss of funds in the context of debt grounded in non-loan transactions is not a legal obligation. In other words, pursuant to the dictates of din, a beit din cannot mandate such an award. While an individual may choose to repay economic loss of funds in such a case, such repayment is a halakhic-moral obligation (“din Shamayim,” the laws of heaven), and is unenforceable by a beit din adjudicating the matter according to din. Accordingly, this beit din is not able to mandate payment for the economic loss of funds on the basis of din.",
+ "Since, however, this beit din is empowered to resolve the dispute at hand in accordance with pesharah kerovah la-din, we may mandate that the parties comply with their halakhic-moral obligations. Such a resolution has the effect of advancing one of the primary objectives of mandated compromise – the promotion of peace between litigious parties. In fact, R. Engel concludes that in a case of compensation for economic loss of funds, there is a need to effect a pesharah.",
+ "A beit din implementing pesharah is mandated to render a decision that it deems fair and equitable under the circumstances. Applying a rate of 6% simple interest per six-month rate, we find that the Tove’a suffered an economic loss of funds in the amount of $1,500.",
+ "Decision",
+ "1. The Nitva is hereby obligated to immediately remit $1,000,000 to the Tove’a.",
+ "2. The Tove’a is hereby exempt from paying the accrued interest on that amount.",
+ "3. The Nitva is obligated to immediately remit $75,000 to the Tove’a for liquidated damages.",
+ "4. The Tove’a is hereby obligated to immediately remit $25,000 to the Nitva, representing the outstanding salary owed.",
+ "5. The Tove’a is hereby obligated to immediately remit $1,500, which represents the economic loss of the outstanding salary.",
+ "Offsetting Credits and Debits:",
+ "6. Based upon provisions 1–5 of this Decision, the Nitva is obligated to immediately remit $1,045,000 to the Tove’a."
+ ],
+ "c) Rabbinic Contracts": [
+ "C. Rabbinic Contracts
R. Yisrael Rabin v. Congregation Beth Ya’akov",
+ "The synagogue’s initial contract with R. Yisrael Rabin (Tove’a) for his services as its spiritual leader was for three years, from July 1, 2000 through June 30, 2003. Prior to the expiration of the third year, Congregation Beth Ya’akov (Nitva), a Modern Orthodox congregation, entered into negotiations for a second contract. Subsequently, a second contract was executed for three years, from July 1, 2003 through June 30, 2006. A similar contract was then negotiated and approved, with an expiration date of June 30, 2009.",
+ "Pursuant to its constitution and by-laws, all three contracts were negotiated and approved by the Nitva’s Board of Trustees. However, the decision to employ and renew the rabbi’s contract was made at congregational meetings expressly called in order to vote on this matter. During the general membership meeting’s discussion of the prospective third contract, the Nitva promised to remit a bonus of $25,000 should the Tove’a increase the synagogue membership by 10% by June 30, 2009. Although the membership increased by 10% by the agreed-upon date, the Nitva refused to remit the bonus to the Tove’a.",
+ "On April 1, 2009, the Nitva notified the Tove’a that the Congregation would not continue to employ him after June 30, 2009.",
+ "Tove’a’s Claims",
+ "The Tove’a argues that as a rabbi engaged in spiritual matters, his position has hazakah (tenure) and he therefore cannot be removed from office without just cause. Thus, once attaining his position, the High Priest in the Holy Temple could not revert to his former role as an ordinary priest, as “we ascend in matters of sanctity, but we do not descend.” A rabbi similarly cannot be removed from his position.",
+ "The Tove’a argues that this halakhic principle overrides the contract executed between the parties. Thus, once the Tove’a accepted and undertook the position as rabbi, the Congregation could only terminate him for just cause. In the wake of the Nitva’s admission that there were no grounds for his termination, the Tove’a demands that he be reinstated to his position.",
+ "Additionally, the Tove’a claims that $25,000 is due to him as a result of the increased membership of the congregation. Due to his present economic situation, he entreats this panel to mandate that the Nitva remit these funds.",
+ "Finally, should this panel fail to reinstate him to his former office, the Tove’a is suing for $100,000 for psychological trauma due to the Nitva’s termination without just cause.",
+ "Nitva’s Claims",
+ "The Nitva concedes that had the Tove’a been given a life contract, he would be tenured and it would be impossible to terminate his employment without just cause. In this case, however, the Tove’a’s employment was based upon three contracts, and their provisions do not make any reference to employment beyond the date of expiration recorded in each. In fact, each contract explicitly states that there is an expiration date for his services, “unless extended by mutual agreement of the parties.” As such, the Nitva was empowered to terminate his employment even though the Tove’a was not found to be negligent in the performance of his duties.",
+ "The Congregation admits that it pledged to pay the Tove’a a bonus, but since that promise was never recorded in their written agreement, the Congregation is not obligated to remit those funds, as prevailing practice is to comply only with the provisions written in the contract.",
+ "The Nitva asserts that the Tove’a’s monetary claim for emotional stress is unfounded, as he is no different from any other employee who is subject to discharge, even if his work entails spiritual matters.",
+ "Discussion",
+ "1. Is Rabbinic Office a Tenured Position?",
+ "Halakhic authorities have consistently argued that a rabbinic position is a minui shel kedushah (a sacred appointment); since, as the Tove’a argues, “we ascend in matters of sanctity, but we do not descend,” a rabbi essentially has tenure for life. Nevertheless, following in the footsteps of Rivash, authorities traditionally mandated that the rabbi sign a ketav minui (a rabbinical appointment), or what is termed today a rabbinic contract, to ensure that he would not abandon his congregation prior to the expiration date of the agreement. Just as a rabbi cannot choose to forfeit his position, his congregation cannot terminate his services. So that the strictures of the contract would not turn the rabbi into a sort of indentured slave, fixed-term rabbinic contracts were executed with a term service that did not exceed three to six years.",
+ "In the nineteenth century, halakhic authorities consistently viewed rabbinical office as a minui shel kedushah. Accordingly, R. Aharon Azriel observes, “We never heard in the cities of Turkey … that a rabbi was discharged.” In the same period in Hungary, Hatam Sofer notes that although the nature of the rabbinate has changed since the time of the Sages, a rabbi still has a right to tenure. R. Malkiel Tenenbaum, a Polish decisor of the same period, ruled that the notion of “minui shel kedushah” is not limited to a rabbi who is formally appointed by a community, but rather applies equally to a rabbi who the people perceive as their authority and whom they consult regularly.",
+ "Nevertheless, in the United States today, it is accepted that a congregation may execute an agreement with their rabbi stipulating the conditions of his employment, including the termination of his service on a particular date. Should the congregation deem it appropriate to continue his employment, a new contract will be drafted thereafter. If there is a custom to offer fixed-term contracts with the understanding that the congregation may discharge the rabbi at the expiration of the term, the congregation may terminate his employment at the end of that term. Even in the absence of a prevailing custom to offer fixed-term contracts, many Modern Orthodox congregations rely on various precedents that perceive a rabbi as no different than a cantor, who occupies public office, or any other employee who can be terminated upon the expiration date of a contract.",
+ "In the case at hand, the explicit provision, “unless extended by mutual agreement between the parties,” is found in all three contracts, clearly attesting to the fact that neither the Tove’a nor the Nitva construed the rabbinic office as a tenured position. As such, the Nitva had the right to terminate the Tove’a’s employment after June 30, 2009.",
+ "2. The Validity of a Communal Promise",
+ "The question of whether the Nitva is obligated to remit a bonus to the Tove’a in recognition of his efforts to increase the synagogue’s membership will be addressed on two functionally and conceptually different planes, as mandated by the arbitration agreement – the level of din (strict law) and that of pesharah kerovah la-din (court ordered settlement in accordance with Halakhah).",
+ "A promise is not enforceable in beit din, as it lacks the two critical components of a halakhic obligation – kinyan (a symbolic act of acquisition) and gemirat da’at (concrete articulation of the parties’ resolve to undertake the obligation). Since a promise entails executing an obligation in the future (for example, a promise to sell goods) or to transfer title of something that is not yet in existence (davar she-lo ba la-olam), it is legally (halakhically) unenforceable.",
+ "Despite the lack of a halakhic-legal obligation to fulfill one’s promise, however, there remains a halakhic-moral duty to do so. Accordingly, Shulhan Arukh rules:",
+ "When one conducts and concludes commercial transactions using words only [the negotiation and agreement not being completed by a formal act of acquisition], that person should stand by his word, even though none of the purchase price has been taken, nor a buyer’s mark made on the goods … Whoever withdraws from this type of transaction, whether buyer or seller, is deemed a faithless person.",
+ "Rema adds:",
+ "A person should stand by his word, even though no act of acquisition has been performed, only mere words have passed between the parties …",
+ "As I have noted elsewhere:",
+ "Halakhah views promise-keeping as aligning oneself with the fulfillment of a religious norm rather than compliance with a norm of natural law, institutional moral norm, or moral norm established by social convention.",
+ "Although promises are generally legally unenforceable, Maharam mi-Rotenburg suggests that a promise made by a group or community differs. In the case under discussion, a group of people hired a teacher and enquired of Maharam if they were permitted to retract their offer prior to the commencement of his employment. Maharam rules:",
+ "The law is clear … Any matter resolved before the seven elders of the town … one cannot retract given that the behavior of many is unlike the conduct of one individual … and the customary practice is that any matter resolved among many does not require the kinyan which is usually required when dealing with an individual.",
+ "Rema indeed rules that communal matters do not require a kinyan. Thus, although a kinyan is necessary in order to legally validate an obligation between individuals, no kinyan is necessary when a community obligates itself towards an individual. In the latter case, the community is legally – not only morally – obligated to comply with its promise, even in the absence of a kinyan. It would certainly seem that this ruling would extend to a synagogue body and its governance. Accordingly, this beit din could obligate the congregation to fulfill its word to the rabbi.",
+ "Other authorities disagree with this conclusion, however. Shulhan Arukh rules:",
+ "Some say that if a group said to an individual that he would receive a gift, they cannot retract, even if it is a large gift.",
+ "According to some commentators, Shulhan Arukh implies that there is a halakhic-moral obligation for the public to give the gift, but the public cannot be halakhically-legally coerced to remit it.",
+ "Others argue that the irrevocability of a community’s promises is contingent upon the fact that there is a prevailing minhag in the community to fulfill promises without an accompanying kinyan. Consequently, in locales where no such practice persists, the absence of kinyan allows the public to revoke their offer.",
+ "Thus, the question of whether a community is halakhically-legally obligated to fulfill its promises is subject to debate, and even if such a duty exists, it may be contingent upon the presence of a minhag to act in such a fashion. Given the difference of opinion regarding this issue and the congregation’s minhag of only complying with what is recorded in the contract, we are unable to obligate the Nitva to remit the promised bonus to the Tove’a according to the dictates of din.",
+ "One of the primary objectives of pesharah kerovah la-din is to promote shalom, peace between litigious parties, and the need to foster compromise for the sake of peace equally applies in communal matters, such as our case. However, Halakhah proscribes us from implementing a compromise if this means remitting funds due to the economic situation of a litigant; the injunction “do not be compassionate in din” applies equally to the realm of pesharah. Thus, in our case, the Tove’a’s financial status is irrelevant to the question of whether the Nitva’s funds should be transferred to him. It is possible that these funds are rightfully the Nitva’s and therefore ought to remain in the congregation’s possession.",
+ "Nonetheless, pursuant to pesharah kerovah la-din, this panel finds a basis for mandating that the Nitva remit the funds to the Tove’a. At the very minimum, there exists a halakhic-moral obligation for the Nitva to fulfill its promise, even if that promise is unenforceable according to the conventional norms of Hoshen Mishpat (dinei adam). The Nitva is responsible according to dinei Shamayim (the laws of heaven) to comply with its halakhic-moral duties.",
+ "Addressing an agreement between three political parties regarding an upcoming municipal agreement which was invalid because it concerned a davar she-lo ba le-olam (a future event), a contemporary rabbinical court notes:",
+ "We must add and say to the litigants that as public servants and when acting in this capacity, they should not argue that the obligations which they undertook are not binding because their validity can be disputed under law. Promises and obligations, especially in communal affairs, are holy and must be fulfilled to capacity, in accordance with their original intent, wording, and spirit. Public servants shall not go back on their word and bring ruin on the public by insisting on the strict letter of the law.",
+ "In accordance with the halakhot that govern pesharah and in light of the fact that pesharah kerovah la-din should be fair and equitable, it is this panel’s opinion that it is incumbent upon the Nitva, as a communal organization, to keep its word. The congregation is therefore obligated to pay the promised bonus to the Tove’a.",
+ "3. Grounds for Reimbursement for Infliction of Emotional Stress",
+ "Finally, we must address whether there are grounds for the Tove’a to file a claim for emotional stress against the Nitva after the congregation terminated his employment without just cause after nine years in the position. The Talmud teaches us:",
+ "If one frightens another, he is not liable by the law of man, but he is liable by the law of heaven. If he blew [with a trumpet or the like] into his ear and made him deaf, he is not liable. But if he held him and blew into his ear and made him deaf, he is liable.",
+ "Absent physical contact and physical damage, one who frightens another does not thereby incur liability. Maharshal and Ra’avad argue that fright and shock could have not caused injury, since the generally accepted assessment (omed) is that fright and shock do not suffice to cause emotional scarring. Others, such as Rosh, Mordekhai, Maharam mi-Rotenburg, and Tur, contend that injury caused by fright is an instance of gerama (indirect damages), and “gerama be-nezikin patur” – there is no liability for an injury that is caused indirectly. According to all opinions, however, emotional stress in the absence of physical contact generates liability according to dinei Shamayim, the laws of heaven.",
+ "Decades ago, R. Avraham I. Kook applied this principle to the case of a rabbi who was discharged from his position, and such psychological stress is certainly compounded in our case, in which the removal was without just cause. Nevertheless, Ran, Rashi, Meiri, Tashbetz, and R. Feinstein conclude that every individual who ventures out into the world assumes the risk of emotional injury, exposing himself to unexpected trauma. One should try to be more thick-skinned rather than burden others with responsibility for his emotional weaknesses. Failure to inure oneself to the routine stresses of existence bars recovery for any ensuing psychological injury.",
+ "Thus, on the level of strict din, Halakhah does not mandate recovery for emotional stress, which constitutes indirectly-caused damages that an individual should be able to confront and address without compromising his psychological integrity.",
+ "However, there is a second plane of the halakhic law of damages that is predicated upon the fact that under certain prescribed conditions, an arbiter may exercise his judicial discretion regarding whether or not to award damages. After the lapse of the ordination process in the fourth century C.E., non-ordained arbiters – communal leaders and beit din shel hedyotot (lay arbiters) – were granted authority to resolve cases involving common injuries that caused the injured party a financial loss. The compensation that these arbiters could impose, however, was limited to reimbursement for loss of income and medical expenses; claims of liability due to boshet (shame and embarrassment) although arising from bodily damage ensuing from a physical act, could not be submitted to a non-ordained arbiter for adjudication, since there was no loss of income. Nevertheless, communal leaders and laymen are empowered to exercise exigency jurisdiction in matters of civil damages such as boshet under the rubric of le-migdar milta (protective measures) and ha-sha’ah tzerikhah lekakh (the times require it). To promote broader policy goals, arbiters are authorized, under certain circumstances, to deviate from the black-letter Halakhah of damages and impose actual and/or punitive damages.",
+ "The question at hand, then, is whether the case in question constitutes an exigency situation in which the beit din is empowered to mandate damages even though they are not demanded by the din. There are three approaches to defining what constitutes an exigency situation that would empower an arbiter to mandate such damages. According to Maharam Lublin, any individual can be punished in order to deter others from emulating his behavior. The Sma maintains that this is true only if the wrongdoer is habitual in his misconduct, while the Sha’ar Ephraim holds that the arbiters have this authority only if other people in the community are engaging in the same type of conduct and deterrence is necessary.",
+ "It seems clear that our case is not an exigency situation that empowers the beit din to impose damages upon the Nitva. As noted above, the practice of offering renewable contracts that can be extended by mutual agreement of the congregation and rabbi is a practice in many synagogues, including that of the Nitva; discharging the rabbi is a widespread practice among Modern Orthodox synagogues and is grounded in halakhic precedent. As such, the Nitva did not act improperly and there are no grounds for awarding damages for the infliction of emotional stress. The Tove’a, like all people who venture out into the world and endure difficult situations, must learn to cope with his experience.",
+ "Decision",
+ "1. The Nitva did not act improperly in dismissing the Tove’a from his position as rabbi.",
+ "2. The Nitva shall immediately pay $25,000 to the Tove’a.",
+ "3. The Tove’a’s claim for damages based upon the Nitva’s infliction of emotional stress is hereby denied."
+ ],
+ "d) Self Dealing in the Not for Profit Boardroom": [
+ "D. Self-Dealing in the Not-for-Profit Boardroom
Yeshiva Har Tzion v. Yossi Stein",
+ "Due to severe overcrowding conditions in their facility, Yeshiva Har Tzion sought land to build an additional building. Yossi Stein, a trustee on the yeshiva board, is the sole owner of Century Realty Corporation, which owned a plot of land adjacent to the yeshiva that was suitable for the yeshiva’s needs. Mr. Stein persuaded his real estate broker to offer the plot to the yeshiva, but neither Mr. Stein nor the broker disclosed Stein’s ownership of Century. The yeshiva ultimately bought the plot for one million dollars.",
+ "Realizing that the yeshiva required additional capital to finance the property purchase, Mr. Stein persuaded the board to sell a vacant lot owned by the yeshiva to his nephew. The nephew agreed that should the sale materialize, he would use his political connections to arrange for his uncle’s appointment as a councilman on the municipal board. Again, neither Mr. Stein nor his nephew disclosed their familial ties to the yeshiva, nor the nephew’s offer to his uncle.",
+ "The yeshiva’s board voted to approve both the purchase of the property and the sale of the yeshiva land. After the finalization of the sale, the yeshiva became aware of Mr. Stein’s ownership of the real estate company, as well as the identity of the buyer of their property. In light of the circumstances, Mr. Stein was removed from his board position.",
+ "Tove’a’s Claims",
+ "The Tove’a argues that this situation can be best described as “a self-dealing transaction” in which the Nitva had a financial interest in the yeshiva’s purchase. The Nitva was therefore obligated to exhibit transparency by disclosing his interest in the transaction. Moreover, the Nitva utilized his power of persuasion as a board member to purchase this land at a cost of one million dollars. Upon discovering the Nitva’s ties to the transaction, the board became aware that the fair market value of the property was $900,000. Consequently, the Tove’a is suing for $100,000 from the Nitva.",
+ "Similarly, because the board was unaware of the fair market value of their property, the Nitva’s nephew was able to purchase the property at $150,000 below its market value. The Tove’a is therefore suing for an additional $150,000.",
+ "Nitva’s Counterclaims",
+ "If the purchase price of the property did not reflect the fair market value, it was the board who shirked its responsibility by failing to perform due diligence and leg-work that might have demonstrated that both transactions were not the good deals they seemed to be. Moreover, while other boards have the practice of requesting that its members read a conflict-of-interest policy, list any affiliations in which they have a financial interest, and recluse themselves from deliberation should a conflict arise, there is no such practice on the Tove’a’s board. As such, the process of purchasing the land was not tainted, and the Nitva is exempt from any responsibility regarding this matter. Finally, Nitva argues that his removal from the board was unjustified and he should be instated to his former position.",
+ "Discussion",
+ "1. The Requirement of Transparency",
+ "The Nitva’s argument is that a duty to refrain from self-dealing is predicated upon the signing of a conflict-of-interest questionnaire. If a board member signed such a document, he has an obligation to avoid self-dealing transactions, but if he did not do so, no such duty exists and there is no requirement to inform the board of his vested interest in any matter up for discussion or vote.",
+ "This argument is halakhically untenable. The board in question serves the interests of a yeshiva whose ultimate goal is the inculcation and internalization of halakhic norms and Jewish education. Those same norms apply to the yeshiva’s board irrespective of the existence or nonexistence of any contractual agreement executed by its members.",
+ "Halakhah instructs us to not only be innocent, but also to appear in the eyes of our fellowmen as innocent. The Mishnah thus instructs that the person who enters the Temple office for the purpose of collecting donated half-shekels must act in a particular manner:",
+ "The collector may not enter dressed in a loosely-hanging garment [with sleeves in which money can be hidden], nor wearing boots or sandals or tefillin or an amulet [in which money can be concealed] … For a person must be guiltless before his fellowman as before God, as the Torah states: “You shall be guiltless before God and before Israel.”",
+ "In short, one must exhibit transparency in one’s relations with others. This imperative is not limited to an individual engaging in social interaction, but rather equally applies to a person who occupies public office. The identical halakhic requirement applies to a member of a board when he is serving his institution and when he is interacting with others in a social context.",
+ "Since the professional halakhic-ethics of a board is synonymous with the halakhic code of social ethics, we must analyze a trustee’s professional responsibility through the same categories that govern interaction with others in other contexts. We will therefore consider whether a trustee is to be viewed as a dayan (judge), shomer (bailee), apotropos (guardian), or shaliah (agent). The trustee’s halakhic identity will determine how his conflict of interest will ultimately be viewed.",
+ "2. The Trustee as a Dayan",
+ "Numerous decisors have advanced the idea that the authority of the community and its public servants are comparable to and function like a beit din, with each and every municipal officer serving as a dayan. This conclusion extends by analogy to any communal, synagogue, or yeshiva board.",
+ "A dayan may not judge any case that may benefit him in some way. By extension, all self-dealing transaction involving individuals who are empowered to render communal decisions should be prohibited. Invoking the community leader-dayan paradigm, R. Yehezkel Landau argues:",
+ "Regarding taxation matters, they are interested parties, as explicitly stated by Rema 163, that for all communal needs … one must enlist all the taxpayers to preside on these matters.",
+ "In other words, all communal matters, including tax concerns, are to be construed as vested interests of each and every board member, and therefore only the local citizenry may resolve these matters. Others have also subscribed to the view that all acts of self-dealing are prohibited for communal leaders.",
+ "Public office holders should act at all times in a manner that demonstrates integrity, avoiding even the appearance of a conflict-of-interest, and thus serving as examples to fellow officers and the community. Given that the scenario described regarding Mr. Stein and the board may be characterized as a self-dealing transaction, such a potential sale should neither have been reviewed nor deliberated upon by the Nitva.",
+ "Was the Nitva precluded as well from involvement in deliberations regarding the sale benefiting his nephew, a sale from which he would derive no financial gain? A dayan, and by extension a trustee, must equally distance himself from self-dealing that involves a non-financial interest. Regarding a witness or dayan with a vested interest in a non-financial matter, Rambam rules:",
+ "If the witness finds that he has an interest in the testimony … he should not testify regarding it … Just as he shall not testify in this matter due to the possibility that he is an interested party, similarly he shall not judge this matter …",
+ "The exclusion of a “nogei’ah be-davar” (an interested party) from involvement in deliberations has been extended to public servants, who are compared to dayanim. R. Yosef ibn Lev (Maharival), for example, discussed a case in which a hazzan obligated himself to serve a particular community but then accepted a position in another community, claiming that the first community had breached the terms of the agreement. The members of the community claimed, on the other hand, that the hazzan remained obligated to serve them. Maharbil ruled that the testimony of the head of a kehillah was not admissible; they were noge’im be-davar, as they wished to continue to benefit from the hazzan’s skill. If the citizenry’s testimony is invalid in such a case, the leadership’s input regarding such a matter should certainly be discounted.",
+ "Consequently, our case, in which the Nitva persuaded the board to sell the yeshiva’s vacant lot to his nephew in the hopes that his nephew would facilitate his appointment to the municipal board, is an example of self-dealing. Given that such a civil appointment would benefit the Nitva, the transaction is tainted.",
+ "The question of the propriety of selling the Tove’a’s land to the Nitva’s nephew is actually addressed in a teshuvah of R. Yosef Trani, who discusses whether a trustee of a charitable foundation may sell some of its assets to a relative. R. Trani contends that this would be a self-dealing transaction and is therefore prohibited. First, the factor of hashad (suspicion) ought to preclude such an act. Furthermore, it is unlikely that there will be serious negotiations and use of bargaining tactics in discussion with a relative of a board member. Finally, potential buyers with more attractive offers than the relative will abstain from the bidding process due to their assumption that the trustee’s relative has the sale “locked up.”",
+ "3. The Trustee as a Shomer",
+ "Halakhah recognizes that obligations may be created by parties undertaking duties based upon oral or written agreements, whereby each party establishes a claim against the other that the latter is obligated to honor. Thus, a shomer (bailee) is obligated by dint of agreement with the mafkid (bailor) to safeguard the asset entrusted to his safe-keeping. In effect, a communal officer who is entrusted with dispensing, investing, and dealing with public funds has the status of a shomer.",
+ "As Talmud notes, a shomer is precluded from involvement in self-dealing transactions:",
+ "If one deposits fruit with his neighbor and it spoils … he [the shomer] may not touch it – this is R. Meir’s ruling. But the Sages maintain: He provides a solution for them by selling them pursuant to the beit din’s direction, and he must sell it to strangers, not to himself.",
+ "Even though the transaction has been approved by a beit din of experts (mumhin), the asset may only be sold to a third party. If we were to allow the shomer to buy it himself, others would be suspicious that he lowered its value prior to acquiring it for himself. Moreover, even though the purchase received beit din approval, people would be unaware that there was a beit din appraisal or that a beit din may execute such an appraisal, and they would thus assume that the shomer deceived the beit din regarding the asset’s market value. Should the bailment be sold to the shomer, the sale, although executed under the auspices of beit din, is null and void. In short, a shomer has no right to engage in a self-dealing transaction, and even beit din review cannot validate a shomer’s purchase.",
+ "In our case, the Nitva, a public servant, is considered a shomer and was therefore proscribed from purchasing the property for himself under the guise of an offer advanced by a real estate broker.",
+ "4. The Trustee as an Apotropos",
+ "Public servants are empowered either by election or appointment by the constituency of their respective communities or voluntary associations to be entrusted as guardians over their assets. The creation of these bodies and the responsibilities of the trustees vis-à-vis these constituencies are shaped and molded by hilkhot apotropsut, the laws of guardianship.",
+ "An apotropos charged with guardianship of an orphan must avoid any hashad (suspicion) that he is mismanaging his ward’s funds. To be above suspicion, any profit derived by an apotropos from a personal transaction with a third party concerning the orphan’s assets requires the prior scrutiny of a beit din, which may determine that the sale is to the orphan’s financial benefit as well and therefore may validate the sale.",
+ "The same conclusion would be applicable to a trustee, who has the status of an apotropos. R. Adas, R. Ya’avetz, and R. Elyashiv invoke this parallel, emphasizing that an overarching concern of an apotropos managing a communal organization is to avoid suspicion when disbursing funds to needy individuals. In other words, hilkhot apotropos mandates that trustees comply with full disclosure of their vested interests and that a beit din or administrative body review any and all interested transactions by implementing “a fairness standard.”",
+ "In our case, to avoid the issue of hashad in the public eye, the Nitva was required to disclose his ties to Century Realty Corporation and his familial relationship to the purchaser of the yeshiva’s property. Validation of the two transactions would require a determination by the beit din or any administrative body, including but not limited to the board, that the transactions and its terms have been arrived at through a rational and fair process, that the terms of the sale are fair and reasonable, and that these transactions are in the organization’s best interests.",
+ "If an apotropos was appointed by a father for his child and there is corroborating evidence, such as the existence of witnesses, that testifies to the apotropos’s self-dealing activities, he may be relieved of his duties. According to some decisors, a beit din appointed apotropos may be removed from his position even if he is only suspected of engaging in self-dealing, while others argue that witnesses to his activities are required prior to removal. Given the facts in our case, the Tove’a certainly had well-substantiated grounds to remove the Nitva from his status as an apotropos. Indeed, contemporary decisors have applied hilkhot apotropos in mandating the removal of trustees from the board of a religious charitable foundation due to their improper behavior.",
+ "5. The Trustee as Shaliah",
+ "It is also possible to view the role of a board through the prism of hilkhot shelihut, the laws of agency, as the board members must serve the best interests of their constituency. A shaliah (agent) is proscribed from being in a conflict-of-interest with the person who appointed him. As Rambam states:",
+ "If someone appoints an agent to betroth a woman on his behalf, and he [the agent] proceeded to betroth her for himself, she is betrothed to the agent. But it is prohibited to act in such a fashion, and whoever acts in this manner and the like in other matters of commerce is called wicked.",
+ "Although his act is not nullified due to his deviation from his mandate, the shaliah’s self-dealing is viewed as inappropriate behavior.",
+ "At first glance, it would seem that Halakhah frowns upon the recalcitrant shaliah because he fails to fulfill the mandate of the one who sent him. In truth, however, Halakhah is also concerned with the character and integrity of the agent himself. Thus, the Shulhan Arukh rules that if a person appoints a shaliah to sell his field, the shaliah may not buy it himself, even if his property neighbors the field and he therefore should, by right, be offered the land first (mezran). One of the reasons for this ruling is that we are concerned that there will be a hashad that the agent acquired the field at a price below its fair market value.",
+ "This same applies, by extension, to public servants. The purpose of a board is to promote and foster the best interests of the organization; a board’s agenda epitomizes an agent’s mandate: “I appointed you for my benefit rather than detriment.” Self-serving behavior undermines the institution’s goals, as well as its ideological and financial integrity, and it should thus be deemed unacceptable. As such, transparency and accountability for its activities is paramount.",
+ "Emerging from this discussion is that the board of the yeshiva ought to have obligated all its members to read the organization’s conflict-of-interest policy and fill out an annual disclosure form enumerating the affiliations in which they have an ownership interest and, to the extent known, those affiliations of family members covered by the conflict-of-interest policy. The board could have passed a simple prohibition against all self-dealing, thereby reinforcing the fiduciary concept of loyalty and accountability. Alternatively, the board could have chosen to govern its members’ activities under hilkhot apotropos, in which case a beit din, administrative panel, or the board itself would review any conflicts of interest that might arise and determine if the potential transaction complies with the fairness standard. Accordingly, we would have to consider whether the interested trustee complied with the full disclosure policy; whether the board environment was unbiased at the time the decision was made to engage in the transaction; whether there was due diligence in assessing the fairness of the transaction; and whether the transaction promoted the organization’s ideological, economic, and financial interests.",
+ "In this sense, the Nitva is correct in stating that the board did not fulfill its duties in serving the community’s best interests, as it failed to issue or enforce conflict-of-interest guidelines and was certainly negligent in the realm of due diligence. However, the Nitva cannot claim that the board’s failure to address interested transactions gives him license to do whatever he wishes. As a member of a covenant-faith community, his actions must be transparent and above any and all suspicion. Consequently, the Nitva’s failure to disclose his relationship to Century Realty Corporation, his familial ties to the purchaser of the yeshiva’s property, and their arrangement for the Nitva to receive a municipal office tainted the process, as well as the two transactions. As such, the Nitva is monetarily liable for his actions.",
+ "Decision",
+ "The Nitva is hereby obligated to immediately pay the Tove’a $250,000."
+ ],
+ "e) Real Estate Brokerage Fee Commission": [
+ "E. Real Estate Brokerage Fee Commission
Simcha Levy vs. Bayla Srulowitz",
+ "In June 2005, Simcha Levy, a New York licensed real estate broker (Tove’a) entered into a written brokerage agreement with his client, Bayla Srulowitz (Nitva’at), whereby he would show commercial properties for sale to the Nitva’at and would receive a 7% commission, to be shared equally by the buyer and seller, on any consummated sale. Pursuant to this agreement, the Nitva’at was shown several properties. In May 2006, the Nitva’at purchased one of those properties for three million dollars. The Nitva’at refused to pay the 7% commission on the transaction to the Tove’a.",
+ "In August 2005, the Nitva’at placed an ad in the local newspaper that she was interested in selling a piece of residential property. Upon reading the ad, the Tove’a secured a buyer for the Nitva’at’s property and the Nitva’at sold it. Inadvertently, the Tove’a forgot about the transaction, and only recalled it eighteen months later. At that time, the Tove’a billed the Nitva’at, but she refused to pay the broker commission for this transaction.",
+ "Tove’a’s Claims",
+ "Based upon the written agreement executed between the parties, the Tove’a argues that he is entitled to a brokerage fee for his services rendered in the commercial property transaction. Although there was no express brokerage agreement between the parties in the residential property transaction, the Tove’a claims that based upon commercial practice, he is entitled to a broker’s commission fee of 6% for services rendered. In both transactions, the Nitva’at accepted the benefits of the Tove’a’s services, and he is therefore entitled to a commission.",
+ "Nitva’at’s Counterclaims",
+ "Since there was no express written brokerage agreement between the Tove’a and Nitva’at regarding the purchase of the residential property, according to commercial practice, the Tove’a is not entitled to a commission for services rendered. Moreover, even if the Tove’a is entitled to payment, New York State’s statute of limitations for filing a lawsuit regarding unpaid real estate commission is six years; since the time limit for pursuing a remedy has expired, commercial practice dictates that the Tove’a is not entitled to recover his commission.",
+ "Regarding the purchase of the commercial property, the Nitva’at admits that the Tove’a provided the services as promised, but she argues that the rate of commission recorded in the brokerage agreement is above the market rate for property sold for three million dollars, and he therefore is entitled to a maximum of 6% brokerage commission.",
+ "Discussion",
+ "Halakhah dictates that a metavekh or sarsur (broker) is duty-bound to comply with the halakhot of hiyuvim (obligations). Remuneration of a broker for his services is thus guided by the principles of zeh neheneh ve-zeh haser and minhag ha-soherim.",
+ "1. Zeh Neheneh Ve-Zeh Haser",
+ "If one individual benefits from another (zeh neheneh) and the latter sustains a loss due to the benefit conferred (zeh haser), the beneficiary is liable to pay, either because he is viewed as a gazlan (a thief) who is benefiting without remitting payment or a mazik (tortfeasor). In secular law, this is referred to as “unjust enrichment.” Prior to imposing monetary liability in such a case, the loss caused to the benefactor must first be defined.",
+ "Real estate brokers invest their time to identify a property that best fits their clients’ needs and budgets. They obtain listings and execute agreements with owners to place properties for sale with the real estate company, and they compare the listed property with similar properties that recently sold in order to determine the market value of the property. A broker may meet frequently with prospective buyers to discuss and visit available properties. When buying property, brokers arrange for title searches to verify ownership and for meetings between a seller and potential buyer, during which they agree to the details of the transaction. A broker also acts as an intermediary in price negotiations between a buyer and seller, and in some instances may assist in arranging financing from a lender for the prospective buyer, which may be the catalyst “to close the deal.” The broker’s outlay of expenses for advertising, licensing, and transportation, as well as his profit, is covered by his market commission. Accordingly, consummation of a sale without paying the broker his commission constitutes a loss for the broker. As this is an example of zeh neheneh ve-zeh haser, the broker is entitled to reimbursement.",
+ "Rema rules that this is true even in the absence of a written or verbal agreement to provide services:",
+ "If an individual performs an action or benefit for his friend, he [the beneficiary] cannot say that it was done gratis, as he did not tell him to do it, and he must compensate him.",
+ "According to some authorities, the basis for Rema’s position is a case brought in the Talmud, in which a man planted trees in a field without the owner’s permission and then requested remuneration. The owner, however, repeatedly asserted that he was not interested in the improvements to his property. Subsequently, the owner fenced in the trees, and Rav then instructed him to pay the man who had planted them; by taking efforts to protect the trees, the owner revealed that he was, in fact, interested in them.",
+ "Numerous legists endorse Rema’s view, arguing that an individual is entitled to a fee for services rendered regardless of whether the individual was duly empowered by another to perform those actions or he performed the services on his own initiative, provided that the beneficiary of the work did not direct him to stop working or communicated to him that he would not receive remuneration for his services.",
+ "Alternatively, failure to remit compensation for work rendered is subsumed in the category of “encroaching upon another’s property without permission.” As such, even in the absence of an agreement between the parties, a broker should receive compensation for his services.",
+ "In effect, a broker’s performance is a quasi-contract based upon unjust enrichment, zeh neheneh ve-zeh haser. Hence, if a broker furnished his services and the buyer changed his mind and withdrew from the deal, the buyer is obligated to pay a full commission.",
+ "2. Minhag Ha-Soherim (Commercial Practice)",
+ "One of the issues at bar is whether New York commercial practice (minhag ha-soherim) allows for the recovery of a brokerage commission in connection with a broker’s efforts to procure a buyer for a residential property. Significantly, the Tove’a does not allege that he had an express agreement with the Nitva’at to perform brokerage services for this property, but he claims that New York commercial practice entitles him to such compensation. The Nitva’at, however, claims that this is not the prevalent commercial practice.",
+ "New York case law clearly supports the requirement to pay a broker’s commission, even in the absence of a written agreement. In one case, the court ruled:",
+ "[T]he contract of employment may be established either by proof of an express and original agreement that the services should be rendered, or by facts showing, in the absence of such express agreement, a conscious appropriation of the labors of the broker. Indeed, “the contract may be established in some cases by the mere acceptance of the labors of a broker.”",
+ "This holding is reflective of a series of earlier New York rulings, dating back to 1881, that a broker is entitled to commission based upon facts indicating conscious appropriation of the labors of the broker by the client – that is, an implied contract of employment.",
+ "Although neither party is knowledgeable in New York law, they both expected to resolve their differences based on minhag ha-soherim, which is reflected by the law. The Talmud instructs that “an individual may stipulate contrary to what is written in the Torah” with regard to monetary matters, whereas Jews are not entitled to accept secular law that violates Halakhah. As such, should parties expect to resolve their matters entailing violations of theft and ribbit (prohibited interest), their arrangement would be halakhically unenforceable. Provided that no issurim (prohibitions) are violated, however, parties’ expectations (umdana) that broker-client relations should be governed by commercial practice are halakhically enforceable.",
+ "As Hazon Ish states:",
+ "The law of the kingdom [civil government] determinates the expectation of people. Since customarily we abide by the law of the kingdom under certain prescribed conditions, the law influences people who then decide to rely on civil law … Therefore, when we [beit din] apply secular law, we are in actuality following our Halakhah rather than their laws.",
+ "For example, Israeli civil legislation dictates terms of tenancy (the Law for Tenant Protection). R. Shlomo Karelitz argues in the name of his uncle, Hazon Ish, that absent any agreement to the contrary between a landlord and tenant, there is implicit expectation, an umdana, that the terms of tenancy will be based on civil law. However, in the absence of a clear indication that the parties wish to adopt civil law, the assumption is that Halakhah is the governing system.",
+ "In effect, the implementation of Halakhah may be predicated upon the expectations of people to follow halakhic tenancy law. The fact that a secular law exists regarding the matter may cause a change in the expectation; although it was originally clear that halakhic tenancy law would be adhered to, there is now a desire to follow secular law. Consequently, the Halakhah changes due to the change in the umdana. Invoking this umdana regarding tenancy law has been endorsed by other authorities as well.",
+ "The underlying rationale for legitimizing this approach is that the parties essentially agreed to resolve their issues according to their expectations, which in our situation means following secular law. In the words of R. Feinstein:",
+ "They have operated on the strength of the custom of the region, and that is equivalent to having specifically agreed to this arrangement.",
+ "While Halakhah itself is immutable, the fact that an umdana can serve as a basis for adopting civil law over the Halakhah in monetary matters is essentially built into the Halakhah itself.",
+ "Given that the custom of the locale reflects civil law, the parties’ expectations to follow that law is analogous to having accepted such an arrangement between themselves. In other words, the assessed expectation of the parties is no different than parties executing a contract and providing for a choice of law provision stating that their differences will be resolved by applying secular law.",
+ "With regard to the sale of the residential property in our case, there is ample evidence in the record that the Nitva’at accepted the benefit of the Tove’a’s services and that the Tove’a’s efforts were instrumental in consummating the sale. As R. Yisrael Grossman argues, the negotiations between the broker and the seller constitute “hoda’at ba’al din” (admission) that the Nitva’at was interested in using a broker and gave her implicit consent to his appointment, and she is therefore obligated to pay. Alternatively, as R.Ya’akov Blau contends, we invoke umdana, the expectations of the parties, which entail following minhag ha-soherim. Since the commercial practice in New York, as reflected in the law, is to require brokerage fees even in the absence of a written agreement, the Tove’a is entitled to a commission for his efforts.",
+ "3. The Amount of a Brokerage Commission",
+ "When the parties’ agreement does not specify the specific amount of the commission or, as in our case, when no agreement was executed regarding brokerage services, how can the rate be determined? R. Yaakov ha-Levi Ettinger (seventeenth century Salonika) writes that the answer depends on whether real estate matters fall under the purview of the Talmudic rule of dina de-malkhuta dina (the law of the kingdom is the law). In the opinion of Rema, all matters that are “le-takanat bnei ha-medinah,” for the benefit of the citizenry – understood by Rema as referring to any issues relating to social interaction – may be governed by civil law. Vigorously disagreeing with Rema, Shakh argues that if the particular secular law contradicts Halakhah, dina de-malkhuta dina does not apply. In our instance, there is no conflict between Halakhah and civil law regarding this matter, and Shakh would therefore concur that the rule is applicable. Hence, in our case, the Tove’a is entitled to a commission. R. Ettinger notes that even if the civil law were to contradict Halakhah, given that there is halakhic-legal doubt regarding whether we should follow the view of Rema or Shakh, we may resolve the rate of a brokerage commission based upon minhag (commercial custom). Many decisors have endorsed this opinion regarding a real estate broker and shadkhan (marriage broker) alike.",
+ "Based upon the foregoing, the Tove’a is entitled to receive the customary commission in New York at the time of the sale of the residential property – 6%.",
+ "4. Status of a Real Estate Agreement",
+ "Before proceeding to discuss whether the Nitva’at is obligated to pay the agreed upon 7% rate of commission on the commercial property, we must first establish the halakhic status of the real estate agreement.",
+ "Two components are required in order to undertake an obligation – kinyan (a symbolic act) and gemirat da’at (firm resolve of the parties). In this case, a kinyan sudar – handing a handkerchief or another article by one party undertaking the obligation to the other party – would not have been effective in validating the agreement, as a kinyan cannot obligate a party in a davar she-lo ba la-olam. Since the commission was not yet in existence at the time of the agreement, a kinyan cannot obligate the Nitva’at to pay the brokerage fee.",
+ "Furthermore, the terms of the agreement in question are as follows:",
+ "Owner agrees to pay a commission of 7% of the sale price if the broker procures a buyer who is ready, willing, and able to purchase the premises … If the property is sold … the commission provided for herein shall be due and payable …",
+ "Numerous authorities view this sort of language as a promise to execute a future action. This constitutes a kinyan devarim, which fails to create an enforceable duty. Only an agreement that incorporates language of hithayvut (obligation), such as “I obligate myself to pay” or “I obligate myself now to pay,” creates a monetary obligation, essentially transforming the parties into debtors. Hence, it would seem that a clause providing for payment of a commission in the future, even if it reflects the market rate, is unenforceable.",
+ "However, Halakhah recognizes the validity of a contract by virtue of kinyan situmta, the presence of a “seal.” If an agreement is acceptable according to commercial practice, there is implied gemirat da’at to undertake the obligation in accordance with the minhag. While agreements implementing a kinyan sudar are valid min ha-din (based upon the formal laws of obligations), contracts characterized by language considered kinyan devarim – such as surety agreements, preliminary agreements, contracts to sell a house, arbitration agreements, and divorce agreements – are binding by virtue of minhag ha-soherim. A real estate brokerage agreement is no different than these agreements. Consequently, a contractual provision providing for a davar she-lo ba la-olam, such as a payment of a commission in the future, is valid and binding.",
+ "In addition to the halakhic requirements for solemnizing an agreement between parties discussed above, Halakhah requires that the terms of an agreement incorporate certain stipulations, referred to as the “mishpetei ha-tenai’im” (laws of conditions), in order to be binding. In our case, the brokerage agreement should have been drafted in the following fashion:",
+ "If the broker renders his services properly, he is entitled to a commission; if the broker fails to render his services properly, he is not entitled to a commission.",
+ "Nevertheless, Shulhan Arukh concludes that the parties’ intent to establish terms of a commercial contract overrides any failure to comply with the mishpetei ha-tenai’im. Accordingly, notwithstanding the agreement’s failure to properly employ the formal language of stipulation mandated under Halakhah, the present agreement is binding upon the parties.",
+ "5. The Validity of a Mutually Agreed upon Commission Above the Market Rate",
+ "In the contract between the Tove’a and Nitva’at regarding the commercial property, the parties agreed that the brokerage commission would be 7% of the purchase price. Given that the rate of compensation is linked to local custom standards, the Nitva’at alleges that the mutually agreed upon rate is above the market standard, which is between four to six percent. Consequently, she should be required to pay less than the rate stipulated in the contract.",
+ "Relying upon the Maharam’s ruling, Rema, Shakh, and others claim that a broker is limited to receiving a commission that reflects the market rate because the client can always allege that he was jesting (“hashata”) and never seriously intended to pay the higher rate stipulated. In fact, even if it is clear that the client was serious in offering the higher rate, he is still only obligated to pay the market rate. If, however, the client voluntarily paid the promised rate, he has no grounds for advancing a claim of “jesting” and the entire sum belongs to the broker.",
+ "The majority of authorities, however, do not accept this view and maintain that a broker is entitled to receive the agreed upon amount even if the rate exceeds the market standard. Indeed, even the authorities who contend that a broker’s remuneration cannot exceed the customary rate agree that once the parties sign a contract detailing the agreed upon commission, the client is bound by those terms. The execution of a kinyan demonstrates the gemirat da’at of the parties, precluding the use of the “jesting” argument. Furthermore, if local practice is that the client must remit whatever amount he promised, he must do so even in the absence of a halakhic agreement; the existence of a minhag entails that there is automatically gemirat da’at to comply with one’s duty to remit payment.",
+ "As we saw above, although the written agreement in this case cannot be validated by way of kinyan sudar or the kinyan devarim within it, it is valid as per the minhag ha-soherim. Since there was gemirat da’at at the time of its writing, all views would agree to the validity of the parties’ written agreement to pay a brokerage commission rate that exceeds the customary rate.",
+ "6. Statute of Limitations Regarding Outstanding Debt",
+ "Even if the Tove’a is entitled to a commission for the sale of the residential property, the Nitva’at argues that the statute of limitations in the state of New York precludes his collection of those funds. In New York, after the expiration of six years, the injured party loses the right to file a lawsuit seeking monetary damages or other relief. The Nitva’at argues that since the Tove’a filed his suit after that time had elapsed, commercial practice dictates that he is precluded from receiving any relief.",
+ "Lapse of time may, indeed, be sufficient basis to impugn the credibility of evidence in support of a claim, leading a beit din to believe that fraud is at play and therefore to find on behalf of the defendant. However, in this case, the Nitva’at does not deny the existence of the debt and there is no reason to be suspicious of the reliability of the Tove’a’s claim. With few exceptions, a lapse of time in the absence of fraud does not curtail the right to advance a claim for an outstanding debt. Thus:",
+ "A creditor may recover a debt at any time, even if it has not been mentioned.",
+ "Shulhan Arukh rules:",
+ "When the creditor submits a note of indebtedness which is authenticated, the beit din says to the borrower, “Pay!” Even if there was a lapse of a few years and he did not advance a claim, we do not say that he waived it.",
+ "Thus, unless a creditor has explicitly waived his right of collection, the consensus of authorities is to reject a statute of limitations regarding unpaid debts.",
+ "In a locale in which there is no existent minhag to pay brokerage fees, there may be doubt as to whether a time lapse should be viewed as mehilah, a waiver of the debt. However, today, when it is common practice to pay for such services, R. Ovadiah Yosef argues that in the absence of an explicit waiver, the right of collection is not curtailed due to lapse of time.",
+ "Although Halakhah itself does not recognize a statute of limitations in the case of outstanding debt, both Rishonim and Aharonim argue that if the common commercial practice is to recognize a statue of limitations, the custom is valid. For example, Rosh states:",
+ "If an announcement appears, that anyone who has a claim and lien regarding land should now inform us and advance his claim, if he remains silent without protest, all his rights will be null, since this is the practice and this is the law of the land.",
+ "Shulhan Arukh endorses this view as well. Such practices continued through the nineteenth century and were supported by some decisors. For these decisors, the statute of limitations is validated based upon common practice in the locale (minhag), a communal ordinance (takanat ha-kahal), or civil law (dina de-malkhuta).",
+ "This view is subject to serious challenge. Minhag only has the ability to override Halakhah in monetary matters, not those involving issurim (ritual prohibitions); we are powerless to permit what Halakhah prohibited. For example, a minhag not to cancel debts in the sabbatical year has no validity, as there is an issur to collect such debts. Similarly, the Jewish community is only empowered to legislate matters in the realm of mammon, not issur. Thus, since it is prohibited to imprison a Jew due to his delinquency in repaying a debt, any communal legislation sanctioning this form of punishment is invalid. Finally, although Halakhah recognizes civil legal provisions in many monetary matters, should a civil law entail an element of issur, Halakhah will decline to impart recognition to the particular secular law. For example, if there were to be a civil law allowing for the collection of ribbit (interest), one would be proscribed from following it.",
+ "A broker is considered a kablan (a contractor for certain services) for the real estate services rendered. By revoking his legal right to collect an outstanding debt, we would be sanctioning the act of gezelah, misappropriating funds from a creditor. Although the matter at hand involves money, it is not a monetary matter; it involves the issur of thievery and therefore cannot be overridden by minhag, takanat ha-kahal, or dina de-malkhuta.",
+ "Accordingly, R. Ben Tzion Uziel levels criticism against those arbiters who invoke these factors in validating a statute of limitations:",
+ "Our matter is different from a custom adopted wherein we accept modes of kinyanim, such as situmta or minhag ha-sokherim, which are biding pursuant to custom. There is no sanction to steal due to customary practice … This involves the law of theft, and theft is not permitted due to custom.",
+ "Based upon the foregoing, we find that the Tove’a’s right to recover his compensation remains until this very day and was never extinguished due to the lapse of time.",
+ "Decision",
+ "1. The Nitva’at is hereby obligated to pay a 7% commission as a brokerage fee for the sale of the commercial property.",
+ "2. The Nitva’at is hereby obligated to pay a 6% brokerage commission for the sale of the residential property."
+ ],
+ "f) Drafting a Halakhic Will": [
+ "F. Drafting a Halakhic Will
Reuben Levy v. Rachel Singer and Leah Shlanger",
+ "The parties signed an arbitration agreement dated October 29, 2007 before the beit din to resolve their differences and disputes in reference to the estate and inheritance of the late R. Simeon Levy. At the hearing, the following document – henceforth referred to as the alleged shtar matanah (gift document) – was submitted as evidence. Prepared in 1985 by the testator, with an addendum signed in 2007, it purports to be an allocation by the late R. Levy of his assets among his three children, his son and two daughters.",
+ "The Will",
+ "חתימת ידי על שטר מתנה זו תעיד עלי כמאה עדים איך שהיום יום ראשון לס’ כי תשא, שהוא עשרה ימים לחודש אדר תשמ״ה, אני מתחיל לכתוב כתב צוואה זו בדעת צלולה שעזה״י והיא צוואה לבני ובנותי שליט״א ומהיום על אחר אריכת ימי השנותי על כל הירושה שתשאר אחרי בין נכסי דניידי ובין נכסי דלא ניידי, בין אותם נכסים שיש כבר תחת ידי ובין אותם נכסים שיבואו תחת ידי עד עת קצי על הכל אני מצוה בשטר זה שיחולו כנזכר לעיל בשורה הראשונה.",
+ "א.\tהשני בתים שיש לי בסטעטן איילענד יתחלקו בשוה כדי שווים בין בני ושתי בנותי.",
+ "ב.\tכל הכסף המונח בבנק וכן כל הסטקס ובונדס יתחלקו שוב בשוה בין הבן והבנות או בדרך החלוקה של הנ״ל או ע״י מכירה, ודמיהם יחלקו ביניהם כנ״ל.",
+ "ג.\tהבית החיים ישאר ביד בני (ובכתב יד למעלה מהמלה המודפס ״ובנותי״).",
+ "ד.\tכל הספרים יחלקו שוה בשוה בין הבן והבנות, כפי ערכם.",
+ "ה.\tהעמודים של מורה נבוכים שנכתבו והודפסו בברצלונה ששילמתי בעבורם אלף דולר לכל עלה יתחלקו בין הבן והבנות חוץ מאיזה עלים לכל אחד מחתני יחיו (לא ברור) שלשה לחתניי.",
+ "ו.\tבשנת תש״מ קניתי עשרה מקומות בביה״ח בבית שמש. מקום אחד מכרתי לאחין, יענקל. מט’ הנשארים יש לי ״קניני שטרות״ מונחים בכספת של הבנק ואני מבקש מבני שאחרי מוע״ש להוליך אותי שמה באחד המקומות הנ״ל. ואם אפשר ��בני יחיה ילוה אותי עד שמה, מה טוב. שאר המקומות יניחו רק לבני משפחתנו הי״ו.",
+ "ז.\tכל כלי הכסף יתחלקו שוה בשוה בין הבן והבנות כפי שויים וערכם.",
+ "ח.\tאם יהיו ח״ו איזה חילוקי דעות בין הבנים והבנות באיזה ענין הנוגע להירושה אזי אני מרשה בכל כחי ודעתי את בני הרב ר’ ראובן להכריע בכל דבר גדול וקטן ואליו ולהכרעתו ישמעון. ואני מבקש בכל לשון של בקשה שלא יהיו שום חילוקי דעות בדבר מן הדברים רק הכל יהיה בשלום ובדעה אחת שזהו כבודי וכבוד המשפחה וכבוד אמכם תחי’. וכבר שנתברר שאצל משפחות כבודות היו מתעקשים ולא חסו על כבוד הנפטר איך היו לחרפה ולבזות של כל המשפחה.",
+ "ט.\tאני מצוה לבנותי תחי’ להזהר בצניעות יתרה בלבושי בגדים וביחוד בשערות ראש בלי שום פשרות וזה עניי מכל עמלי להשאיר בן ובנות בעוה״ז הולך והולכות בדרכי אבוה״ק . . . שעל זה נתתי את נפשי בעזהש״י לחנכם ולגדלם על דרכי התורה והיראה במסורת אבותינו ורבותינו.",
+ "חתימה: הרב שמעון בן יוסף לוי, י’ אדר תשמ״ה",
+ "כל הנ״ל הוא רצוני האמיתי ושיגיע המתנה מהיום ושעה אחת קודם מיתתי לבני ולבנותי בלי שום יוצא מן הכלל ובתיקון חז״ל שו״ע והפוסקים. והריני מוסר מודעה שהיות שנאבד הצוואה המקורי ע״כ הנני מאשר וחותם על העתק זה ומבטל כל שאר צוואות שנכתבו כבר בנוגע לגבי הירושה והנכסים. וא״א לבטל צוואה זו רק בפני בני ובנותי, וחתימת ידי תעיד עלי על כל הנ״ל בהודאה גמורה בפני שתי עדים החתומים מטה ונגמר בקאג״ס ובשאר קנינים המועילים חתימת שמי היום בדעה צלולה, יום ה’, פרשת בוא, ו’ שבט תשס״ז, 25 ינואר 2007.",
+ "חתימה: הרב שמעון בן יוסף לוי, פרשת בוא, ו’ שבט תשס״ז, 25 ינואר 2007 חתימה: יוסף כהן, עד לפי הכתובת חתימה: אריה רבינוביץ, עד לפי הכתובת",
+ "My signature on this gift award shall serve as proof upon myself as one hundred witnesses, whereas that today, Sunday of the Torah reading Ki Tissa, 10 Adar, 5745 (March 3, 1985), I begin the writing of this will, with a clear state of mind with the assistance of the Almighty, which is a will for my son and daughters, may they live and be well, and [is to be effective] from today and after demise on the entire estate that will be left after me, both moveable property and real property, both such assets that I already have in my possession and such assets as may come into my possession until my demise. I am hereby offering my desire in this document, which shall become effective as mentioned above in the first line.",
+ "1. The two houses I have here in Staten Island shall be equally distributed according to their value between my son and daughters.",
+ "2. All of the funds in the bank, as well as all of the stocks and bonds, shall be equally distributed between my son and daughters, either by distributing the above or by selling [them], and the proceeds shall be distributed amongst them as mentioned above.",
+ "3. The cemetery shall remain the possession of my son [handwritten word on top of typewritten text reads: u-venotai, “and my daughters”].",
+ "4. All my religious books shall be equally distributed amongst my son and daughters, in accordance with their value.",
+ "5. The pages of an illustrated copy of the Moreh Nevukhim, written and published in Barcelona, for which I paid one thousand dollars for each flip page, shall be distributed amongst my son and daughters, except for a few flip pages to my sons-in-law [illegible] three to my sons-in-law.",
+ "6. In 1980, I acquired ten plots at the Beth Shemesh Cemetery in Israel. I sold one plot to my nephew, Yankel. For the remaining nine, I have “contracts of sale” in my bank safe, and I request of my son that after my demise I shall be taken there, to be buried in one of the aforementioned plots. If at all possible, my son should escort me until there; that is my preference. The rest of the plots shall be left for family members.",
+ "7. All the silverware shall be distributed equally among my son and daughters according to their worth and value.",
+ "8. In the event there will be any differences of opinion amongst my son and daughters on any matter that relates to the estate, I authorize, with all of my powers and my mind, my son R. Reuben to decide on every significant or insignificant matter; he and his determinations should be followed. And by utilizing every possible expression of appeal, I request that there shall be no differences of opinion on any matter of the matters, but that everything shall be peaceful and unanimous, for this is my dignity and the dignity of the family. It has already turned out that in respectful families people were stubborn and they did not care about the deceased’s dignity, and the entire family became disgraceful and shameful.",
+ "9. I direct my daughters to be careful in [exhibiting] an abundance of modesty in their attire, and especially regarding the hair of the head, without any compromises; this is my compensation for all my effort, to leave behind my son and daughters in this world, who proceed in the path of my holy forefathers of blessed memory, for which I have devoted myself to the Grace of the Almighty, to educate them and to raise them on the path of the Torah and fear of God.",
+ "Affixed Signature: R. Simeon ben Yosef Levy, 10 Adar 5745.",
+ "The Addendum",
+ "All the above is my true will, and the gift shall arrive today and a moment before my death to all my sons and daughters without any exception according to the usage of our Torah scholars, Shulhan Arukh and decisors. I hereby declare (mesirat moda’ah) that since the original will is lost, therefore I confirm and sign off on this copy and nullify retroactively all wills that were written regarding my inheritance and assets, and one can nullify this will only in the presence of my son and daughters. My signature shall attest to all the above as a full admission (hoda’ah gemurah) in the presence of the two signed witnesses below, and it is executed with a kinyan sudar and other effective kinyanim. Today, I have signed with sound mind, Thursday, Parashat Bo, 6 Shevat, 5767, January 25, 2007.",
+ "Affixed signature: R. Simeon ben Yosef Levy, Thursday, Parashat Bo, 6 Shevat, 5767, January 25, 2007.",
+ "Affixed signature: Joseph Cohen, witness with an address at …",
+ "Affixed signature: Aryeh Rabinowitz, witness with an address at …",
+ "Tove’a’s Claims",
+ "Mr. Reuben Levy maintains that his father’s entire estate and inheritance should be given to him, in accordance with the Torah law of inheritance. Since his sister, Rachel Levy, is the firstborn of the family, no claim of bekhorah (right of the firstborn male to a double portion) is advanced by Reuben.",
+ "The plaintiff claims that the alleged shtar matanah is a forgery. Moreover, even if it is authentic, given that this alleged shtar matanah was neither attested by witnesses nor validated by a kinyan, a symbolic act to effect the transfer of assets, the alleged shtar matanah is halakhically inconsequential.",
+ "Furthermore, given that their father was diagnosed with dementia in 2005 and was under Aricept treatment, the Tove’a argues that he lacked the halakhic-legal capacity to execute a shtar matanah. In fact, Dr. Springlass confirmed (in writing and via the telephone during a beit din hearing) that R. Levy, his patient, was bereft of the mental capacity to create a halakhic-legal document during that time period. Consequently, the reconfirmation of the alleged shtar matanah in the presence of witnesses, which took place in 2007, had no validity. Hence, in the absence of an authenticated shtar matanah to the contrary, their father’s assets ought to be divided according to the Torah laws of inheritance. As such, the Tove’a is the yoresh me-de-oraita, the sole heir to his father’s assets. Should the beit din affirm the testamentary disposition, they will be engaging in avurei ahsanta, disinheriting the heir who is the only one recognized as such by the Torah.",
+ "Moreover, the Tove’a claims that the defendants’ initiation of probate proceedings in Brooklyn Surrogate Court and in Brooklyn Supreme Court regarding other inheritance matters not covered by this arbitration agreement involved recourse to arka’ot shel akum, gentile courts, which is prohibited by Torah law. Hence, the Tove’a argues that he is entitled to receive $14,093.75 reimbursement from the defendants for court and legal costs.",
+ "Nitva’ots’ Counterclaims",
+ "Rachel Singer and Leah Shlanger, the Nitva’ot, argue that on March 3, 1985, instructions for dividing up the assets of their late father equally between his children were recorded in a one-page document that was prepared, typed, and signed by the deceased himself. At the time, although R. Levy signed the alleged shtar matanah, there were neither witnesses present to affirm his wishes, nor did their father execute a kinyan to validate the document and transfer his estate “one moment before my demise.” This document was placed by their father in an envelope (with outside markings of “tzava’ah” [will]), which was then placed in a dresser in his home.",
+ "Years later, although the original alleged shtar matanah was lost, copies of it were circulating among various family members. Concerned that the Tove’a, their brother, would contest the alleged shtar matanah, at the behest of the defendants, on 6 Shevat, 5767 (January 25, 2007), the sisters allege that their father desired to add an addendum to the alleged shtar matanah and consented to its validation by two witnesses, accompanied by the execution of a kinyan. The addendum was prepared by a local rabbi.",
+ "The addendum provides that R. Simeon Levy, being of clear mind, arranges that his gift will transpire a moment before his demise, acknowledges the loss of the alleged shtar matanah, and asserts that his signature attests to all that was stated as a firm admission in the presence of the two witnesses and accompanied by a symbolic transaction, kinyan sudar. Accompanying this addendum is the testator’s signature, as well as the signatures of the two witnesses.",
+ "Simeon Levy passed away on Rosh Hodesh Av, 5767 (July 16, 2007). Upon his demise, the Nitva’ot argue that the disposition of their father’s assets should be executed pursuant to the alleged shtar matanah, which allegedly was halakhically validated on January 25, 2007. The Nitva’ot argue, pursuant to the alleged shtar matanah, that all items belonging to their father, including but not limited to manuscripts and books, are to be divided equally among all three children, except if specified otherwise in the alleged shtar matanah.",
+ "The Nitva’ot further claim that their initiation of probate proceedings in Surrogate Court does not fall under the category of arranging proceedings in arka’ot shel akum. Moreover, they claim that pursuant to New York case law, the court will not confirm an award of any arbitration panel concerning the distribution of the assets of a deceased’s estate. Since the Tove’a would be left with no means to enforce the beit din’s award, he would be forced to file in Brooklyn Supreme Court in any event. Second, the Nitva’ot filed in secular court out of fear that the Tove’a would abscond with items from their father’s assets. The same concern motivated the Nitva’ots’ decision to initiate a restraining order in Brooklyn Supreme Court that effectively blocked the sale of the property by the Tove’a without the authorization of the Nitva’ot. Hence, they argue, they are liable neither for remuneration of the Tove’a’s court and legal fees relating to the Brooklyn Supreme Court action, nor for the fees for the probate proceeding.",
+ "Summary of Submitted Testimony",
+ "R. Israel: R. Israel described the procedure that took place on January 25, 2007 at the testator’s home. R. Israel read the entire alleged shtar matanah to R. Levy in the presence of two kosher witnesses, Mr. Joseph Cohen and Mr. Aryeh Rabinowitz. At the conclusion of each clause, R. Israel asked the testator if the instructions conformed to his wishes. Although the typewritten alleged shtar matanah was reconfirmed, at the testator’s request, R. Israel added the following in his own handwriting:",
+ "1. In section three, illegible words that possibly read “and my daughters” were added.",
+ "2. In section five, the words “three to my sons-in-law” were added.",
+ "Upon completing the reading of the alleged shtar matanah and the addendum, the testator dated the document, accompanied by his personal signature, the two witnesses affixed their signatures, accompanied with their addresses, and a kinyan sudar was performed.",
+ "Mr. Joseph Cohen and Mr. Aryeh Rabinowitz: Both individuals profess and are known in their respective communities to be Orthodox Jews. Both attested to the aforementioned procedure as outlined by R. Israel. They understood the purpose of the procedure and testified that Simeon Levy was cognitively aware of what was transpiring at the time.",
+ "Dr. Springlass: Dr. Springlass was the deceased’s internist since 1982. Having observed Simeon Levy in October 2006, three months prior to his reading and signing of the addendum, Dr. Springlass attested that Simeon Levy had difficulties with speech and expression, was incontinent and physically weak, and required total care. He was taking Aricept, a medication intended to help dementia patients that generally does not impair their cognitive abilities. Although he was unable to create a legal document, he was able to follow simple commands and express his approval concerning a specific question posed to him, and he may have understood what he read.",
+ "In his testimony, Dr. Springlass writes: “A diagnosis of dementia indicates that the patient has impaired judgment, but even a demented patient could make a decision (yes or no) to a clear directive while retaining a certain level of comprehension.” In other words, a patient with mild, moderate, and even severe dementia is able to demonstrate capacity to make some decisions, including the execution of an advance directive whether to accept or deny certain medical treatments.",
+ "Mr. Miller, Mr. Simon, and Mr. Levine: All three individuals knew R. Simeon Levy, the gabbai (sexton) of their synagogue, for over two decades. All three testified that the deceased was an organized individual who handled the record keeping of the contributions to the synagogue, and they surmised that he was a successful businessman. Attesting to the deceased’s business acumen, Mr. Levine acknowledged that he would not have hesitated in asking him to be a partner in his personal business. Although the consensus among the three men is that R. Levy was frail and exhibited slurred speech in 2006, Mr. Miller and Mr. Levine pointed out that he was aware of his surroundings when in the synagogue. Furthermore, both Mr. Miller and Mr. Simon remarked that one could clearly see from his expression and demeanor whether he was content with a particular person honored by being called up to the Torah.",
+ "Mikhail Szold: In April 2006, prior to R. Levy’s admission to the hospital as well as during his hospital stay, Mr. Szold was an attendant for R. Levy during the night hours. Mr. Szold testified that R. Levy would fall asleep at the dinner table and was incontinent, unable to converse, and incapable of signing a legal document.",
+ "Discussion",
+ "1. The Authenticity of the Will",
+ "Based upon the cumulative evidence, it is our opinion that this typed document (the alleged shtar matanah) was prepared by R. Simeon Levy. His meticulous concern for detail is clearly demonstrated, for example, in sections 5 and 6 of his testamentary disposition. In addition to the will’s directives being reflective of the testator’s character and personality, the signature on the document is unassailably R. Simeon Levy’s signature. There is no evidence on record that Simeon Levy was coerced into writing this document. Quite to the contrary, he crafted this document (which he intended to be a shtar matanah) in total privacy from his family. By his own admission, the Tove’a knew of its existence many years before the execution of the addendum and lodged no protest of fraud. Hence, we reject the Tove’a’s contention that the alleged gift document is a fraud.",
+ "2. The Prohibition of Avurei Ahsanta",
+ "Assuming the authenticity of this testamentary disposition, is there any basis for the Tove’a’s contention that a beit din affirming this document will be engaging in avurei ahsanta, disinheriting the halakhic heirs? The Mishnah notes:",
+ "If a man assigns his estate to others and leaves nothing for his sons to inherit, what he has done is done [i.e., it is valid], but the spirit of the Sages shows no pleasure in him.",
+ "Although our Sages frowned upon and even warned against any disinheritance or diminution of inheritance assets from Torah heirs, numerous decisors have argued that assets may be diverted to others as long as a significant share – and according to some, even a nominal amount – is set aside for the Torah heirs. Although we are unaware of the deceased’s intent in choosing to divide his assets equally between his son and daughters, Halakhah sanctions such a distribution for the purpose of financially benefiting all of one’s children, rather than for egalitarian considerations.",
+ "3. Gifting During One’s Lifetime",
+ "Given that death divests the testator of title and automatically transfers title to the Torah heirs, how can one disinherit or diminish the assets of the Torah heirs during one’s lifetime? By making a gift in a halakhically effective manner during one’s lifetime – matnat bari, the gift of a healthy person – one can divest himself of his assets so that upon death, the title to the property will not automatically vest with the Torah heirs.",
+ "In order for a gift during one’s lifetime (donatio inter vivos) to be effective in the transfer of assets, certain terminology must be used; otherwise, as far as Halakhah is concerned, the document is invalid. Proper language indicating a gift transfer would be the following:",
+ "I hereby acknowledge by a perfect acknowledgment (hoda’ah gemurah) that I transferred a perfect gift, a gift of a healthy person, that is publicly known from today, and retain the right to revoke this gift during my lifetime until one moment before my demise the following assets …",
+ "In effect, the gift recipient receives title to the property, while the testator, similar to any donor, retains the right of the income derived from the property during his lifetime and has the authority to revoke or modify his gift until his demise. In this manner, the donor continues to retain possession of his assets during his lifetime and avoids becoming dependent upon others.",
+ "To formally transfer title, there is also a requirement to execute a kinyan sudar, a symbolic act of transfer by handing over a scarf or any other object by the beneficiary to the donor or the witnesses to the agreement, as a symbol that the object has been transferred.",
+ "The disadvantage in utilizing this kinyan is that it is effective in transferring property and chattel only. Currency, bank accounts, promissory notes, and mortgages cannot be transferred in this manner. Furthermore, kinyan sudar is ineffective in transferring assets that are neither in the donor’s possession nor in existence at the time the kinyan is made. Moreover, according to some decisors, this kinyan is ineffective if the language of transfer is “the person will take,” “will possess,” “will be distributed” and the like, as such language refers to a future time, not the present. Finally, a gift must be given openly, in a public fashion, lest the donor be parsimonious in his donation or give the same gift to another individual in public.",
+ "To overcome some of the limitations of a shtar matanah, many wills incorporate a hoda’ah, an acknowledgement utilizing the language of “I gave this object to … ,” ”this object belongs to …” or “I am obligated to … this amount of …” alongside the gift formula. The mere acknowledgment of the debt creates a legal title. Sometimes called “odita,” for this admission to be effective in transferring the assets, it must be executed either in writing, before witnesses, or before a beit din. If he complies with these formal requirements, a testator may transfer property that is not yet in existence or not in his present possession.",
+ "Because he wished to leave to his children bank accounts, stocks and bonds, land, buildings, manuscripts, books, silver items, and assets that would come into his possession in the future, R. Levy prepared a will in the form of a shtar matanah and hoda’ah. Did his will meet the requirements of a properly written shtar matanah and hoda’ah? If the will was defective, was the addendum prepared years later properly crafted, addressing the shortcomings of the original will?",
+ "A review of the original will indicates that the basic building blocks of a gift donation are absent. Instead of incorporating the conventional gift language, “I retain the right to revoke this gift during my lifetime until one moment before my demise,” the will reads, “to be effective from today and after my demise.” Moreover, the will was prepared in the privacy of R. Levy’s home, not in the presence of his family, and is bereft of language indicating that these gifts were being given in an open and public fashion. Finally, the continuous use of the language “shall be distributed” throughout the various sections of the will denotes a promise of future action, which is ineffective terminology for transferring assets.",
+ "Similarly, the implementation of “hoda’ah” in the opening words of the will – “my signature on this gift award shall serve as proof upon myself as one hundred witnesses, whereas that today … I begin the process of writing this will” – is faulty. In effect, the testator is utilizing a hoda’ah for the purpose of attesting to the timing of the disposition, not as a form of hithayvut, undertaking an obligation. Proper hoda’ah in this case would have been language to the effect of, “I acknowledge that I gave this object to … ,” which would then enable transfer of property. Finally, even if the proper hoda’ah language had been used by R. Levy, the absence of the performance of a kinyan or the absence of a kinyan executed in the presence of specified witnesses may have made this will invalid.",
+ "Thus, the original will drafted by R. Levy is problematic in terms of both gift-giving and obligating through admission to the transfer of certain assets. The outstanding question is whether the addendum that was prepared years later properly addressed the halakhic shortcomings of the original will.",
+ "Normative Halakhah is that improper formulation of a shtar can be remedied by performing a kinyan and inserting at the end of the document that an effective kinyan was made. We can then assume that the individual who was obligating himself in the original shtar wished to effect a transfer of assets. Accordingly, the incorporation of the language “from today and one moment prior to my death” in the addendum, linking the hoda’ah to the enumerated assets, as well as the performance of a kinyan and the signing of proper witnesses, ought to validate the original will, despite its flaws, and serve to properly transfer the assets to the sons and daughter. The will’s defects do not, per se, create doubts as to its veracity regarding the testator’s subjective wishes to execute the asset transfer.",
+ "4. Required Mental Capacity to Confirm an Existing Will",
+ "If a properly worded addendum and performance of a kinyan can validate a previously invalid will, we must address the question of whether the addendum in our case is valid, given R. Levy’s mental state at the time of its execution.",
+ "Although R. Levy may have been cognitively impaired to the extent that he could not execute a new halakhic document in January 2007 and is therefore considered a shoteh in that context, one who is deemed mentally incompetent in certain realms is not necessarily deemed globally impaired. People with dementia are often incorrectly assumed to be globally decisionally incapacitated, but certain halakhic views, as well as contemporary medical research, indicate otherwise.",
+ "It is our view that R. Levy, although suffering from occasional memory loss and mild disorientation, was sufficiently lucid and oriented (bar da’at) to understand that the personally prepared document enumerating his wishes of 1985 was being read to him in January 2007 and, upon the conclusion of its reading, to decide to sign it. This level of da’at was sufficient to reaffirm the original will.",
+ "To buttress this position, we invoke R. Yehezkel Landau’s ruling that “gadol omeid al gabav” – if a legally responsible individual supervises a shoteh’s execution of a divorce document, the get is valid. Our case involves a level of da’at more basic than that necessary to execute a get, and R. Levy’s reaffirmation should therefore be valid by way of a kal va-homer (a fortiori).",
+ "5. Rejecting the Validity of the Will",
+ "Our conclusion thus far may be challenged. If we accept the view that prior to the distribution of the inheritance assets, the “muhzakim,” the possessors of the estate, are the heirs as indicated by the Torah, then this sole Torah heir – R. Levy’s son – who will receive a smaller share in the inheritance due to his father’s will, can argue that he follows those opinions that would invalidate such a will, despite the later addendum. According to this argument, since the will did conform to hilkhot shtarot, the laws of legal documents, it cannot deprive him, the Torah heir and estate holder, of his rights, regardless of the addendum attesting to its validity. If the shtar matanah is not a valid legal document, we must find other avenues of accepting its content as obligatory.",
+ "6. “Mitzvah le-Kayem Divrei ha-Met” as Means of Validating the Will",
+ "Although R. Levy’s employment of terminology of gift-giving and admission in his original will falls short of creating a halakhically acceptable disposition of his assets, it may be argued that the will should be validated based upon the rule of “mitzvah le-kayem divrei ha-met,” the religious duty to carry out the wishes of the deceased. A testamentary disposition of assets, even if it does not fulfill the standards of hilkhot shtarot, certainly reflects “the wishes of the deceased.”",
+ "Although this rule has none of the attendant formalities of hilkhot shtarot, its scope is subject to debate and its applicability has been limited by a number of authorities. According to Rabbeinu Tam and those who subscribe to his position, in order for the rule to be applicable, the property or funds must be deposited by the donor with a third party (“hashlashah”) for the purpose of implementing the testator’s wishes, which was not the case here. Tosafot Ri ha-Zaken and Ramban argue that the rule is binding only if the testator clearly designates to the heirs a third party who will comply with the testator’s wishes, which was also not the case here. Finally, according to Rosh and others, the deposit with a third party must have been executed prior to the verbal directive in order for the rule to be applicable, which again was not the case here. Thus, “mitzvah le-kayem divrei ha-met” may not serve as the basis for affirming R. Levy’s will.",
+ "7. The Mitzvah of Kibbud Av as Means of Validating the Will",
+ "Despite the shortcomings in this testamentary disposition based upon hilkhot shtarot and its failure to meet the criteria for “mitzvah le-kayem divrei ha-met” due to the absence of hashlashah, it is our opinion that the children’s compliance with the instructions of this document is required based on the mitzvot of kibbud av, honoring one’s father, and mora av, filial reverence.",
+ "Mora av dictates that a son may neither stand nor sit in his father’s place nor contradict his words. Fundamentally, a son must refrain from diminishing the dignity, identity, or self-worth of his father. In fact, the centrality of mora resonates in the words of R. Levy, who wrote in his will:",
+ "And by utilizing every possible expression of appeal, I request that there shall be no differences of opinion on any matter of the matters, but that everything shall be peaceful and unanimous, for this is my dignity, the dignity of the family, and the dignity of your mother.",
+ "Thus, although the gift disposition and accompanying addendum may not constitute a valid gift according to the laws of shtarot or by way of mitzvah le-kayem divrei ha-met, the deceased’s concern for his own dignity and the paramount significance of avoiding “kalon avihem,” embarrassment to the parties’ father in the distribution of his assets, propels this panel to affirm this document, the wishes of R. Levy, and to transfer the assets as established in the will.",
+ "As such, the validity of the addendum executed on January 25, 2007 is not relevant, and we need only address the status of the handwritten clarifications (in provisions 7 and 10) as incorporated in the shtar matanah at that juncture in time.",
+ "8. Deciphering the Provisions of the Will",
+ "Section three of the will reads: “The cemetery shall remain the possession of my son,” and a handwritten clarification possibly reads “and my daughters.” We find that this addition, which seems to indicate that R. Levy changed his mind regarding the distribution of this asset, is unacceptable. According to Halakhah, any incorporation of a handwritten change must be followed by either the depositor’s signature or initials or another kiyum as certification of the emendation. Neither R. Levy’s signature nor his initials are annexed to this handwritten change, and in the case of doubt (safek) regarding the intent of the deceased, we do not remove an asset from the Torah heirs, as they are the presumptive heirs.",
+ "Regarding the validity of the handwritten clarification in provision five, which now reads “three to my sons-in-law,” R. Levy’s presumed intent was to distribute three pages of the Moreh Nevukhim to each of his sons-in-law. We find this addition to be acceptable based upon common usage (lashon bnei adam).",
+ "9. The Prohibition of Lifneihem ve-Lo Lifnei Arka’ot shel Akum",
+ "The prohibition of lifneihem ve-lo lifnei arka’ot shel akum proscribes Jews from litigating their disputes in an adversarial proceeding in civil court. Matters that are administrative in nature, such as confirming an award of a beit din or probating an uncontested testamentary disposition, do not fall within the parameters of this prohibition. However, in a contested testamentary disposition, there must be a determination of how to divide up the assets by a beit din prior to recourse to a probate proceeding; initiating a probate proceeding regarding a contested testamentary disposition prior to a beit din ruling entails a violation of the prohibition of recourse to arka’ot shel akum.",
+ "Should one party submit a claim in civil court in violation of the prohibition of litigating in arka’ot shel akum, resulting in the incurrence of expenses, such as legal and court fees, to the other party, upon proving his outlay of expenses, the party who submitted the claim is obligated to pay for all these expenses.",
+ "However, if a party institutes proceedings in the form of injunctive relief (ikul) in civil court for the purpose of rescuing funds that otherwise may be lost to him, while some authorities require prior permission of beit din, others argue that if “time is of the essence,” there is no violation of lifneihem ve-lo lifnei arka’ot shel akum (either le-khathila or only be-dieved). Under such circumstances, the other party would not be remunerated for his court and legal fees.",
+ "A “heter arka’ot,” a beit din’s permission to litigate a matter in civil court, does not mean that one is allowed to accept every award issued in such a court. If a Jew receives a monetary award in civil court, he may accept it only if Torah law would have sanctioned such an award; should he accept such an award when Torah law would not permit it, he is considered a thief. Hence, pursuant to the matters within its jurisdiction as expressed in the signed arbitration agreement, this beit din is the final arbiter regarding the provisions of this document and the deceased’s distribution of his assets, and the son and daughters of the late R. Levy cannot accept an award in Surrogate’s Court that is in excess of the award mandated by this decision.",
+ "Decision",
+ "We hereby order, pursuant to our authority under the signed arbitration agreement, that R. Levy’s assets be divided up between his son and daughters in accordance with his wishes as expressed in his gift document dated Adar 10, 5745 (March 3, 1985) and the handwritten clarification of provision number five of January 25, 2007.",
+ "Any assets that the gift document does not refer to shall be allocated to the son, the yoresh mi-de-oraita (inheritor according to Torah law). Should the three children agree to divide any asset or assets differently from the directive of this decision, the children’s wishes will be determinative and override the ruling of this beit din, as well as the wishes expressed in their father’s gift document.",
+ "Pursuant to the above",
+ "1. All seforim that belonged to R. Simeon Levy are to be divided up equally according to their value among his son and daughters.",
+ "2. All seforim belonging to R. Levy that will appear in the future are to be divided up equally according to their value among his son and daughters.",
+ "3. All of the silverware items from R Levy’s home shall be distributed equally according to their value among his son and daughters.",
+ "4. If any seforim or silver items are missing, and upon submission of evidence it is demonstrated that the possessor is either the plaintiff or one of the defendants, the item will be returned and allocated as per the foregoing. If the item has been sold to a third party, the seller of the item to the third party shall pay the value of the item to the other siblings pursuant to the foregoing.",
+ "5. Each son-in-law will receive three pages of the manuscript of Moreh Nevukhim.",
+ "6. The cemetery plot shall remain in the possession of Reuven Levy.",
+ "7. All the funds in the banks, stocks, and bonds shall be distributed equally, according to their value, between his son and daughters.",
+ "8. The proceeds from the sale of the two houses in Staten Island shall be distributed among his son and daughters.",
+ "9. As of the date of the issuance of this decision, Mr. Reuven Levy has failed to submit the name(s) and address(es) of the person(s) who posses estate items given by him without the consent of his siblings or this beit din. Accordingly, for bizayon beit ha-din (denigrating a beit din), Mr. Reuven Levy is fined $10,000, with each sibling to receive $5,000 from him.",
+ "With the handing down of this psak din, may menuhat ha-nefesh be restored to your personal lives and may shalom reign between you and your families.",
+ "The obligations set forth herein shall be enforceable in any court of competent jurisdiction, in accordance with the rules and procedures of the beit din and the arbitration agreement. Any request for modification of this award by the arbitration panel shall be in accordance with the rules and procedures of the beit din and the arbitration agreement of the parties.",
+ "All of the provisions of this order shall take effect immediately."
+ ],
+ "g) A Revocable Living Trust Agreement": [
+ "G. A Revocable Living Trust Agreement
Motel Rabinowitz v. Rochel Mayer",
+ "On May 13, 2007, Yosef Rabinowitz (“the Settlor”) created a living trust, a legal document intended to ensure that one’s assets are distributed to his beneficiaries according to his wishes upon death. The Settlor chose his son Motel (Tove’a) to manage the trust and designated as the beneficiaries of the trust his children, Rochel Mayer (Nitva’at) and the Tove’a.",
+ "On June 11, 2009, the Settlor passed away. Upon his demise, pursuant to the trust agreement, his estate was to be transferred to the beneficiaries, namely the Tove’a and Nitva’at. Attempting to prevent the transfer of assets to the Nitva’at, Tove’a summoned the Nitva’at to beit din.",
+ "Tove’a’s Claims",
+ "The Tove’a argues that the provision of the trust agreement which provides that his father’s estate be divided up equally between his children is in violation of the halakhic rules of yerushah (inheritance), according to which such assets belong to the son. The Tove’a is the “yoresh me-de-oraita,” the sole Torah heir to his father’s assets, and should the beit din affirm the trust agreement, it will be engaging in “avurei ahsanta,” disinheriting the only heir recognized as such by the Torah. Consequently, the Tove’a should inherit the entire estate.",
+ "Since the Nitva’at was firstborn of the family, no claim of bekhorah (right of the firstborn male to a double portion) is advanced by the Tove’a.",
+ "Nitva’at’s Claims",
+ "Given that her father divided up the estate equally between his children, we should respect the deceased wishes as a testator and a father (kibbud av, honoring one’s father), and she is therefore entitled to half of the estate.",
+ "Moreover, during her father’s lifetime, the Nitva’at claims that her brother, as co-trustee of the estate, diverted $200,000 from the estate and deposited said monies in his personal bank accounts. Consequently, in addition to her share of 50% of the estate currently in the trust, she is seeking recovery of $100,000 of the diverted funds.",
+ "Discussion",
+ "1. The Torah’s Order of Inheritance",
+ "A person can only dispose of his property during his lifetime; upon his demise, human ownership ceases and halakhic succession law determines who will inherit his estate. This process of inheritance is automatic, as Rabbeinu Gershom notes:",
+ "No one benefits man, but rather he automatically receives his ancestor’s inheritance.",
+ "Thus, there is no transfer of assets between the testator and his heirs through the implementation of a kinyan, a symbolic act of transfer. As the Talmud states:",
+ "There is no shtar (halakhic-legal document) after death.",
+ "Thus, the late Dayan Yitzhak Grunfeld of London, England writes:",
+ "The logical consequence of this is that any money in the hands of a beneficiary of a will under the law of the land which, as far as Jewish religious law is concerned, belongs to a different person, namely, the proper heir in accordance with the Halakhah of inheritance, has to be returned to that heir.",
+ "Pursuant to the Mishnah, upon demise of the deceased, the order of succession is as follows: (1) the sons (2) their descendants (3) the daughters (4) their descendants (5) the father (6) the brothers (7) their descendants (8) the sisters (9) their descendants (10) the grandfather (11) the brothers of the father (12) their descendants (13) the sisters of the father (14) their descendants, etc.",
+ "In the context of its discussion of the halakhot of succession, the Torah concludes by stating that the order is “hukat mishpat” (a statute of judgment). The description of hilkhot yerushah as a “hok” implies, among other things, that these halakhot are immutable, even though they relate to monetary matters. Thus, although Halakhah permits individuals to determine the parameters of their monetary relationships, provided that the arrangement complies with a proper form (kinyan) and does not violate any prohibitions (such as theft or ribbit), hilkhot yerushah is an exception. As Rambam states:",
+ "A man cannot cause his estate to descend to someone who is not potentially his heir; nor can he deprive the heir of the inheritance even though this is a monetary matter. For it says … “And it shall be for the children of Israel a statute of judgment” … This means that this statute cannot be altered and no stipulation can affect it.",
+ "In other words, stipulating that assets are to be distributed to a non-halakhic heir falls in the category of “matneh al mah she-katuv ba-Torah.” Such an arrangement is null and void and one is prohibited to execute it. Barring any halakhically-sanctioned arrangement allowing assets of an estate to be distributed to non-Torah heirs, numerous authorities invalidate a testamentary gift document prepared by an attorney and recognized by a civil court.",
+ "Based upon the foregoing, it would seem that the Tove’a, the Torah heir, is entitled to the entire estate.",
+ "2. The Parameters of “Mitzvah le-Kayem Divrei ha-Met”",
+ "In the case at hand, a trust was created by the Settlor, namely the father, who entrusted during his lifetime all of his property to the Tove’a, the trustee. The Tove’a, who holds legal title to the property, is obligated to hold and manage the property for the beneficiaries, the Nitva’at and himself. As a trustee, he owes a fiduciary duty to manage the trust in the best interests of the beneficiaries. As provided by the agreement, the Settlor and the trustee may lease, mortgage, or reduce the ownership rights over all or part of the trust property. After the demise of the Settlor, the Tove’a shall distribute the assets of the trust to the beneficiaries. Pursuant to the terms of the agreement, the trust is revocable; during his lifetime, the Settlor may revoke the trust agreement in whole or in part. In effect, by the creation of this trust, the assets have been transferred out of the Settlor’s probate estate, thereby reducing or eliminating taxation of property later in the hands of the beneficiaries or their estates.",
+ "Is the implementation of a revocable living trust permissible, or is it a contravention of “avurei ahsanta,” disinheriting a Torah heir? Since the Settlor had a right of revocation of the trust agreement, do we conclude that he retained title to his assets and that transferring these assets to a trustee would therefore remain subject to the Torah order of succession?",
+ "The Talmud writes that there is a “mitzvah le-kayem divrei ha-met,” a duty to comply with the wishes of the deceased. According to Ri ha-Zaken and Ramban, if the testator expressed a clear directive to a shalish (a third-party) that he desires to give an asset to a particular individual upon his death, his wish should be complied with. According to some legists, even in the absence of asset transfer between the testator and the shalish and/or execution of a kinyan (a symbolic act of transfer), the verbal commitment constitutes a neder (vow) or is akin to a neder, which serves as the grounds for being obligated to comply with this mitzvah. Others argue that the testator’s instructions must be recorded in a shtar (halakhic document) in order to attest to the seriousness of his desire to transfer his assets. If the hashlashah (a directive to entrust assets or an actual deposit with a third party) transpired for safekeeping or any other reason unrelated to estate directives or if the funds were deposited after the issuance of a will, the “mitzvah le-kayem divrei ha-met” is not fulfilled.",
+ "However, the communication of such a directive or the execution of a shtar with a shalish suffices only according to certain authorities. According to Rabbeinu Tam, as codified by Shulhan Arukh, the actual assets must be deposited with a shalish who will have control over these assets for the express purpose of complying with the wishes of the departed, with clear instructions regarding how these assets must be allocated upon the testator’s demise. Others contend that absent actual possession of the estate assets, the control of these assets for the purpose of actualizing the testator’s wishes suffices to enable the “mitzvah le-kayem divrei ha-met.”",
+ "These assets are under the shalish’s control; the beneficiaries do not have ownership rights. Thus, should the property remain in the shalish’s possession and the testator subsequently passes away, the assets will be transferred to his designated beneficiaries and are not subject to the halakhot of the order of Torah succession. Accordingly, there is no violation of the prohibition of “avurei ahsanta.”",
+ "Upon establishment of the trust, the scope of this instrument encompasses only assets that were in existence at the time of the trust’s formation. Consequently, assets acquired later or not mentioned in the trust agreement are not governed by the trust. To address these assets, a Settlor may execute a “pour over will,” which will transfer assets into the trust after the Settlor’s demise. However, since Halakhah does recognize any transfer of property after death, such an arrangement is halakhically ineffective. Moreover, Halakhah dictates that in general, assets that are not yet in existence cannot be transferred at the time a disposition is prepared. Accordingly, any assets acquired over the years, before the Settlor’s death, will not be transferred into the trust. However, many authorities invoke the “mitzvah le-kayem divrei ha-met” as grounds for justifying the inclusion of future assets into the trust.",
+ "3. The Trustee as a Shalish",
+ "As explained above, a revocable living trust is a legal document intended to ensure that a person’s assets are distributed to his beneficiaries according to his wishes upon his death. In creating a living trust during his lifetime, the Settlor actually transfers ownership to the trust or the trustee and then selects a trustee(s) to manage it, but he retains the right to revoke the trust agreement and he may use the assets and derive profit from them.",
+ "Without addressing whether Halakhah recognizes the legal fiction of a trust instrument, the function of the trustee is clearly identical to that of a shalish. Both individuals are duty bound, either halakhically or legally, to manage the assets for the beneficiaries until the testator’s death. Upon the testator’s demise, the assets are to be transferred to the designated heirs. In both the instances of the hashlashah and that of a trust, the testator and Settlor are authorized to revoke the appointment of the shalish or trustee at any time. Thus, despite the fact that both agreements are subject to revocation, the net result of the appointment of a shalish or a trustee to manage assets for the benefit of future heirs is that the property under their control will eventually belong to the beneficiaries, rather than reverting to the Torah heirs upon the testator’s death.",
+ "In addressing the trust instrument that provides for a Settlor and third party as co-trustees, R. Feivel Cohen rules:",
+ "Although the Torah does not recognize the “gavra” (the legal entity) known as a trust, if there is a co-trustee who can manage the assets for the family, it is equivalent to hashlashah with a third party and enables the fulfillment of the halakhah of “mitzvah le-kayem divrei ha-met.”",
+ "Setting aside the issue of whether Halakhah recognizes the institution of a trust, the arrangement in the present case fulfills the criteria of hashlashah according to all authorities. According to Ri ha-Zaken and Ramban, the very appointment of a trustee to manage the estate in accordance with the Settlor’s wishes and to transfer his assets to the designated beneficiaries after his death is a sufficient form of hashlashah, even in the absence of clear instructions. Moreover, since the trustee is one of the designated beneficiaries and he has control of the assets, even though the actual assets are not in his hands, Rabbeinu Tam and Shulhan Arukh would agree that there are sufficient grounds to implement the duty to fulfill the deceased’s wishes.",
+ "There are far reaching implications of this analysis, as it does not simply offer grounds for viewing a trust arrangement as a mode of hashlashah, but also demonstrates the concept of a split ownership of property. The Mishnah, Talmud, and restatements recognize the possibility that a seller will sell something and retain a portion of it for himself by stipulating a reserve clause (shiur). For example, one can sell a tree while retaining the right to any fruits growing on the tree or one can sell an apartment and retain the right to occupy it. Applying the concept of a reserve clause to a testator’s estate distribution, R. Z. Goldberg explains, is an illustration of transferring “the actual asset today and the fruits after death.” Thus, the testator transfers ownership to the shalish today, yet reserves the right to continue to use those very assets until his death, upon which the recipient owns the fruits. In effect, there is a bifurcation of ownership between the testator (and by extension the Settlor), who continues to retain use of the assets, and the shalish (and by extension the trustee), who receives ownership of the assets.",
+ "The transfer of ownership to another party – in our case, to the beneficiaries – is contingent upon the fact that the ownership of the seller – in our case the Settlor – manifests itself in his ability to use the asset. As Hazon Ish states:",
+ "It is impossible that the giver retain it for himself by only protesting that the recipient refrain from using it.",
+ "In other words, the seller’s reserve clause cannot simply direct the buyer to refrain from using the item. Rather, the seller (and by extension the Settlor) must retain ownership, which is limited to his right of usage.",
+ "However, whereas the ownership of the testator/Settlor is limited to usage, the ownership of the shalish/trustee is not limited to his right of usage for the benefit of the heirs, but rather to his empowerment to transfer the assets to the heirs upon the demise of the testator/Settlor. Given the right of usage of the testator/Settlor, the shalish/trustee is proscribed from selling the asset(s) to a third party.",
+ "The concept of a bifurcation of ownership was examined in the Talmud regarding a father who decided to disinherit his wayward son. Although he disapproved of his son’s repeated acts of thievery and desired to disinherit him, he did not want to infringe upon the inheritance rights of his grandson. Therefore, the father stipulated, “Let my son acquire the property, and should my grandson become a Torah scholar, let him acquire it.” Whether such “acquiring on the condition to convey” is effective was subject to debate. The Talmud resolves that the son could have limited ownership rights, which expressed itself in his acquisition of the estate and his empowerment to transfer these assets to the grandson, who would become the owner. Similarly, the shalish/trustee is duly authorized to transfer assets to the designated heirs upon the death of the testator/Settlor.",
+ "The parameters of the ownership of a shalish/trustee were scrutinized in two Israeli Rabbinical Court decisions. In one case, a testator wished to distribute his estate to Torah and philanthropic institutions upon his death. He therefore established a religious trust (hekdesh) and appointed trustees who were authorized to distribute these assets in a discretionary fashion. In the trust agreement, the testator requested that those institutions which had already commenced in building or received a promise from him that he would participate in their construction would receive funding prior to other institutions recorded in his will as potential recipients in the distribution of his estate. After his demise, a yeshiva claimed that the testator had promised to assist them monetarily in the construction of their institution and that it was therefore entitled to receive monies from the estate. The trustees argued that they had a right to benefit from the estate and they were unaware of such a promise; consequently, they were unwilling to distribute funds to the yeshiva.",
+ "The parties brought their dispute to the Petach Tikvah Regional Rabbinical Beth Din for resolution. Upon deliberation, the beit din concluded that the trustees were empowered to resolve this matter and they rightfully declined the yeshiva’s request. The yeshiva then appealed to the Supreme Rabbinical Court in Jerusalem. Writing for the majority, R. Elyashiv observes:",
+ "From the content of the testamentary disposition, from its language and meaning, it is crystal clear that he never intended and had not even contemplated to transfer his assets to the trustees so that they should have full ownership in his assets … He simply wanted to guarantee that the will would be valid and that Torah and hessed institutions would receive their due portion … The extent of their acquisition did not extend beyond “acquiring on the condition to convey,” which is effective.",
+ "In the trust agreement, the Settlor of the religious trust stipulated that the estate assets were to be distributed to Torah/hessed institutions that had already embarked on construction or those to whom the Settlor had promised to give funds. Given that a promise was communicated to this yeshiva by the Settlor, the trustees were bereft of authority to use the assets for their own benefit and deny the earmarked funds to the yeshiva. The trustees’ scope of authority is limited to complying with the Settlor’s guidelines regarding the potential candidates for asset distribution, just as the rights of the wayward son mentioned in the Talmud were characterized as “acquiring, on the condition to convey.”",
+ "Thus, despite the testator’s right of revocation, the shalish’s limited ownership rights serve as the vehicle for fulfilling the duty of respecting the wishes of the departed, bypassing in a halakhically legitimate fashion the Torah order of yerushah. The existence of a revocable trust instrument providing for a bifurcation in ownership and use serves as a vehicle for implementing the wishes of the departed and allows the Nitva’at to receive a 50% share in her father’s estate, including assets which were acquired by the Settlor after the trust’s formation.",
+ "3. The Validation of a Will Based upon Kibbud Av",
+ "Additionally, the Nitva’at argues that her entitlement is a concrete expression of the fulfillment of the mitzvah of kibbud av. At first glance, it would seem that this argument lacks foundation. As we know, in situations where compliance with a parental desire violates a divine imperative, we affirm the halakhic norm. In our situation, it appears that the father’s request to distribute a portion of his estate to the Nitva’at in effect violates the Torah order of succession, which mandates that the entire estate be inherited by the Tove’a.",
+ "However, we do not assume that the father intended to bypass the hilkhot yerushah, and compliance with his wishes is therefore a fulfillment of kibbud av. Moreover, as we have noted, as long as the Torah heir receives a portion of the estate, there is no violation of the prohibition of “avurei ahsanta,” and there is therefore not contradiction in our case between kibbud av and the Torah requirement.",
+ "Nevertheless, one might argue that the mitzvah of kibbud av should be inapplicable in our case. While a child is obligated to support his parents, he may refrain from such support if he incurs a financial loss as a result. In our scenario, kibbud av would entail financial loss for the son, who would have to share his yerushah with his sister, and he should therefore be exempt from the requirement. R. Akiva Eiger, R. Yair Bachrach, and others indeed note this safek (doubt) regarding whether a testamentary disposition that involves a son’s loss should be affirmed based on kibbud av, but they conclude that compliance with the testator’s wishes is based upon kibbud av.",
+ "This conclusion would equally apply to a secular will. Despite the various problems posed by validating a civil will – or, for that matter, a halakhic will that has been drafted in a questionable fashion – there are authorities who will validate these documents based upon kibbud av.",
+ "In sum, based upon the execution of a trust agreement and in compliance with kibbud av, we affirm the Nitva’at’s right to receive a 50% share of her father’s estate.",
+ "4. The Trustee as a Shomer",
+ "The Nitva’at contends that the Tove’a, in his capacity as a trustee, misappropriated some of the trust’s assets, and she is therefore entitled to recover half of the absconded assets as her rightful share in the estate, as provided by the terms of the trust agreement. The trustee’s consent to manage the estate’s assets places him in the category of a shomer (bailor). Implicit in this arrangement is that the Tove’a is obligated to guard the assets and that the Tove’a accepts this responsibility.",
+ "Some argue, however, that since a trust is a legal fiction, it should be treated like “hekdesh.” This originally referred to an administrative body that collected animals and money earmarked as donations for the maintenance and the sacrificial service in the Holy Temple. Upon consecration, these assets, which were originally the donor’s, essentially were transferred to God’s ownership. Although the Temple gizbar (treasurer) was charged with managing these assets and representing the Temple’s interests, there was a distinction between ownership and management (similar to the idea of a modern day corporation). The Mekhilta states:",
+ "“When a person gives his friend money or objects to guard” – the verse states “his friend” – his friend, and not hekdesh.",
+ "Bailment only applies to property given to individuals, and hekdesh is therefore not subject to its rules. If a bailment has been donated to hekdesh, the laws of bailment are inapplicable to it. Analogously, the entrustment of assets to a trustee for the benefit of a trust, an independent legal entity, should not be subject to the laws of bailment.",
+ "However, in our issue at bar, we are dealing with a revocable trust, and therefore the right of revocation resides with the Settlor. Consequently, even though a trust has been established, there is an identifiable human being, the Settlor, who is the mafkid (bailee). Consequently, the Tove’a, as trustee, is to be construed as a shomer. Moreover, given the fact the Tove’a receives remuneration for his services, whether a trust is subject to the laws of bailment is irrelevant; he is a po��el (a worker), and is therefore accorded the responsibility of a shomer.",
+ "Furthermore, as metzuvim, members of a covenant-faith community, we are instructed not only innocent, but also to appear so in the eyes of our fellowmen. If this applies to every individual, it certainly applies to a trustee who manages an estate on behalf of beneficiaries. In our case, in which the Tove’a is a potential heir as well, the need to be above suspicion is of paramount significance.",
+ "This relationship of trust is not limited to the requirement of transparency, but equally extends to a proscription against any misappropriation of a beneficiary’s asset. As a shomer, the trustee cannot acquire any of the trust assets for himself; should he acquire them, he is a thief. As a trustee, his limited ownership rights serve as a means to facilitate the management of an estate ensconced in a trust instrument, rather than a vehicle toward his self-aggrandizement.",
+ "Consequently, due to the Tove’a’s misappropriation of trust funds, the Nitva’at is entitled to receive $100,000 from the Tove’a.",
+ "Decision",
+ "1. The Nitva’at is entitled to receive 50% of the assets of her father’s estate.",
+ "2. The Tove’a is hereby obligated to pay the Nitva’at $100,000."
+ ]
+ }
+ }
+ },
+ "versions": [
+ [
+ "Rabbinic Authority: The Vision and the Reality, Urim Publications. Jerusalem, 2013",
+ "https://www.nli.org.il/he/books/NNL_ALEPH997009861531405171/NLI"
+ ]
+ ],
+ "heTitle": "סמכות רבנית כרך א",
+ "categories": [
+ "Halakhah",
+ "Modern",
+ "Rabbinic Authority Series"
+ ],
+ "schema": {
+ "heTitle": "סמכות רבנית כרך א",
+ "enTitle": "Rabbinic Authority I",
+ "key": "Rabbinic Authority I",
+ "nodes": [
+ {
+ "heTitle": "פתח דבר",
+ "enTitle": "Foreword"
+ },
+ {
+ "heTitle": "פתח דבר",
+ "enTitle": "Preface"
+ },
+ {
+ "heTitle": "חלק א",
+ "enTitle": "Part I; Rabbinic Authority; The Vision",
+ "nodes": [
+ {
+ "heTitle": "פרק א",
+ "enTitle": "Chapter 1; Towards Defining the Concept of Rabbinic Authority; A Contemporary Analysis"
+ },
+ {
+ "heTitle": "פרק ב",
+ "enTitle": "Chapter 2; The Business Judgment Rule in the Corporate World; A Comparative Approach"
+ },
+ {
+ "heTitle": "פרק ג",
+ "enTitle": "Chapter 3; Recovery for Infliction of Emotional Distress; Toward Relief for the Agunah"
+ },
+ {
+ "heTitle": "הוספה א",
+ "enTitle": "Addendum A"
+ },
+ {
+ "heTitle": "הוספה ב",
+ "enTitle": "Addendum B"
+ }
+ ]
+ },
+ {
+ "heTitle": "חלק ב",
+ "enTitle": "Part II; Rabbinic Authority; The Reality",
+ "nodes": [
+ {
+ "heTitle": "פרק ד",
+ "enTitle": "Chapter 4; Decisions in Even haEzer",
+ "nodes": [
+ {
+ "heTitle": "א",
+ "enTitle": "a) Division of Marital Assets upon Divorce"
+ },
+ {
+ "heTitle": "ב",
+ "enTitle": "b) Spousal Abuse as Grounds for Obligating a Get"
+ },
+ {
+ "heTitle": "ג",
+ "enTitle": "c) A Father's Duty of Child Support towards His Estranged Children"
+ }
+ ]
+ },
+ {
+ "heTitle": "פרק ה",
+ "enTitle": "Chapter 5; Decisions in Hoshen Mishpat",
+ "nodes": [
+ {
+ "heTitle": "א",
+ "enTitle": "a) Tenure Rights and Severance Pay"
+ },
+ {
+ "heTitle": "ב",
+ "enTitle": "b) The Status of a Promissory Note"
+ },
+ {
+ "heTitle": "ג",
+ "enTitle": "c) Rabbinic Contracts"
+ },
+ {
+ "heTitle": "ד",
+ "enTitle": "d) Self Dealing in the Not for Profit Boardroom"
+ },
+ {
+ "heTitle": "ה",
+ "enTitle": "e) Real Estate Brokerage Fee Commission"
+ },
+ {
+ "heTitle": "ו",
+ "enTitle": "f) Drafting a Halakhic Will"
+ },
+ {
+ "heTitle": "ז",
+ "enTitle": "g) A Revocable Living Trust Agreement"
+ }
+ ]
+ }
+ ]
+ }
+ ]
+ }
+}
\ No newline at end of file