diff --git "a/json/Halakhah/Modern/Rabbinic Authority Series/Rabbinic Authority III/English/merged.json" "b/json/Halakhah/Modern/Rabbinic Authority Series/Rabbinic Authority III/English/merged.json"
new file mode 100644--- /dev/null
+++ "b/json/Halakhah/Modern/Rabbinic Authority Series/Rabbinic Authority III/English/merged.json"
@@ -0,0 +1,1126 @@
+{
+ "title": "Rabbinic Authority III",
+ "language": "en",
+ "versionTitle": "merged",
+ "versionSource": "https://www.sefaria.org/Rabbinic_Authority_III",
+ "text": {
+ "Preface": [
+ "The present volume is the third in a series of volumes intended as an introduction to a subject perhaps unfamiliar to many—rabbinic authority in our halakhic sources. The subtitle, “The Vision and the Reality”, points to the themes being addressed in this work.",
+ "In addressing the “halakhic vision” of rabbinic authority, we will primarily focus our attention upon the issue of the modern-day agunah, the wife who is unable to receive her get due her husband’s recalcitrance.",
+ "Some of our lines of inquiry will be the following: How does Halakhah address the consensual nature of halakhic divorce? Under what conditions may a beit din obligate a husband to give a get unconditionally? In the event of a husband’s continued refusal to give a get, what ammunition is in the halakhic arsenal to address this phenomenon, a matter that our community has been grappling with for many years? Obviously, for those rabbinic authorities and communities who endorse the execution of a prenuptial agreement which obligates a spouse to give or receive a get in a reasonable amount of time after the spouse requests it a divorcing couple in these communities may find solace in the fact that generally the matter of igun (loosely translated—“being chained”—i.e. via the withholding of a get) will not rear its head. However, for the thousands of couples who have been married for decades without the execution of a prenuptial agreement and for those who continue to be married without availing themselves of this agreement, either out of ignorance that such a panacea exists or due to the fact that their rabbinic decisors reject their implementation, what do we have in our halakhic stockpile for one of these wives to wage a war against a husband’s refusal to give a get?",
+ "May a beit din direct the imposition of social and economic isolating measures introduced in twelfth century Ashkenaz known in halakhic parlance as “harhakot of Rabbeinu Tam”? Must a beit din have grounds to obligate a get (“hiyuv le-garesh”) prior to invoking these measures or is it sufficient to render a ruling of recommending a husband to give a get (“mitzvah le-garesh”)? Are there grounds to authorize a wife to litigate her monetary claims in civil court, which may result in a husband’s willingness to give a get? Upon discovery that there were no eidim (witnesses) under the huppah during the time of kiddushin who heard the husband reciting “harei at mekudeshet li . . .” and witnessed the mesirah (the husband placing a ring on his prospective wife’s finger), or that an eid was (or both eidim were) ineligible to serve as a witness, may a ruling be handed down by a beit din composed or three rabbis or one rabbinic authority to be mevatel the kiddushin (loosely translated as “voiding the marriage”) and thereby obviate the requirement for a get? Can the invalidation of a qualified eid kiddushin result in bittul kiddushin? If a husband intentionally or unintentionally fails to disclose to his prospective spouse prior to marriage that he had a “mum gadol” (a major flaw) such as being impotent, unwilling to have children, gay, mentally dysfunctional, or being a criminal, are there grounds to void such a marriage and under what conditions can it be done? May a marriage be voided due to the husband’s behavior after the onset of the marriage based upon an umdana (the assessed expectation) that had she known prior to the marriage that he would conduct himself in a certain fashion, she never would have married him? May the marriage of a modern day agunah be voided based upon relying upon a minority halakhic view? Since in many instances voiding a marriage of a modern-day agunah entails the suspension of the biblical status of the woman as an eishit ish, a married woman can one rely upon a minority opinion to free her without a get? Prior to voiding a marriage, does the rabbi or beit din require a consultation with “a second opinion(s)”?",
+ "Under what conditions, if any, is a beit din empowered to give a get on behalf of a husband who has not given instructions to give one to his wife? There is well-trodden mesorah (tradition) that, in accordance with certain Poskim (halakhic authorities), a beit din will confer the benefit of a get upon the husband in the scenario of an adulterous or apostate wife who refuses to receive a get. Does such a mesorah exist regarding an agunah where the husband “stands and screams” that he refuses to give a get? In the absence of a mesorah, can one present a halakhically cogent basis for freeing an agunah via the vehicle of her receiving a get from a beit din due to the fact that it is an absolute benefit of the husband to give it?",
+ "The “reality” memorialized in various beit din judgments as well as “the vision” addresses all of these questions. Though an infrequent occurrence, we do realize that the matter of igun extends itself to a situation where a wife refuses to receive a get. Consequently, one of our beit din rulings responds to this issue as well.",
+ "As our limmud (our study) shows, in both “the vision” and “the reality” components of our presentation there exist divergent halakhic traditions to all of the aforementioned questions. The kiddushin (betrothal) relationship establishes a personal status, namely, that of a mekudeshet (a woman designated for a particular man and prohibited to all others). The establishment of this personal status, known as ishut, renders both spouses subject to various prohibitions, e.g. sexual relations with various relatives become prohibited. Whereas “hafka’at kiddushin” as used in contemporary parlance entails retroactively annulling the marriage of a recalcitrant husband who refuses to give a get after being directed to do so by a beit din, a beit din engaging in bittul kiddushin entails one’s readiness to nullify the issur of eishet ish (the prohibition of being a married woman). Hafka’at kiddushin, on the one hand, assumes that the matrimonial tie was created. On the other hand, bittul kiddushin presumes that the marital bond was never established.",
+ "Whereas a refusal to invoke bittul kiddushin means that the issur continues to exist, the implementation of bittul means that the issur no longer exists and the wife, in the case of an agunah, is permitted to remarry without the issuance of a get. On the one hand, prohibiting bittul kiddushin in part is due to the lurking fear that the woman is an eishit ish and therefore should we permit her to remarry she would be living in sin and should she bear children, her offspring may be mamzerim (halakhic bastards). Those who sanction bittul kiddushin, on the other hand, do so in part because of the fact that we want to prevent mamzerut, lest the agunah remarry without halakhic permission.",
+ "As such, upon studying the matter of “igun” we have entered into “the universe of issurim” (prohibitions). Consequently, it is unsurprising to find the following posture of R. Aharon Walkin, an early twentieth century arbiter. A sina qua non to create the ma’aseh kiddushin (the act of halakhic marriage) is the presence of two adult Jewish males who are Torah observant, not blood relatives to either the man or the woman, witness the man reciting “harei at mekudeshet li betaba’at zo, kedat Moshe ve-Yisrael”, observe the man transferring a ring to the woman, and see her acceptance of the ring. Addressing a case of an agunah who requests that her marriage be voided due to the fact that both witnesses during the kiddushin were invalid due to the fact that they violated the Shabbat and committed other sins, following implicitly earlier rulings, R. Aharon Walkin—who resided in Pinsk-Karlin, Ukraine responds to such a petition in the most trenchant terms,",
+ "It is improper in my eyes to adopt this path to criticize the act of kiddushin eight years after the wedding . . . you must understand that such advice can destroy the purity of Israel . . . to multiply mamzerim in the midst of a holy nation; the marital bond from now will be not sustained. Everyone will destroy it in accordance with his will . . . And the stringency of being married (eishit ish) will be nullified . . . Therefore eight years after the wedding . . . we should not inquire for guidance to void the marriage . . .",
+ "His view is by far not one of a “lone ranger”. A few decades earlier, concerned about “the slippery slope”, Rabbi Hayyim Berlin—the son of the renowned R. Naftali Zvi Berlin—lambasts those authorities who engage in bittul kiddushin by stating,",
+ "One cannot imagine the damage and the breaches that can emerge from this in our dissolute generation . . . they will begin comparing one matter to another one—in the beginning, they will permit based upon umdananot (assessed expectations –AYW) . . . they will permit (to remarry –AYW) every wife whose husband who has traveled overseas to America or Africa . . . And afterwards they will permit . . . if a person will promise a certain amount of nedunya (dowry –AYW) and subsequently it will be discovered . . . that he cannot keep his promise, they will say “in her mind she would not have submitted to this marriage” . . . and mamzerim will multiply in Israel.",
+ "As our presentation will demonstrate, there are numerous other halakhic traditions which allow for the voiding of marriages under certain conditions.",
+ "Given that the propriety of voiding a marriage entails entering into “the universe of issurim”, the issue of being stringent or lenient regarding such matters emerges. In 1909, rabbinic controversy erupts concerning the question whether or not oil derived from sesame seeds are permitted on Pesah when the process of production prevented any possibility of leavening. Despite the opposition of various Yerushalmi rabbinic decisors, R. Kook—then rabbi of Yaffo—certified as kosher the factory that was producing the sesame oil. Responding to the concern that such a ruling would create a small opening that would eventually lead to “a breach in the wall of Halakhah”, R. Kook writes as follows,",
+ "And most importantly, I have previously written to these esteemed Torah scholars that I am aware of the character of our contemporaries. It is precisely by observing that we are ready to permit based upon plumbing the depths of Halakhah, they will arrive at the understanding that we are allowing it because of the truth of the Torah, and many will come, with God’s help, to listening to the voice of the instructors of Torah. But if it is discovered that there are such matters that from the perspective of Halakhah ought to be permitted and the Rabbis are insensitive to their burdens and pain of Israel, and allowed the matters as prohibited, this will result, God forbid, in the desecration of God’s name. Many of the transgressors of Halakhah will say regarding basic rules of Torah, that if the Rabbis wanted to permit them, they could have done so and the result will be that the Halakhah has been perverted.",
+ "To state it differently, in R. Kook’s mind, “the slippery slope” is a risk associated not only with lenient judgments but equally with unnecessarily stringent rulings which may result in “the breach of the wall”.",
+ "Concerning “the breach of the wall”, these words of R. Meir Gavison, a contemporary of R. Yosef Karo, the author of Shulhan Arukh are quite instructive and incisive,",
+ "The Scholars were . . . especially attuned to the imminent transgressions of halakhah, and the licentiousness that may emerge as a result of the wife’s status as an agunah. For if permission for her to remarry is withheld, people will intentionally violate . . . possibly they will be unable to subdue their instincts and will surrender to temptation should we fail to identify a way of permitting them to remarry. . . . And consequently, it is therefore our responsibility to inquire for grounds on their behalf, and . . . to allow her in order to preempt any possibility of violation. And it is no minor issue to commit a sin and to cause others to sin . . .",
+ "Over sixty years ago, R. Yitzhak Z. Kahana has well-documented in his classical work, Sefer ha-Agunot, the numerous teshuvot which address the acute need to offer solutions to deal with the woman whose husband has disappeared (“the classical agunah”) lest she remain an eishit ish as well as notes the well-trodden mesorah to rely on lenient opinions in a matter of agunah. A marriage which has no prospects for “shalom bayit” (marital reconciliation) and therefore is “dead”, yet the wife cannot receive the desired get in order to rebuild her life, is deemed an igun matter and is deserving of the same halakhic consideration of seeking leniency accorded to the classical igun while simultaneously preserving her halakhic-moral persona as a bat yisrael (a daughter in our community). As R. Eliyahu Alfandri notes, get recalcitrance entails “withholding good from our friends” and as such is an infraction of “loving your neighbor like yourself” and “failing to rescue him”. In contemporary times, Dayan Eliyahu Abergil characterizes a husband who is “me’agein” (“chain”-delay the giving of a get) his wife as an individual who is engaging in midat Sedom, sedomite conduct. Denying one’s fellow man a benefit when it costs nothing constitutes egregious behavior and is identified with the sin of the people of Sedom and is a Biblical violation of the negative commandment “do not take revenge”.",
+ "How does one seek a solution to the matter of “igun”? R. Dovid Babad, a renowned nineteenth-century posek of Galicia, communicates to us a mesorah that he received,",
+ "I heard from ha-Gaon R. Barish Rapaport . . . that he had a mesorah from his Rav, ha-Gaon Noda be-She’arim, Av Beit Din of Lublin, that upon receiving a question to address, he would first weigh in his mind the truthfulness of the matter according to what human reason dictates and if in his estimation human reason the matter is true, then he will delve into Halakhah to arrive at a decision.",
+ "Subsequently, in the twentieth century, in dealing with a classical agunah problem, both R. Ya’akov Breisch and R. Yitzhak Weiss invoke this mesorah in order to find a solution for the woman.",
+ "Despite the fact that the classical agunah problem entails a rabbinic matter, such a methodology ought to be equally employed when facing a modern-day igun problem which in certain instances deals with a Biblical matter. In fact, R. Aharon Lichtenstein lays out the halakhic-philosophical framework for addressing the modern day agunah issue.",
+ "Addressing the meta-halakhic factors in arriving at a psak din, decision in general and the plight of the agunah in particular, following the sagacious, authoritative counsel of R. Yosef B. Soloveitchik, R. Aharon Lichtenstein astutely observes,",
+ "Hora’a is comprised of two elements: pesak and pesika, respectively. The former refers to codification, the formulation of the law pertinent to a given area; and it is most characteristically manifested in the adoption on textual and logical grounds, of one position in preference to others. . . . Peskia, by contrast . . . bespeaks the application of what has already been forged in the crucible of the learning experience to a particular situation . . . Its challenge lies in the need to harness knowledge and responsibility at the interface of reality and Halakhah . . .",
+ "However, the cogency and legitimacy of a “human” approach to pesak, appears to many problematic. They would have us believe that the ideal posek is a faceless and heartless supercomputer into whom all the relevant data is fed and who then produces the right answer. Should this standard not be met, this shortfall is to be regarded as a failing . . . On this reading, the process of pesika, properly conceived and executed, bears no semblance to an existential encounter between seeker and respondent . . .",
+ "Purist proponents of this approach often cry it up as the “frum” view of pesika. In reality, however, this portrait of a posek is mere caricature . . . those who, at most kar’u ve-shanu, but certainly lo shimshu. As anyone who has been privileged to observe gedolim at close hand can readily attest, they approach pesak doubly animated by responsibility to halakha and sensitivity to human concerns. . . . And does not the whole history of coping with agunot reflect this concern?",
+ "In effect, for R. Lichtenstein, the human and social factor cannot operate independently of Halakhah. A halakhic decision does not reflect a moral or social fad. In short, he would agree with the aforementioned statement of R. Babad.",
+ "He would first weigh in his mind the truthfulness of the matter according to what human reason dictates and if in his estimation human reason the matter is true and is reflective of halakhic norms, then he will render a psak din, decision which is engendered by yirat Shamayim.",
+ "As we will hopefully demonstrate, under certain conditions many Poskim throughout the centuries have offered solutions to allow a modern-day agunah to remarry without receiving a get. In fact, notwithstanding the position of some Poskim, under certain conditions, a beit din may rely upon a minority opinion as the sole grounds or as a senif (lit. an appendage), a supporting argument for freeing a woman from the chains of igun. In addressing a crisis situation, following a well-trodden mesorah, R. Lichtenstein, notes that a minority opinion may be relied upon even if the matter entails a Biblical injunction.",
+ "Upon identifying a solution we ought to heed the words of R. Moshe Feinstein, who states,",
+ "“And it is a major prohibition “le-agein” (“to leave a wife in chains”) if one has the ability to address the situation and does not resolve it.”",
+ "Lest one be concerned about the view of other rabbis who look askance at voiding marriages, R. Feinstein observes,",
+ "Those who are of the opinion to prohibit are well aware the basis for permitting the matter and they should not be surprised when they hear that there are others who allow it. And if they fail to understand the grounds for permitting, they are not morei hora’ah (loosely translated as authorized arbiters in matters of prohibitions –AYW) and one should not be apprehensive of them at all and they must inquire into the matter and they will see the side of permitting the concern and they will no longer be surprised.",
+ "As R. Sinai Sapir states,",
+ "In matters such as those involving agunot, it is improper to collect stringencies. . . . In this situation, ‘the strength of the leniency is more powerful’, since we are concerned with halakhot involving lives . . .",
+ "Cognizant that the condition of igun may entail pikuach nefesh, danger to life, we have chosen to use dark red as the background color for our book cover. Human blood is always red. Usually, when it is oxygenated it is a bright red. However, when it is depleted of oxygen, it is a darker red. Metaphorically speaking, agunot have dark red blood. Minimally, freeing an agunah whose life has been bereft of total control and self-determination entails the preservation of her mental health and maximally it may involve the saving of human life. My personal experience involved encountering three agunot who have threatened to commit suicide due to their intractable situation.",
+ "Lest one contend that seeking solutions to matters of “igun” is to be relegated to Torah luminaries such as R. Elhanan Spektor and R. Yosef Baer Soloveitchik, author of Beit ha-Levi, R. Yitzhak ben Dovid of nineteenth-century Kushta exclaims,",
+ "If every Torah scholar would refrain from responding and say “how can I enter this flame of a mighty blaze due to the severity of the prohibition of illicit relations (“ervah”)?” . . . each man, a minor one like a great one (every Torah scholar, one of minor stature like one of major stature –AYW) is obligated to seek with candles, a careful search in holes and cracks possibly he will find relief for the benefit of the daughters of Israel to save them from igun . . .",
+ "In other words, throughout the ages, when dealing with matters of igun, arbiters have been engaging with the interface of Halakhah and reality.",
+ "In fact, commencing with the Middle Ages until contemporary times, numerous rabbis and battei din (rabbinical courts) alike both in the lands of our dispersion and in Eretz Yisrael have propelled themselves to “enter this flame” and have rendered decisions that have offered solutions for the matter of “igun”.",
+ "Even in the absence of an agunah’s plea to address her situation in a beit din should it be crystal clear that there exists an igun situation, a beit din is obligated to enter “this flame of a mighty blaze” and deal with the case. For example, in the absence of any pending litigation between the couple regarding end of marriage issues such as child support and child custody and it is clear that the husband moved to a different city or country and he has no intention to return to the marital home for the foreseeable future, a beit din is dutibound to intervene as ba’alei din, as concerned parties in terms of hearing presentations and receiving testimony even though the wife did not submit a claim for receiving her get. In matters of issurim, prohibitions such as the matter of a get, all members of the Jewish community are plaintiffs, parties. Consequently, a beit din may unilaterally initiate a hearing in a matter of igun.",
+ "Clearly, under such conditions a wife’s presentation accompanied with supporting evidence is required for a beit din panel to address the matter of igun.",
+ "Just as a posek must perform his due diligence to search for a reasoned solution, similarly, an agunah must persist in identifying a beit din or rabbinic authority who will afford her relief. Even if an agunah received a reply from a beit din or a rabbi that Halakhah affords no solution for her igun, nonetheless, many authorities permit her to revisit her case by submitting it to another rabbi or beit din. Lest one challenge this conclusion based upon the Talmudic rule regarding issurim, “if a scholar prohibited something, his colleague has no authority to permit it after it already has been forbidden” this rule may either be inapplicable in contemporary times or “a matter of agunah” is an exception to the rule. An agunah being forced to remain alone is untenable and therefore she should continue to seek out rabbinic authority to address her situation.",
+ "For many years, our Torah-observant community has encountered both here, abroad, and in Eretz Yisrael, situations where a recalcitrant spouse chooses to condition the giving or the acceptance of a get upon receiving certain benefits such as receiving monetary remuneration from the opposing spouse, custody of a child, or having certain issues related and/or unrelated to the end-of-marriage resolved in a beit din. Such conduct raises halakhic issues which we will address in the chapters dealing with the propriety of a conditional divorce and a divorcee’s relief from the consequences of an exploitative divorce agreement.",
+ "Additionally, in the component of our discussion of “the vision” of rabbinic authority, we focus upon some of the varying halakhic traditions regarding the propriety of a divorcee marrying a kohen and we will present a comparative treatment of how the Metz Rabbinical Court of the eighteenth century and contemporary Israeli Rabbinical Courts deal with the question of dividing up marital assets upon divorce.",
+ "In this volume, we have included nine presentations inspired by reasoned opinions handed down on various beit din panels, including the International Beit Din located in New York City. In each presentation, we offer a rendition of the facts of the case. Subsequently, there is an analysis of the halakhic issues emerging from the case, followed by a psak din, 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 or deleted. Realizing the controversial nature of some of the cases dealt with in this volume, we are keenly aware of Rabbi Yosef Karo’s ruling and admonition that a scholar must refrain from permitting a matter which the community views as being prohibited. Yet, on the basis of a well-trodden mesorah, such judgments can be rendered provided that reasons are given for one’s position. As such, we have offered reasoned opinions for our decisions. Whether there is a requirement to receive consent from a rabbinic authority who does not serve on the beit din panel prior to rendering a decision, we discuss in chapter 8, case b (end).",
+ "Both components of this monograph, namely “the vision” and “the reality” of rabbinic authority have benefited immensely from live interactions as well as telephone and e-mail communications that I had and continue to have with various rabbinical authorities in Eretz Yisrael who serve or served as dayanim in the regional battei din and Beit Din ha-Rabbani ha-Gadol, the Supreme Rabbinical Court in the Chief Rabbinate network of battei din. As dayanim who 24/6 immerse themselves in “the yam of the Talmud” (“the sea of the Talmud”), sifrei hiddushim (novellae), sifrei pesak (restatements) and teshuvot (responsa), listen to parties’ claims and counterclaims, and hand down reasoned decisions primarily in the area of divorce, their insights and advice have been immeasurable.",
+ "Chapters two and three have appeared originally in the pages of Tradition and portions of chapter four were delivered in Fall 2013 at The Center of Jewish History in New York City in honor of the publication of Professor Jay Berkovitz’s book, Protocols of Justice: The Pinkas of the Metz Rabbinical Court 1771–1789.",
+ "Hopefully our presentation will educate our community regarding the parameters and scope of rabbinic authority in general and “shatter the silence” surrounding the various techniques towards confronting the matter of “igun” in particular.",
+ "19 Ellul 5775",
+ "September 3, 2015"
+ ],
+ "Part I; Rabbinic Authority; The Vision": {
+ "Chapter 1; The Consensual Nature of Halakhic Divorce": [
+ "Addressing the dynamics of how a Posek arrives at his decision, we observe elsewhere,",
+ "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 (a decision) 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 of the Talmud and responsa literature, which generally reveal their reasoning processes, as well the restatements and rabbinic court judgments, which are frequently devoid of proofs and explicit reasoning . . .",
+ "The ability to analyze and potentially overrule one’s predecessor, whether he is the author of a teshuvah or a sefer psak, requires the arbiter . . . possesses yirat shamayim (religious piety) and scholarship. In his decision-making, he must weigh the significance of contrary precedent opinion and exercise logic as well . . .",
+ ". . . 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 . . . the practice of analogical reasoning reflects the ongoing dialectic between deference to early authorities and creative innovation . . . 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 . . .",
+ "In short, ko’ah ha-hiddush (the spur to creativity and originality) is tempered by a Posek’s yirat Shamayim, his commitment to thoroughly investigate the wealth of sources, and the collaborative effort of numerous authorities in the past that have confronted similar and/or identical problems.",
+ "Once the arbiter enters into the world of issur ve-heter (ritual law), additional factors come into play prior to him arriving at a psak. Decisions emerging over the centuries dealing with halakhic divorce law, as we will show, either explicitly invoke these considerations or implicitly utilize some of these factors prior to rendering a psak.",
+ "One of these considerations emerges from the nature of halakhic kiddushin (betrothal) and nissuin (marriage). Both the acts of kiddushin and nissuin entail a consensual agreement between a Jewish man and Jewish woman. It is a very special agreement that establishes a personal status, namely that the mekudeshet (the betrothed woman) is designated for a particular man and prohibited to all others. The establishment of hezkat eishet ish (the presumptive status of a married woman) renders both the man and woman subject to various prohibitions—e.g. sexual relations with various relatives become prohibited. The act of kiddushin equally creates financial obligations that will become spousal duties upon the consummation of the act of nissuin.",
+ "The severing of matrimonial ties is predicated equally upon both parties’ willingness to marry each other. We are taught in Devarim,",
+ "“When a man has taken a wife, and married her, and it come to pass that she find no favor in his eyes, because he found something inappropriate in her; then let him write her a bill of divorce, and give it to in her hand and he will send her from his house . . .”",
+ "Elucidating upon this Torah verse, the Mishnah, various passages in the Talmud, and subsequently the classical restatements conclude that the execution of a divorce requires the volition of the husband. The potential normative status of this conclusion stems from the fact that this doctrine of a husband’s free will concerning the execution of a divorce is found thousands of years ago in the Talmudic canon, whose rulings are authoritative due to the fact that there has been some metaphysical acceptance of these rulings by members of the Jewish community dating back from the days of Rambam until contemporary times.",
+ "On the other hand, normative Halakhah as recorded in the Tosefta, Mishnah, various passages in the Talmud and subsequent halakhic rulings until the early Middle Ages rule that a husband may deliver a get to his wife against her wishes. In other words, Halakhah required only the husband’s consent in giving a get.",
+ "Subsequently, over a thousand years ago, in the eleventh century, Rabbeinu Gershom of Germany enacts seventeen pieces of rabbinic legislation (or the legislation was attributed to Rabbeinu Gershom), including one providing that Halakhah mandate that the wife’s consent is required prior to the husband’s delivery of the get. The enactment was complied with in the medieval Franco-German communities and though there was originally a time limit placed upon the validity of the takanah (rabbinic legislation), nonetheless it is widely accepted that the enactment is still operative at least with regard to Ashkenazic Jewry to this very day. Invoking the language reminiscent of a twentieth century liberal mind, R. Asher ben Yehiel (known by the acronym: Rosh), who resided in thirteenth-century Germany and Spain, characterizes the takanah in the following fashion:",
+ "It [the legislation –AYW) equalized the power of the woman to the man’s power; just like a man cannot divorce her against his will, similarly a woman cannot be divorced against her wish.",
+ "That being said, one of the ramifications of marriage is the creation of the status of eishet ish—which means, amongst other matters, that the Posek must tread cautiously in releasing a married woman from the bonds of matrimony prior to ascertaining whether there are grounds for executing a get. Absent any grounds for permitting the divorce, should a get be executed it may be viewed as a “get me’useh” (a coerced get) and according to the majority of Poskim the get would be null and void. Therefore, should the wife rely upon this get and subsequently remarry and have children, her offspring would be halakhically stigmatized as mamzerim (halakhic bastardy-children born out of incestuous relationship).",
+ "Assuming a couple mutually agrees to execute a halakhic divorce, the couple, with the assistance of an attorney and/or a rabbi who has expertise in halakhic divorce law, would draft a settlement agreement that deals with the end of marriage issues such as division of marital assets, child support, parenting arrangements in terms of custody, and visitation privileges.",
+ "In the absence of an agreement between the parties to divorce, it becomes a beit din’s responsibility to determine whether are grounds for obligating or—in cases where it is permitted by Halakhah—for compelling the husband to give or the wife to receive a get.",
+ "Citing and expounding upon the sources of Halakhah, Professor Schereschewsky elucidates,",
+ "The wife is entitled to demand a divorce on the grounds of (a) physical defects of her husband or (b) his conduct toward her . . . in order to obtain a divorce on the grounds of physical defects the wife must prove that these preclude him, or her, from the possibility of cohabiting with each other . . . or because the defects are likely to arouse in her feelings of revulsion when in his proximity, and the like. In the case of the unreasonable refusal of the husband to comply with the judgment obliging him to give a get of his own free will in these circumstances the court may compel his compliance . . . unjustified refusal of conjugal rights on the part of the husband entitled his wife to claim a divorce . . . similarly, the wife may claim a divorce on the ground that her husband’s unjustified refusal to maintain her when he in a position to do so . . . the wife will have a ground for divorce if, e.g. her husband habitually assaults or insults her, or is the cause of unceasing quarrels, so that she has no choice but to leave their common household . . .",
+ "The grounds on which the husband may demand a divorce . . . are mainly similar to those that afford the wife this right against him . . .",
+ "In effect, these grounds of compelling the issuance of a get by a beit din, namely physical defects and inappropriate behavior of a spouse, are mentioned in the Mishnah and Talmud. After the Talmudic period, the question arises whether a beit din may compel a husband to deliver a get to his wife or compel a wife to accept a get from him in circumstances not mentioned in the Mishnah and Talmud. The question hinges upon whether grounds for compelling a get is limited to the specific examples of physical defects such as a husband who has a contagious disease or who is sexually impotent or examples of inappropriate conduct of a spouse such as wife-beating or refusal to support his wife mentioned in the Mishnah and Talmud; or could the list be expanded based upon drawing inferences by way of “hekesh” (analogical reasoning) to encompass other instances not mentioned in these halakhic compendiums? For example, if a wife claims “my husband is repulsive to me” are there grounds to compel a get (or obligate a get)? Given that this claim isn’t mentioned in the Mishnah and Talmud, many authorities conclude that there are no grounds for compelling (or obligating) a divorce. However, some of these authorities who refuse to validate such a plea will recognize this claim provided there exists an amatla mevureret (a clear reason that the husband is repulsive). There are yet other decisors who will reject such a plea even where a clear reason is provided.",
+ "Or to place this matter in a contemporary context, what grounds, if any, are there to compel a husband who is infected with HIV or who is a drug addict to deliver a get to his wife? Such issues would be subject to the same debate that began in the Middle Ages. Given that AIDS and drug use aren’t mentioned in the Mishnah or Talmud as examples of behavior that potentially poses an endangerment to a spouse, would there be grounds under these circumstances to compel a get?",
+ "Seemingly, these ongoing discussions and debates in Halakhah relating to the grounds to compel a divorce fly in the face of our conclusion that the execution of a Jewish divorce is a consensual process. How does a beit din compel a spouse to give or accept a get if a divorce if the voluntary agreement of the parties is required? One of the rationales given for this anomaly—which is briefly alluded to in the Talmud—is expanded upon by Rambam, who writes,",
+ "A person regarding whom the Law indicates that we should force him to divorce his wife and who refuses to divorce, a Jewish court in every place and at every time beats him until he says “I am willing” and he writes a get and this get is valid . . . Why is this get not void, as it was the product of compulsion . . . ? Because we do not talk of compulsion apart from one who was pressured and forced to do a thing that he is not commanded by the Torah to do—for instance someone who was beaten until he executed a sale or donated a gift; but in the case of one whose evil inclination drives him to avoid doing a religious commandment or to commit a sin, and was beaten until he did the thing that he was obligated to do . . . this (subsequent conduct) is not compelled from him rather he compelled himself due to bad judgment. Therefore, someone who does not want to divorce (when Halakhah states that he should divorce –AYW), it follows from the fact that he wants to be part of the community of Israel that he wants to perform the religious commandments . . . and it is his (evil –AYW) inclination that is driving him and because they beat him until his inclination was subdued and he stated “I am willing” he has divorced willingly . . .",
+ "Aware of the doctrine of the consensual nature of halakhic divorce as well as the legitimacy of a beit din compelling divorce under certain prescribed conditions, Rambam suggests that one must distinguish between “the real will” and “the actual will” of a Jew who is committed to Halakhah. The real will of this Jew is to comply with the dictates of our mesorah (Jewish tradition), including—but not limited to—delivering (or receiving) a get if Halakhah mandates such an action. However, his actual will, which may be driven by desires that are beyond his control, direct him (or her) to disobey the law. In such circumstances, by coercing the miscreant to obey the beit din by acquiescing to the divorce, we have not forced him (or her) to do what he does not want; on the contrary, we have enabled him (or her) to do what he (or she) really wants! Hundreds of years later, Immanuel Kant—and even later John Rawls—speak of the rational will as the expression of what is required or demanded by reason; a will that is free of inclinations and desires that, although rational, is imperfectly so. Whereas Kant and Rawls depict this will as controlled by reason, Rambam—as a religious philosopher—defines this notion of rational choice in terms of subservience to the norms of Halakhah. Subsequent to Rambam’s understanding, many authorities endorse his approach that coercion serves as a vehicle to reinstate the recalcitrant spouse’s authentic will to comply with Halakhah and give (or receive) a get. For example, even though a husband may feel the economic pressure to pay the value of the ketubah, at the end of the day the fact that there are halakhic grounds to give the get ensures that the husband is acting voluntarily by granting a get. And in contemporary Eretz Yisrael, where in certain instances a beit din will compel a recalcitrant husband to deliver a get to his wife, the beit din panel informs him that in actuality he is giving the writ of divorce voluntarily.",
+ "As Rambam explains, the logic behind the legitimacy of a coerced get is that the husband does indeed want in his heart of hearts to obey the teachings of his tradition. The question is whether the “real will” to obey Torah scholars means that there must be a rabbinical consensus that there are grounds to coerce a divorce or is it sufficient for a beit din to render a decision even if it does not reflect the rabbinic consensus? Is the real will actualized when there is unanimity of halakhic opinion or when a beit din hands down a ruling regardless of whether it would be accepted by all decisors?",
+ "One ramification of our question emerges in the following context. Addressing the case of a husband who became epileptic, there was a dispute between Rosh, who advocates compulsion to effect a divorce, and Mordekhai, who rejects it. In light of this controversy, Hatam Sofer, a nineteenth century Hungarian rabbi, invokes his approach to this question. He states,",
+ "Even if it is clear in Heaven that halakhah follows Rosh, since there is the opposing opinion of Mordekhai, and we do not have anyone who can decide between them, if one forced him to divorce she is still a definitely married woman . . . The reason I say this is that a coerced get, even when it is enforced according to the Law and he says “I agree”, is nevertheless only fit for the reason that the authorities gave; it is presumably agreeable to fulfill the words of the Rabbis who said one should compel him to divorce – as Maimonides beautifully explained. However, this is only when it is clear to the husband that the coercion is in accordance with the Law according to every authority for if so it is a duty [in the husband’s case] to comply with the teachings of the Rabbis. However in this situation the husband will say, “Who says it is a duty to heed the words of Rosh, perhaps it is an obligation to follow the words of the Mordekhai? So if said, ‘I agree’ it was coerced and did not emanate from his heart” . . .",
+ "In reply, in accordance with nineteenth century medical opinion, Hatam Sofer contends that living with an epileptic does not pose a danger to oneself; therefore there are no grounds for coercing a get.",
+ "One interpretation of his opinion, which is espoused by Hatan Sofer (his grandson) and R. Elyashiv, is that in cases where there is a dispute amongst Poskim whether there are grounds for a compulsion order, following the doctrine of majority rule will not be determinative. Given that reliance upon a majority view in a halakhic dispute presupposes that the debate is intergenerational, transcending geographical location and a particular time period, resulting in the absence of “give and take” between the Poskim, therefore we must act stringently and follow the minority opinion. In other words, whereas in the context of a beit din, one can speak of “a rov gamur” (an absolute majority), in a halakhic controversy one cannot speak of a rov gamur since there has been no face-to-face deliberation and debate regarding the matter. Implicitly rejecting Radakh’s and Hazon Ish’s approach that the existence of a majority opinion is to be viewed as “itmar hilkhita” (the Halakhah has been decided), Hatam Sofer and R. Elyashiv view “abiding by the majority” in halakhic controversy is readily distinguishable from the procedural rule of following the majority opinion of dayanim in a beit din proceeding. Nonetheless, we follow the stringent, albeit minority, view due to our concern for hezkat eishit ish. To state it in talmudic terms, “following the teachings of Torah scholars” means compliance with the dissenting view and refraining from issuance of a get compulsion order. To borrow Rambam’s nomenclature, the husband’s real will is to abide by the minority view, which means deference to the aforementioned hazakah (presumption), and therefore coercion is not sanctioned.",
+ "However, in a case of an agunah, they agree we would follow the majority opinion.",
+ "In the question posed to Hatam Sofer that did not involve an agunah situation, given that the majority of Poskim do not agree that there are grounds to coerce an epileptic to give a get, Hatam Sofer concludes that coercive measures are unwarranted. Even if the majority view sanctioned a compulsion order, “the husband’s real will” would have failed to emerge due to the fact that there was a minority opinion.",
+ "However, upon a closer reading of his teshuvah, one encounters a differing understanding of Hatam Sofer’s position. As he notes regarding the precondition for coercing a get,",
+ "This is only when it is clear to the husband that the coercion is in accordance with the Law according to every authority for if so it is a duty [in the husband’s case] to comply with the teachings of the Rabbis. However in this situation the husband will say, ‘Who says it is a duty to heed the words of Rosh, perhaps it is an obligation to follow the words of the Mordekhai? So if he said, ‘I agree’ it (the get –AYW) was coerced and did not emanate from his heart . . .",
+ "In other words, a husband’s constructive consent to give a get is predicated upon the fact that all authorities agree that a get ought to be coerced. Should one opinion disagree, one cannot speak of “a husband’s real will” to give a get.",
+ "Such an interpretation of his position resonates in the writings of Sdei Hemmed, Sha’arei De’ah, Ein Yitzhak, Heikhal Yitzhak, and Dvar Yehoshua. In fact a well-respected Sephardic Posek, R. Eliyahu Alfandri, endorses Hatam Sofer’s approach. If there is a halakhic controversy concerning whether there is a foundation for a compulsion order, constructive consent of the husband is nonexistent. Given that one of the distinguishing characteristics of Halakhah is its pluralistic nature, namely the divergence of opinion concerning a particular matter, adopting Hatam Sofer’s position inexorably leads to the conclusion that anytime there is an opinion which rejects a wife’s claim as grounds for divorce, one cannot speak of a husband’s consent to grant a get. In effect, a husband’s imputed consent to comply with the norms of halakhic divorce will in many instances never transpire due to the ongoing existence of halakhic controversy whether there is a basis for giving a writ of divorce. Consequently, in pursuance to Hatam Sofer’s approach, a beit din will almost never compel a divorce judgment. Realizing the ramifications of his view, Hazon Ish exclaims,",
+ "And Hatam Sofer’s ruling one cannot sustain!",
+ "The question is which notion of imputed consent found resonance amongst the other Poskim who addressed whether an epileptic can be coerced to give a get? Is it constructive consent based upon halakhic unanimity of opinion serving as grounds for get coercion? Or is it rooted in the husband’s willingness to accept beit din’s authority to render a decision, a ruling that may not necessarily reflect halakhic consensus?",
+ "If we focus upon Hatam Sofer’s scenario of the epileptic husband various lines of reasoning have been invoked in order to arrive at the conclusion that an epileptic husband may be compelled to give his wife a Jewish writ of divorce. Despite the fact that epilepsy is neither mentioned in the Mishnah nor in the Talmud, nonetheless some draw inferences by analogy by contending that the disease of epilepsy should be viewed as “a mum gadol” (a major defect) no different than boils and other afflictions that are mentioned explicitly in the Mishnah and Talmud where compulsion orders may be rendered. Others concur with the above argumentation and add that we are dealing with a disease that endangers the life of others and therefore grounds exist to coerce a get. Echoing the above approach, others claim that the majority or many of the Poskim consider epilepsy as posing a danger to others; therefore compulsion orders are to be sanctioned. To state it differently, as noted by these Poskim, the stringency of potential endangerment trumps the hezkat eishit ish!",
+ "The fact is that there are Poskim who agree with Rosh’s position; therefore, Maharit argues that one may rely upon these authorities despite the fact that Ra’avyah disagrees. Moreover, Maharit claims that had Ra’avyah been aware of the fact that Rabbeinu Gershom rules in favor of get coercion, Ra’avyah would have changed his mind. In Maharit’s, Radvaz’s and Maharhash’s words, the fact that Ra’avyah disagrees and therefore engenders a doubt whether coercion is permissible, such “a doubt should not trump what is certain”, namely following the opinion of others who mandate get coercion.",
+ "On the other hand, some Poskim such as Rema, Shakh, and others argue in a case of a doubt where we are dealing with hezkat eishet ish, one must act stringently and refrain from compelling a get. Such a position is echoed in different contexts by other authorities. Others argue that epilepsy does not pose a danger to others and therefore a beit din is not empowered to hand down a get compulsion order. And given that epilepsy is neither mentioned in the Mishnah nor the Talmud, some decisors consequently contend that compelling a divorce under such circumstances is prohibited.",
+ "In short, our brief overview of the halakhic controversy regarding whether an epileptic husband may be compelled to give a get centers on the varying canons of the decision-making process, the nature of epilepsy, and the concerns for eishet ish. None of the aforementioned authorities who reject get coercion advances the position that their position stems from the precondition of obtaining unanimity of opinion as suggested by one interpretation of Hatam Sofer’s view.",
+ "Even those who espouse get compulsion judgments based upon the fact that the majority supported such a conclusion were implicitly contending, as we find regarding other questions, that the rule of acting in accordance with the majority is determinative rather than that the majority opinion is reflective of “a husband’s real will”, as suggested as an alternate explanation of Hatam Sofer’s view. Adopting the latter perspective would have required that one follow the minority opinion in the absence of an igun situation as a form of stringency and abstain from get coercion even in the face of the majority opinion. But, in fact, a review of the fact patterns of the cases addressed demonstrates that we were dealing with a situation where a wife was desirous of a get, unmarked by any igun, and yet the Poskim follow the majority view and compelled a get of an epileptic husband.",
+ "Our differing understandings concerning the jurisprudential basis for get coercion emerge from a teshuvah of Hatam Sofer dealing with an epileptic husband that fails to find support in the aforementioned rulings. In effect, in contradistinction to Hatam Sofer’s teaching, our review indicates that the grounds of compulsion, at least with regard to an epileptic husband, is anchored in a beit din’s authority to resolve this matter based upon the techniques of halakhic decision-making, the nature of epilepsy, and concern for hezkat eishit ish—as is suggested by Sdei Hemed, Sha’arei De’ah, Ein Yitzhak, Heikhal Yitzhak, Hazon Ish, and Dvar Yehoshua.",
+ "Lest one challenge our conclusion by arguing that other ilot gerushin (grounds for divorce) belie an endorsement of Hatam Sofer’s view, let’s focus on two other possible grounds for coercing a get. One example is a husband who frequently employs physical abuse against his wife. Such behavior is not enumerated in the Mishnah and Talmud of Ketuvot as one of the instances that serve as grounds for a get compulsion order. Nonetheless, R. Meir of Rothenberg [Maharam] and R. Binyamin Slonik contend that if the Mishnah rules that a husband who refrains from engaging in conjugal relations for a month is grounds for coercion, a fortiori such ought to be the case for an abusive husband! Invoking the view of some Gaonim, Rabbeinu Simhah, Maharam, and Ramban, Darkhei Moshe conclude that a batterer can be coerced to give a get. Given that one can coerce a husband who emotionally abuses his wife to grant a get, Tashbetz rules that a fortiori one can coerce a husband who assaults his wife. Finally, some Poskim claim where there exists a clear and present danger to the wife, there is justification to impose a get. Despite the fact that there is a debate whether a beit din can compel an epileptic husband to give a get, should the wife advance the plea of mais alai, R. Hayyim Pelagi contends that a beit din can employ this plea as a senif (lit. an appendage) in order to issue a get compulsion decree.",
+ "On the other hand, others rely upon Rosh’s ruling that the list of cases of kefiyat get (coerced get) found in the Mishnah and Talmud Ketuvot is closed and therefore one cannot adduce any inference by analogy to expand the instances beyond those explicitly mentioned in these compendiums. Moreover, though admittedly Rabbeinu Simhah, Ohr Zarua, and Agudah concur that coercion is permitted, nonetheless Beit Yosef opines that given the fact that well-known Poskim fail to agree, get coercion lacks foundation. Finally, R. Moshe ben Yisrael of eighteenth-century Rhodes claims that in light of the fact that there is a halakhic controversy whether one can coerce an abusive husband to give a get, there is therefore no basis for get coercion. Lest one conclude that his position stems from implicitly adopting the Hatam Sofer’s approach that unanimity is required prior to mandating a compulsion judgment, his argumentation conveys a different message. On the contrary, R. ben Yisrael writes that we must distance us from imposing kefiyah in order to avoid that the ostensibly divorced woman may remarry and have children who will be stigmatized as mamzerim. In other words, the concern is for hezkat eishit ish rather than any requisite need to have a rabbinic consensus prior to kefiyat ha-get. In short, following in the well-trodden mesorah (tradition) of Tashbetz, Rema, and R. Akiva Eiger, whether battery serves as an ilat gerushin (a claim for get coercion) is within the province of a beit din’s discretion.",
+ "Another ground for a get compulsion order, according to Shulhan Arukh, is a husband who refuses to engage in the performance of the mitzvah of onah (conjugal relations). Upon the inception of marriage, a husband is obligated to engage in conjugal relations with his wife. In other words, a husband who is sexually capable of onah but simply refuses to perform is labeled under certain conditions a moreid (a rebellious husband) and is coerced to give a get.",
+ "Other Poskim contend that the husband must also be delinquent in paying mezonot ishah (spousal support) prior to issuing such a compulsion judgment. On the other hand, given that this situation is absent from the list found in the Mishnah and Talmud of husbands who can be coerced, some Poskim reject the notion that such spousal behavior serves as grounds for a compulsion order. Moreover, Gevurat Anashim argues that a beit din should be concerned about the stringent opinion and therefore refrain from imposing any coercive measures in order to have a husband give a get. In effect, his position resonates in Rema’s psak din that in case of doubt, one does not render a divorce compulsion decree.",
+ "In short, in dealing with a husband who is an epileptic, batterer, or a spouse who is delinquent in his marital duty of engaging in conjugal relations, in contradistinction to Hatam Sofer’s teaching that there is a mandate to have halakhic unanimity prior to the issuance of a decision lest one run afoul of the strictures of a get me’useh, our review indicates that the grounds for compulsion—at least with regard to these situations—is anchored in a beit din’s authority to resolve this matter based upon the techniques of halakhic decision-making and concern for hezkat eishit ish as we earlier suggested in the name of Sdei Hemed, Sha’arei De’ah, Ein Yitzhak, Heikhal Yitzhak, Hazon Ish, and Dvar Yehoshua. These are judgments that may not reflect unanimity yet fail to raise the specter of a get me’useh.",
+ "Get Compulsion in Eretz Yisrael",
+ "Based upon our foregoing presentation, one would expect to find that the Israeli rabbinical courts would have weighed in on the varying grounds of coercing a get—either by affirming the imposition of a get compulsion judgment or rejecting it. One would expect to encounter some decisions supporting the compulsion order and others rejecting it. In the absence of a compulsion decree, our discussion will address the grounds that empower a panel to obligate a husband to give a get. Do the Israeli battei din follow in the footsteps of their predecessors arriving at decisions based upon the conventional techniques of halakhic decision-making with attendant concern for hezkat eishit ish or do they espouse the approach of Hatam Sofer?",
+ "So let’s address how these battei din dealt with compelling or obligating a get from an epileptic husband, a husband who refuses to engage in conjugal relations, and a wife-batterer to give a get to his wife. A review of the Israeli battei din decisions shows that given that there is a disagreement whether to coerce an abusive husband, some panels echo Rema’s ruling that in cases of doubt one refrains from either coercing or obligating an abusive husband to give a get. However, should a husband’s conduct pose an endangerment to the wife, one invokes the rule “when life is endangered, there is no better argument” or “endangerment entails the need to act more stringently than concerning a prohibition”, and one coerces or obligates the delivery of a get. Relying upon Rosh’s ruling that the list of cases of kefiyat get (coerced get) found in the Mishnah and Talmud Ketuvot is closed, a beit din would obligate a husband who was mentally deranged and engaged in oppressive battery or who attempted to murder his wife to give a get rather than coerce the giving of a Jewish writ of divorce. On the other hand, in instances of frequent acts of battery that do not pose a danger to life, other battei din grant a get compulsion order. In fact, invoking various authorities such as Rabbeinu Simhah, Ohr Zarua, Tashbetz, Yakhin u-Boaz, and Rema, some battei din conclude that a wife being a victim of assault may serve as grounds for compelling or obligating a husband to deliver a get to his spouse.",
+ "Concerning a husband who refuses to engage in conjugal relations, despite the presence of debate whether there are grounds to compel a get, nonetheless, at least one beit din ruled that if we are dealing with a mentally deranged husband and if the separation exceeded five years, then a get may be coerced. On the other hand, given that mental derangement is not one of the instances enumerated in the Mishnah and Talmud, if a husband’s sexual abstinence was for a short period, we may only obligate him to give a writ of Jewish divorce, but not coerce him.",
+ "Regarding an epileptic husband, given that epilepsy is neither mentioned in the Mishnah nor the Talmud, some battei din contend that compelling a divorce under such circumstances is prohibited. Since, as we have seen, there is a controversy whether one can compel an epileptic husband to give a get, some contemporary decisors and battei din abstain from issuing a get compulsion judgment because this is a case of halakhic doubt. Relying upon earlier authority, another beit din does not view epilepsy as a mum gadol (a major defect) and therefore finds no justification for get compulsion. In contradistinction to the aforementioned panels, which focus the resolution of this issue within the context of the conventional canons of halakhic decision-making, R. Elyashiv, when serving as a dayan on the Beit Din ha-Rabbani ha-Gadol, opine that in the absence of an agunah situation one cannot coerce an epileptic husband to give a get because there exists a dispute amongst decisors whether a get can be given under such circumstances. And given the controversy, one cannot ascertain the will of the Torah scholars, which inexorably leads to the conclusion that one cannot conclude that “a husband’s real will” is to give a Jewish writ of divorce. Even if the majority of Poskim claim that get compulsion is justified, given the existence of a minority opinion, “the husband’s real will”—which is to comply with the teachings of all the rabbis—has not been obtained!",
+ "In sum, in response to our question whether Hatam Sofer’s position holds sway in regard to get coercion and obligating judgments, at least as regards the cases of an epileptic and abusive husband as well as a husband who abstains from engaging in onah, the overwhelming majority of Poskim contend that such questions are solved within the context of the conventional rules of decision-making and concern for hezkat eishit eish rather than factoring into the equation Hatam Sofer’s position. In fact, on March 6, 1990, addressing the situation of an abusive husband, R. Shear Yashuv Cohen, serving as a dayan on the Haifa Regional Beit Din, writes the following,",
+ "Even though Hatam Sofer states that coercion or duress is permissible provided “it is clear by the divorcer that the coercion is in accordance with halakhah, in accordance with everyone” (Teshuvot Hatam Sofer, EH 116) . . . Already the scholars of the generation have ruled against him, as R. Yitzhak Herzog . . . R. Elhanan (Spektor –AYW) . . . Hazon Ish . . .”",
+ "And in fact our review, as circumscribed as it is, reflects R. Cohen’s assessment. Twenty-one years later, addressing whether a beit din may compel a husband who is non-observant to give a get, notwithstanding the dissenting opinion of R. Ariel Yanai, Rabbis Michoel Amos, and Shneur Pardes of Netanya Regional Beit Din explicitly rejects Hatam Sofer’s approach.",
+ "In conclusion, let’s place our presentation within the context of two recent assessments of the Israeli rabbinical courts’ position regarding get coercion. In 2004, Dr. Yehiel Kaplan, Professor of Jewish Family Law at Haifa Law School, states the following:",
+ "The rabbinical courts in Israel attached great importance to the stringent views of certain halakhic authorities, particularly the Rosh . . . and R. Moses Sofer (Hatam Sofer –AYW). According to the Rosh, the list of grounds for divorce mentioned in the Mishnah and Talmud as warranting “compulsion” to divorce is closed, and nothing can be added to it. Only in rare cases has the use of analogy enabled halakhic authorities to add new grounds for ‘compulsion’ of divorce . . . as the causes for compelling a get in the early halakhic sources are few and well-defined, this opinion limits the possibility of ruling that a get may be compelled in our day . . .",
+ "Three years ago, Dr. Rami Reiner, an Israeli academic, notes,",
+ "In the question of a coerced get regarding recalcitrant husbands, R. Elyashiv introduced a trend when he was serving on the rabbinical court that impeded almost any possibility of compelling a divorce. As the years progressed and his halakhic influence grew, this position became more and more the dominant trend in the rabbinical courts . . . “",
+ "Both academics claim that get compulsion orders are a rarity and attribute this phenomenon to the persuasiveness of the authorities Rosh, Hatam Sofer, and R. Elyashiv.",
+ "So let’s address whether their assertions that get compulsion orders are few and far between reflect empirical reality? In 1953, the Knesset (the Israeli parliament) enacted a piece of legislation that delegated to the Israeli Rabbinical Courts exclusive jurisdiction in matters dealing with matters of marriage and divorce. Section 6 of The Rabbinical Courts Jurisdiction (Marriage & Divorce) Law, 5713–1953 states as follows:",
+ "Where a rabbinical court, by final judgment, has ordered that a husband be compelled to grant his wife a writ of divorce or that a wife be compelled to accept a writ of divorce from her husband, a District court, upon expiration of six months from the day of making the order, on the application of the Attorney General, may compel compliance with the order by imprisonment.",
+ "Even after a judgment has been handed by the beit din and, assuming that the recalcitrant spouse continues in his or her refusal to give or accept a get, the spouse who is refused the get must wait six months prior for the Israel’s civil system to issue an order of imprisonment. It is only after the beit din’s ruling has been reviewed by the Attorney General and the district court that the recalcitrant spouse will be incarcerated.",
+ "From 1953 until 1974, there were thirty rabbinical court decisions compelling a get. In all cases except for one, the recalcitrant spouse had a change of a heart and delivered or accepted a get from his or her spouse either prior to the Attorney General or district court’s review of the request for imprisonment or after the issuance of an order of imprisonment. Nevertheless, even during this span of time, the rabbinical courts preferred to utilize moral persuasion or financial pressure in the form of ordering a substantial amount of spousal maintenance to be paid to the wife to procure a get from the husband.",
+ "However, in subsequent years, the Israeli rabbinical courts rendered more and more divorce judgments of “obligating a divorce” rather than compelling a get. In the late eighties, R. Shlomo Daichovsky, a former dayan serving on the Supreme Beit Din, notes,",
+ "The possibility (referring to get compulsion –AYW) rarely happens.",
+ "In 1995, R. Professor Shochetman, an international authority on rabbinic court procedure (in particular Israeli beit din procedure) observes,",
+ "Divorce is almost never compelled today in the State of Israel, despite the legal authority that rests in the hands of the rabbinical courts.",
+ "Upon his retirement in 2007, after having concluded serving thirty-two years in the rabbinical court system, twenty years of which were on the Beit Din ha-Rabbani ha-Gadol, R. Daichovsky offers the following thoughts to his fellow arbitrators.",
+ "In today’s unrestrained generation, we are all aware of the overriding importance of bringing a failed marriage to a quick resolution. Neither husbands nor wives are prepared to wait indefinitely for the sought-after get, and if the proceedings drag on too long, they will make their own rules. The rabbinical courts in our time . . . have the full authority to work in accordance with emergency measures in certain cases. A rabbinical court can and must make use of the means brought by Rambam as emergency measures—including imprisonment—in order to arrive at a speedy resolution. Get me’useh does not constitute a halakhic stumbling block when the matter is arranged by a rabbinical court in accordance with the accepted, as stated in Rambam’s well-known words . . .",
+ "In other words, R. Daichovsky implores his colleagues to invoke Rambam’s ruling that we presented, namely that coercion is legitimate means to generating the delivery of get by the husband to his wife provided that there are halakhic grounds for arriving at that determination without requiring unanimity of opinion.",
+ "Our review of some of the judgments handed down by the courts under the aegis of Israel’s Chief Rabbinate between 2005 until May 2013 (that we accessed from www.daat.il via the mishpat ivri icon) arrives at the identical conclusion advanced by the aforementioned rabbis and academic scholars. Of the seventy-eight judgments that we reviewed, all of them—except for two judgments—obligated or recommended, rather than compelled, a divorce. In the majority of cases, the rabbinical court issued “an obligating divorce decree”. In two cases, the court issued compulsion orders.",
+ "Below please find the breakdown of judgments reviewed as per the various courts located throughout the State of Israel:",
+ "BEIT DIN HA-RABBANI HA-GADOL: 1 of 10 panels compelled a divorce. The others either obligated or recommended a divorce.",
+ "JERUSALEM REGIONAL RABBINICAL COURT: 3 panels obligated or recommended giving a divorce and one dissenting opinion compelled a get.",
+ "TEL AVIV-YAFFO REGIONAL RABBINICAL COURT: 17 panels obligated or recommended to give a divorce.",
+ "PETAKH TIKVAH REGIONAL RABBINICAL COURT: 4 panels obligated or recommended to give a divorce.",
+ "ASHKELON REGIONAL RABBINICAL COURT: 1 panel obligated to give a divorce.",
+ "ASHDOD REGIONAL RABBINICAL COURT: 4 panels obligated or recommended to give a divorce.",
+ "BE’ER SHEVA REGIONAL RABBINICAL COURT: 2 panels obligated or recommended to give a divorce.",
+ "TIBERIAS REGIONAL RABBINICAL COURT: 3 panels obligated or recommended to give a divorce, one panel compelled a divorce.",
+ "NETANYA REGIONAL RABBINICAL COURT: 15 panels obligated or recommended to give a divorce.",
+ "HAIFA REGIONAL RABBINICAL COURT: 17 panels obligated or recommended to give a divorce.",
+ "Subsequently, we reviewed forty-seven decisions found in 32 pamphlets entitled The Law & its Decisor, a publication of the Bar Ilan University Rackman Center for the Advancement of the Status of Women (edited by Prof. Radzyner), and we found that the majority of the judgments are “obligating orders” and one is a compulsion order. (As per Professor Radzyner’s written communication to me, this series of judgments does not appear on www.daat.il.)",
+ "Given that we have only reviewed one hundred twenty-five divorce decisions on two websites, let us mention that six years ago, Professor B. Shmueli, Law Professor at Bar Ilan Faculty of Law, accessed two other sites and concluded upon his review that only a handful of compulsion orders are handed down annually. Between 2012 and 2013, there were 16 compulsion orders versus 234 decisions obligating a get.",
+ "In other words, despite the fact that these courts have chosen to refrain from issuing compulsion orders that would have been translated into orders of imprisonment in accordance with Section 6 of The Rabbinical Courts Jurisdiction (Marriage & Divorce) Law, 5713–1953, the rabbinical courts are issuing a divorce judgment at a lower level of enforcement, namely an “obligation to divorce”. The practical implications of such a divorce order are sometimes limited to a beit din mandate to enlarge the sum of spousal support for the wife or the court issuance of judgment in the form of a social sanction, directing that community pressure ought to be placed upon the husband to give a get. In other cases, such obligation decrees are implemented by enforcing Section 2(1) to 2(6) of the Rabbinical Courts Law (Enforcement of Divorce Judgments), which was enacted in 1995 by the Israeli Parliament. In pursuance with the aforementioned sections, in instances where a rabbinical court has rendered a judgment that obligates a spouse to either deliver or receive a get and the spouse refuses to comply with the order, passports may be confiscated, bank accounts frozen, driver’s license suspended, working in a profession regulated by law or operation of a business requiring a license may be hindered, and he/she will not be allowed to leave Israel. Since the passage of this legislation, numerous dayanim serving on the battei din under the auspices of Israel’s Chief Rabbinate have given their halakhic imprimatur to these restrictive orders. Four years after the passage of this legislation, it has been reported that the implementation of these restrictive orders have been effective in procuring a get from a recalcitrant husband in only seventy to seventy-five percent of cases. In other words, despite the existence of this new legislation of 1995, get recalcitrance still remains a thorny issue.",
+ "Secondly, this legislation is seemingly a form of coercion and therefore should be invalid in light of our conclusion that Jewish divorce is premised upon the mutual consent of the parties. However, authorities were well aware of this issue hundreds of years ago when they endorsed similar types of measures relating to cases of “obligating divorce”. The rationale offered at the time and endorsed by many in subsequent generations is that these restrictions authored by Rabbeinu Tam entail “withholding benefit”, which involves a rational choice whether to give a get or be subject to these social measures—rather than involving a classic form of duress. In other words, these isolating measures are directed against the community to refrain from providing services to the recalcitrant spouse rather than a form of coercion meted out against him. Nonetheless, there are well-respected legists that construe the withholding of these benefits as an example of illicit coercion and therefore unlawful. To state it differently, there have been have been well over a hundred arbiters spanning a few centuries who have weighed in on all or many issues. Some of them are well respected, which means that on numerous occasions others cite their decisions authoritatively. The others, though they are proficient in Halakhah, are not cited as frequently and sometimes fail to be acknowledged at all in this ongoing debate. Consequently, given that there exists these well-respected authorities who oppose these measures, it behooves us to be concerned that “their voices may suddenly be heard” and translate into rabbinical court opposition to invoking these restrictive orders in cases of get recalcitrance.",
+ "Finally, the practical consequences of the level of divorce enforcement in the form of “obligating divorce” has been playing itself out since 2004 in various Israeli (civil) family courts, who have addressed four tortuous causes of actions against husbands who refuse to comply with a rabbinical court’s “obligating order”, a judgment that was obtained in each case after nine to ten years of litigation. In these four cases the Israeli family courts recognized a tort of negligence and awarded monetary damages to the agunah either based upon the husband’s refusal to comply with the rabbinical court’s obligation decree or recommendation order, which was viewed as a violation of Article 35 of Israel’s Tort Ordinance, or due to the emotional damage caused by the husband’s get recalcitrance.",
+ "In sum, compulsion orders for granting relief to a victimized spouse due to get recalcitrance are infrequent and “obligating divorce” judgments, albeit legally enforceable in the form of restrictive orders, sometimes do not translate into get compliance and under certain circumstances propel Jews to file claims in the Israeli family (civil) courts, an inappropriate response under Halakhah due to the fact that Jews must resolve their differences in a beit din. To state it differently, we review of the infrequency of get compulsion orders being handed down by Israeli rabbinical courts reinforces Kaplan’s and Reiner’s examination of the matter.",
+ "That being said, the outstanding question remaining is whether this infrequency of issuing such judgments ought to be attributed to these panels’ steadfast subservience to the opinions of Rosh, Hatam Sofer, and R. Elyashiv as suggested by Kaplan and Reiner. Admittedly, in a few instances Rosh declines to impose a compulsion decree; yet there are other situations where Rosh invokes inference by analogy based upon the list of cases enumerated in the Mishnah and Talmud in Ketuvot. Moreover, the failure to mandate a compulsion judgment stems from his understanding that the list is closed regarding a particular disease or spousal behavior unless one can demonstrate that a disease which is not specified is similar to a disorder which is mentioned. Such a line of reasoning occurs in many realms of Halakhah. For example, according to certain Poskim, one can only annul marriages in the various situations mentioned in the Talmud. If there arises a case that was not discussed in the Talmud, annulment is prohibited. Interestingly, whereas as we found that regarding get compulsion decisions in certain instances Rosh considers the Mishnaic and Talmudic list as closed, nevertheless regarding marital annulment concerning a situation where a party acted improperly during the kiddushin ceremony, Rosh invokes an analogy to a situation cited explicitly in the Talmud! In other words, it is within the discretion of an authority to decide whether a list is open or not. In the situation of marital annulment, Rosh argues that it is open and concerning get compulsion decrees in certain instances he considers it closed. And in fact other Poskim disagree with Rosh and refuse to infer by analogy and consider the list regarding marital annulment as closed.",
+ "Moreover, Kaplan’s and Reiner’s conclusions that Hatam Sofer’s and R. Elyashiv’s views “hold rein”, at least with regard to the cases of an epileptic and an abusive husband as well as a husband who refuses to engage in conjugal relations, is partially without foundation. Regarding the interpretation of Hatam Sofer’s position that requires halakhic unanimity prior to issuing a get compulsion ruling, our examination of the aforementioned ilot gerushin does not reveal any endorsement of this view of Hatam Sofer. On the other hand, R. Elyashiv’s understanding (which is equally Hatan Sofer’s perception of his grandfather’s approach) is manifested in some of the opinions of the Poskim who will refrain from issuing a get coercion judgment in light of a minority view that rejects mandating such coercion due to the concern for the hazakah.",
+ "In short, our presentation belies the approach of Sdei Hemed, Sha’arei De’ah, Ein Yitzhak, Heikhal Yitzhak, Hazon Ish, and Dvar Yehoshua, that the legitimacy to coerce a get or not is a function of how authorities in every generation implement various halakhic tools to arrive at a determination. In certain instances, decisors may follow the majority opinion, which may or may not allow for get coercion. The fact that there is an absence of unanimity to coerce a get does not preclude a Posek from obligating a get based upon various grounds. Therefore, even in the absence of halakhic unanimity, when a husband is coerced by a beit din to give a get he is in actuality complying with the teachings of Poskim who employed the canons of decision-making rather than representing a rabbinical consensus regarding the pending matter. In Rambam’s words, upon giving the get as mandated by the beit din the husband is attentive to “his real will”."
+ ],
+ "Chapter 2; The Propriety of a Conditional Divorce": [
+ "For many years, our Torah-observant community has encountered both here, abroad, and in Israel, situations where a recalcitrant spouse chooses to condition the giving or the acceptance of a get upon certain benefits—such as receiving monetary remuneration from the opposing spouse or having certain issues related and/or unrelated to the end-of-marriage resolved in a beit din.",
+ "Let me share two cases that I have encountered in the last few years. For over five years a wife shares a bedroom with her husband and refuses to engage in conjugal relations with him and is unwilling to accept a get from her husband. Knowing very well that the majority of battei din in New York City, barring the existence of a wife’s legal title to the marital home, will not give a wife a fifty percent share of the home upon divorce, one day the wife informs her husband that “I will accept the get on condition that you transfer fifty percent of the ownership of our home to me.” He transferred fifty percent of the ownership of the home to his wife but she remained recalcitrant. Subsequently, she advanced another demand that the husband honored. Yet still the wife remained adamant about refusing to receive the get. In another case, a husband demanded hundreds of thousands of dollars from his wife in exchange for giving the get.",
+ "According to Halakhah, dissolution of the matrimonial bond requires the voluntary agreement of both spouses; failure of one spouse 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, a get me’useh (forced get). Nonetheless, in the absence of a beit din obligating him to grant a get, and in the absence of a minhag (practice) to proscribe executing a get upon fulfillment of a particular condition, there exists no halakhic impediment for a husband to stipulate that his consent at the time of seder ha-get (execution of a Jewish writ of divorce) is dependent on his wife’s compliance with certain conditions, a form of divorce known as gerushin al tenai. For example, should he specify, “I will grant you your get on the condition that you give me 200 zuz (a coin from Talmudic times),” she is divorced and she remits it. A fortiori, in the wake of the handing down of a beit din divorce judgment, financial as well as non-financial inducements brokered between the couple—whether to appease a recalcitrant husband or a recalcitrant wife—do not contravene the strictures against a coerced divorce. Echoing the view of earlier authorities in various judgments “obligating divorce”, R. Elyashiv permits a husband whose wife refuses to accept a get to appease his recalcitrant spouse by offering money in exchange for her accepting the get; the ensuing divorce is not deemed to be unlawfully coerced. Such a conclusion equally applies to a wife’s attempt to appease her recalcitrant husband by offering a material inducement. In other words, the acceptance of a material inducement avoids the strictures of a get me’useh. On the other hand, for example, in our two cases, whether such inducement advanced will be recognized depends upon whether Halakhah recognizes such agreements as exploitative or not, a matter—albeit important and of timely concern—we will not address it here.",
+ "What happens, however, in the following case? A husband requests of his spouse that the matter of parenting arrangements should be resolved in beit din. The wife refuses and summons him to civil court and a decision is rendered. Subsequently, the couple appears in beit din in order to arrange for a get and the panel obligates the husband to grant a divorce to his wife. Upon hearing the beit din’s ruling, the husband turns to his wife and says, “I am willing to comply with the beit din’s psak din obligating me to give a get on the condition that you will revisit the parenting arrangements here in beit din.”",
+ "In the wake of a beit din obligating a get, we will present the differing views regarding this issue of a husband’s demand for certain preconditions prior to giving a get in general and how various beit din panels serving in the network of Israel’s Chief Rabbinate have addressed this matter, in particular concerning a recalcitrant husband.",
+ "Our question deals with a husband who ostensibly desires to grant a get provided that a condition(s) is first fulfilled. Assuming that a beit din agrees that that there is an ilat gerushin (a ground to obligate a husband to give a get), may he demand certain conditions from his wife prior to granting the get at the time when other divorce matters are being addressed or resolved at the beit din or in civil court, which will in effect cause a delay in the seder ha-get?",
+ "Addressing the situation of a childless marriage (which served as grounds for the beit din judgment to coerce a divorce), the husband, desirous to remarry, stipulated that his wife would receive her get provided that she assent to refrain from marrying any man who was a member of the Jewish municipal government. Rashba, of thirteenth-century Barcelona, Spain, rules,",
+ "Regardless of the circumstances, anyone who is obligated to divorce cannot stipulate that she cannot marry whomever she wants, and anyone who divorces thus (under such a condition), we coerce him to divorce with a definitive divorce (get gamur) without a condition.",
+ "Seemingly, one may contend that Rashba’s opposition to imposing a condition prior to a husband’s granting a get, which appears in volume four of his teshuvot, is limited to the specific condition of the case, which circumscribes a wife’s inability to remarry anyone she desires. But, in fact, Rashba’s concluding words “we coerce him to divorce with a definitive divorce (get gamur) without a condition” teaches us that, in the wake of a beit din’s decision to coerce or obligate a Jewish writ of divorce under all circumstances, a precondition is proscribed. And, in fact, Maharsham and others understand Rashba’s position accordingly. Other authorities including Rosh, Tashbetz, and Rashbash did not explicitly mention Rashba’s view but agreed with him. Already in the sixteenth century, normative Halakhah coalesces around Shulhan Arukh’s acceptance of Rashba’s position. In fact, R. Ya’akov Castro (Maharikash), a contemporary of R. Karo (author of the Shulhan Arukh), states, “we listen to the rishonim,” a position which dates back to the Tosafot and which has been understood as prohibiting the imposition of all types of conditions. After the completion of the Shulhan Arukh in the sixteenth century, the minhag in Ashkenazic communities of Prague, Lublin, and Pozan was that any precondition was prohibited. In subsequent generations, many Ashkenazic Poskim and Sephardic authorities such as Maharashah, Mishneh le-Melekh, Levush, Arukh ha-Shulhan, R. Bezalel Ashkenazi, Mishha de-Revuta (Alfasi), Nofet Tzufim (Birdugo), Penei Hayyim, Nehor Shraga, and Brit Abraham equally agree with Shulhan Arukh that in the wake of a beit din order to obligate a divorce, a husband cannot impose any condition(s) prior to giving a divorce which will delay its giving.",
+ "Regarding the stipulation of a condition at the actual time of granting a get, the minhag in nineteenth century Navardok, Poland, and Lvov, Ukraine proscribes gerushin al tenai; in 2006, an Israeli dayan states that such was the minhag in Eretz Yisrael. In light of this prevailing practice, R. Fris, an Israeli dayan, argues that a husband ought to be prohibited equally from advancing a condition that will only delay the seder ha-get.",
+ "Notwithstanding R. Yosef Elyashiv who permits a husband to give a get contingent upon a wife’s compliance with any condition he requested, in contemporary times, some Israeli panels of dayanim including Rabbis Rabinowitz, Algrabli, and Eliezrov, Rabbis Lavi, Bazak, and Ariel, Rabbis Amar, Daichovsky, and Ben-Shimon, R. Boaron in a dissenting opinion, Rabbis Abergil, Hirscherik, and Lerer, Rabbis Amar, Daichovsky, and Bar Shalom, Rabbis Amos, Pardes, and Yanai, Rabbis Zamir, Schindler, and Ben-Menahem, and Rabbis Gamzu, Ushinsky, and Rosenthal align themselves with the majority opinion represented by Rashba and others. After a lengthy presentation of the matter, Dayan Daichovsky, writes,",
+ "Clearly, the husband cannot seek to impose any condition that he fancies, even if it is unrelated to the divorce, such as matters having to do with maintenance payments for the children . . .",
+ "An intermediate position, adopted in earlier generations by Teshuvot ha-Geonim, Riaz, and Darkhei Moshe, echoed later by R. Shalom Schwadron of nineteenth century Galicia and R. Tzvi Gartner of Jerusalem, and subsequently endorsed by numerous dayanim serving on various Israeli panels—including Rabbis Bibi, Y. Goldberg, and Prover serving on two cases, Rabbis Bakshi-Doron, Tufik, Ben-Shimon, Z.N. Goldberg, and Sherman, Rabbis Sheinfeld, Rieger, and Domb, R. Izirer, Rabbis Prover, Bibi, and Attias and Rabbis Prover, Goldberg, and Attias, contends that in cases where a beit din coerces (or, for that matter, obligates) a get, the husband can impose a condition to which he is entitled according to Halakhah—such as recovering property that his wife had stolen from him or recovering outstanding debts from his wife. This position is predicated upon the fact that Halakhah sanctions self-help (“aveid inish dina le-nafsheih”) and it is a condition that is “easy to fulfill.” For example, if the amount of the stolen assets exceeds significantly the wife’s financial ability to repay them, the parties will execute a get and subsequently the beit din will address the financial issue that was the condition of the get. Should the wife refuse to receive her get under such terms, since the husband is advancing a claim that he is entitled to according to Halakhah, we can neither coerce nor obligate him to give the get because we do not perceive the wife as an agunah. On the contrary, she has “chained herself” regarding her get. Her husband is willing to grant a get but the impediment is created by her refusal to address her husband’s outstanding legitimate claim, which is a precondition for the execution of the get.",
+ "According to this approach, what would constitute another legitimate claim that may serve as a precondition to giving a get? Let us say a husband summons his wife to resolve their end-of-marriage matters in beit din and she refuses and proceeds to have everything (except the matter of the get) resolved in civil court. After the issuance of the civil court judgment, the husband informs his wife and states, “I am unhappy with how the court divided up our assets and I want to revisit this issue in beit din and recoup my court and legal fees which were incurred while fighting you in court. Therefore, I am demanding that we now appear in beit din to address these matters and a get will only be forthcoming provided that these matters are addressed in beit din.” The couple appears in beit din and is told that there are grounds to obligate a get but, in accordance with R. Schwadron and others, the husband’s demands are legitimate and therefore will insist that these matters be addressed by the beit din prior to the get process. There is a clear prohibition to litigate one’s matters in a civil proceeding and a defendant who wanted to appear in beit din and was denied that opportunity may proceed to beit din to revisit matters resolved in court and recoup his court and legal fees. A husband therefore is entitled to revisit these matters in a beit din. As such, in pursuance to this view, such preconditions are permissible and must be addressed prior to granting a get.",
+ "On the other hand, if the husband did not summon his wife to beit din and thus willingly appeared and resolved their matters in civil court, then should the beit din direct him to give a get, the husband cannot propose any such preconditions because Halakhah does not recognize that he is entitled to revisit in a beit din any issues that were litigated and resolved in a civil court due to his acquiescence to appear in civil court. Consequently, he cannot recoup any court and legal fees. As various dayanim note, under all circumstances, Halakhah does not sanction a husband’s “forum shopping” and looks askance at the employment of such tactics for the purpose of either impeding the get process or facilitating the brokering of a more favorable divorce settlement. As such, in pursuance of a beit din’s divorce action to obligate a get, he is duty-bound to participate in the divorce process without foisting any such preconditions upon his wife.",
+ "Our aforementioned conclusions regarding a wife who summons her husband to court despite the husband’s protestation to resolve matters in beit din, and of a couple who both agree to have their issues handled in court rather than beit din, assume that we are dealing with Torah-observant Jews. However, should we be dealing with a secular Jewish couple where the wife for decades has resolved her monetary matters in civil court and her husband voluntarily appears in this judicial forum to resolve their end-of-marriage issues, one cannot countenance a husband’s request to discontinue their litigation in court and proceed to beit din and demand such an action as a precondition to granting a divorce. In this instance, acceding to the husband’s request",
+ ". . . is in some ways a desecration of God’s name. Many of those who demand adjudication by Torah law do not really seek [to comply with] Torah law, but rather material benefits. They use the Torah for personal gain . . . to advance an obvious interest. This is true of our case too, when the husband cynically embraces Torah law to force his wife to obtain a divorce in a manner that accords with his interests, even when he is obligated to grant the divorce.",
+ "Finally, there is another approach dealing with a yavam who insists on the fulfillment of a condition prior to executing a halitzah, albeit a shitat yahid (a minority opinion), which as we will show has garnished significant support amongst many dayanim who served and/or continue to serve on panels within the network of Israel’s Chief Rabbinate. The background for this view emerges from a story that unfolds in sixteenth-century Salonika of the Ottoman Empire, where a Jewish girl was betrothed to a Jewish male peer who passed away unexpectedly. Since the couple never formally consummated the marriage, there were no children. Therefore, the boy’s brother, an older man with a wife and children, became obligated either to marry this girl due to the mitzvah of yibbum or release her by means of halitzah (lit. untying a shoe) and thereby free her to marry another man.",
+ "The surviving brother-in-law was aware that this young woman had a Jewish uncle who desired to marry her despite the girl’s preference to marry a younger man. Additionally, the wife’s uncle was a relative of the yavam. Worried that the uncle’s wife (his relative) would divorce his aunt, the brother-in-law was hesitant to perform the halitzah and thereby facilitate the girl’s ability to marry his uncle. Seeking to protect the uncle’s wife from a potential divorce, he was willing to perform the ceremony of halitzah only on the condition that the uncle would refrain from marrying the young girl after the halitzah rite, i.e. halitzah al tenai (conditional halitzah).",
+ "Addressing the factual context of the case, R. Shmuel de Medina (known by the acronym: Maharashdam) writes,",
+ ". . . the levir is a decent man, and his sole intention is that his brother’s widow not marry her uncle . . . and the intention of her uncle is to divorce his wife, who is the levir’s aunt, and marry the young woman. To this I say, because this matter depends on this, that it is proper for her (the widow) to make herself unavailable to this man by every stringent means possible, and the same goes for the husband of his aunt, so as to bring the matter to a satisfactory conclusion that is not contested or doubted, and inspires confidence so that the levir can grant the levirite release, and we will not need to resort to any sort of compulsion.",
+ "Dealing with a family situation of extreme sensitivity, Maharashdam empathizes with the yavam’s attempt to protect the welfare of his relative, the uncle’s wife, as well as the young girl’s best interests. As such, implicitly subscribing to the view that a yavam’s precondition to halitzah is permissible and rejecting the Shulhan Arukh’s ruling, he refrains from compelling a halitzah out of fear and trepidation of the dire consequences resulting in the invoking of such a position.",
+ "What was the basis for his ruling? In his introductory remarks to the aforementioned teshuvah, Maharashdam notes,",
+ "After I wrote and signed my name to the written and signed ruling above, I constantly wondered whether I would find support for what I had written, namely, that given that the levir wants to grant the levirite release, but with the intention that his brother’s widow who is subject to levirate marriage . . . [to him] not [if released] marry her uncle, who is married to his aunt, if so, it is impossible to compel him grant the levirate release under any circumstances . . .",
+ "But until now I have not found a source for this, and in searching the laws of [stipulating] conditions . . . I found written in . . . Hazeh ha-Tenufah that even in the case of one who grants a bill of divorce to his wife with the intent . . . that she not go to her father’s home, the divorce is effective and the condition stands. Yet no one should allow the granting of a divorce on such a condition, for there is no doubt that this condition cannot be fulfilled, as it is impossible that she should not go to her father’s home . . . If the husband granting the divorce is one of those who was compelled [by the court] to do so, and does not want to grant the divorce except on this condition, we do not listen to him, and he is compelled to grant the divorce without this condition.",
+ "Invoking Talmudic legal reasoning of “medameh milta le-milta” (lit. comparing one matter with another), Maharashdam finds a fruitful source of comparison in Hazeh ha-Tenufah’s ruling regarding divorce. On the basis of Hazeh ha-Tenufah’s opinion, invoking a tradition dealing with halakhot of divorce attributed to Rosh, Maharashdam’s reply is that, just as setting conditions prior to giving a get is permissible regarding a divorcing couple, similarly the halakhot of yibbum (levirate marriage) allow for the imposition of conditions. Therefore, one cannot obligate the brother-in-law to undergo halitzah. Moreover, adds Maharashdam, the condition must be “easy to fulfill.” Clearly, he argues, it is easy for the uncle to refrain from marrying his niece. On the other hand, in divorce situations, a condition which is “almost impossible to fulfill,” such as mandating that a divorcing wife should refrain from returning to her father’s home or to move away from her family, Maharashdam and numerous Poskim would argue that a husband cannot mandate as a condition to receiving a get. Therefore, in cases where we are dealing with a condition that can be easily executed, should a wife refuse to comply, she is responsible for impeding the execution of her own divorce.",
+ "Though, to the best of my knowledge, we find only a few Poskim who possibly subscribe to Maharashdam’s position, nonetheless, as noted by others, by dint of his authoritative status and due to the concern for hezkat issur (presumptive prohibition) of the stringency of an eishet ish (a married woman), Maharashdam’s view became the basis in recent years in some Israeli battei din for validating a husband’s right to impose various conditions upon his wife prior to granting a get where the condition is “easy to fulfill”. In accordance with Maharashdam’s position, the justification in allowing a husband to set a precondition(s) that is easy to fulfill prior to executing a get stems from the fact that Halakhah did not mandate coercion because she is not an agunah, rather than due to a husband’s entitlement to delay the get process.",
+ "There have been varying interpretations of the scope of Maharashdam’s view in general and the type of condition that would be permissible in particular. One approach is that a beit din will recognize any condition that is legitimate in the eyes of Halakhah provided that the condition is easy to fulfill, such as recovering property that his wife had stolen from him or recovering outstanding debts from his wife. On the other hand, an example of a condition that is not easily fulfilled by a wife is a husband mandating that his spouse dress properly and/or consume certain foods. Similarly, according to the majority of battei din under the Chief Rabbinate, any condition that will emotionally or financially affects the wife is illegitimate. Hence, extortion as a precondition for granting a divorce is prohibited. Whereas the intermediate position only requires that the demand be halakhically legitimate, Maharashdam requires that the condition be “easy to fulfill” as well as halakhically valid.",
+ "Alternatively, Maharashdam’s view is understood to encompass all conditions that a husband may fancy, even those that are at variance with Halakhah. It has been contended that dayanim extrapolated such an interpretation from reviewing an excerpt of his opinion found in Ba’eir Heitev, a digest found in current editions of Shulhan Arukh on Even ha-Ezer, which was authored by R. Yehudah Ashkenazi, an eighteenth-century Lithuanian authority. He writes,",
+ "And when do you coerce [a get]: when he refuses to divorce. However, if he wants to divorce on condition [assuming the precondition is complied with], we do not coerce.",
+ "Based upon this citation, one would conclude that any condition, regardless of its halakhic legitimacy, ought to be permissible. In bold contrast to the interpretation offered by R. Yitzhak Elhanan Spektor and expositions dating back to the late 1990s of the late R. Elyashiv z”l, a gadol ha-dor for Ashkenazic Jewry, R. Landesman, a veteran dayan and Av Beit Din of Kollel ha-Rabbonim in Airmont, NY and R. Tzvi Gartner and R. Yosef Goldberg, both leading experts in the realm of get coercion, understand Maharashdam in accordance with Ba’eir Heitev’s understanding. In fact, some battei din analyze Maharashdam’s position by citing Ba’eir Heitev rather than the text of his actual responsum.",
+ "Subsequently, numerous dayanim followed in their footsteps and conclude that the type of condition that a husband may demand prior to granting a divorce must be “easy to fulfill.” Obviously, it will be left to the beit din’s discretion to determine which conditions are easy for the wife to comply with and which are impossible to fulfill. Obviously, R. Elyashiv was of the opinion that a husband’s “excessive demands” in a particular case were to be viewed as “easy to fulfill” and therefore a legitimate precondition prior to a husband’s giving a divorce. On the other hand, Dayan Lavi rejects a husband’s demand to reduce a father’s child support as a precondition to granting a divorce that would be impossible to fulfill. Yet, in another case, Rabbis Abergil and Hershrik recognize such a condition as legitimate. In short, addressing the gray area, a condition that may fall in between a condition that is easily fulfilled and a demand that would be impossible to fulfill, is up to the beit din’s discretion whether to allow a husband to stipulate this precondition prior to giving a get.",
+ "Furthermore, a review of some of these decisions indicates that dayanim implicitly feels that a husband’s demand to revisit parenting arrangements (custody or visitation) or child support orders set down in civil court were “easy to fulfill” conditions. Two panels took the unusual position that an abusive husband could impose a condition that his children receive a Torah education prior to a beit din compelling a divorce. On the other hand, Rabbis Landesman and Daichovsky, as well as some other dayanim, take the position that Maharashdam’s ruling was limited to conditions relating directly to the divorcing couples. However, preconditions relating to child support and parenting arrangements that entail a third party’s best interests may not serve as a reason to delay a seder ha-get. In fact, a parent advancing a claim on behalf of his/her child in beit din is actually representing his child and hence must submit claims that promote the child’s best interests. Even with the absence of beit din involvement, any agreement finalized between the divorcing parents regarding their children must promote the child’s best interests. Should an agreement undermine these interests, the agreement is null and void. As such, any conditions dealing with child support or parenting mandated by the husband prior to the granting of the get are invalid.",
+ "Given that Maharashdam’s distinction between a condition which is “easy to fulfill”, such as “she will not marry a particular person”, and a condition that is “impossible to fulfill”, such as “that she will not go to her father’s home”, are all non-financial conditions, Dayan Lavi concludes that all financial conditions are invalid, regardless of their reasonability in terms of compliance.",
+ "Finally and significantly, one must take cognizance of the factual context of Maharashdam’s ruling,",
+ "There is doubt that even those Sages in the Mishnah who said they compel . . . did not say that they compel him to grant a divorce unless he does not want to grant a divorce at all. But, if he wants to grant a divorce, but wants to impose some condition for granting the divorce, as to this, they certainly did not say that they compel him to grant a divorce unconditionally.",
+ "To state it differently, his ruling is limited to an instance of demanding a precondition prior to giving a get where a husband sincerely intends to become divorced and demands a precondition prior to undertaking the get process. However, in a situation where the husband has no interest in giving a get and imposes a demand in order to simply stonewall the get process and leave his wife an agunah or negotiate a more favorable settlement, clearly Maharashdam’s position does not contemplate validating imposing any precondition, even one which is “easy to fulfill”, under such circumstances. And, in fact, R. Menasheh Klein understands Maharashdam’s ruling to be limited to a husband who sincerely intends to grant a get. As R. Yehuda Fris, who serves as av beit din on the Ma’aleh Adumim Beit Din le-Mamonot, writes in trenchant terms,",
+ "When a beit din hands down a divorce judgment which directs that the get ought to be coerced, and the husband appears and announces that he is prepared to give a get after his wife transfers monies to him, nullifies claims in civil court and the like. In such a case he is not requesting to impose “a condition regarding the get” (tenai ba-get); rather he is petitioning to impose a condition “to the get” (tenai la-get). In other words, there is no consent to divorce accompanied by a condition to granting a get, but rather the imposition of a condition to the actual execution of the divorce and implementation of the beit din decision. In practice, in this context there is no imposition of a condition, but a husband’s opposition to implement a beit din judgment which obligates him to divorce . . . this request was never mentioned in Maharashdam’s words . . .",
+ "Our scholars . . . established grounds for get coercion (see Shulhan Arukh, EH 154) and if a husband is permitted to establish conditioned and delay the get process in these instances, “what have our scholars gained by setting their guidelines” (See Radvaz 1:157)?",
+ "Or addressing those who interpret Maharashdam’s position as encompassing even conditions that are at variance with Halakhah, R. Landesman exclaims,",
+ "Is it logical to say that a husband controls such a matter to the extent that he can prevent the execution of a beit din decision by imposing any condition? Remember, concerning other claims between man and his neighbor that one can coerce a beit din judgment of “obligated to pay” and he refuses to implement the decision, should we say that one who is obligated to pay is empowered always to delay the implementation of a judgment by imposing any condition upon the opposing party? I wonder.",
+ "More recently, the Beit Din ha-Rabbani ha-Gadol of Yerushalayim notes, “In a situation where the husband’s claims are unjustified and he attempts to extort from his wife concessions that are unjustified, we need to reject his claim and obligate him in a get.”",
+ "Furthermore, in R. Fris’s estimation, stipulating a condition that is “easy to fulfill” only applies, according to Maharashdam, prior to a beit din’s ruling that one is obligated to give a get. However, once beit din renders such a judgment, there can be no delay in executing the seder ha-get. At best, for Maharashdam, the husband may insist on a condition for granting the get. However, given that today gerushin al tenai is not practiced, R. Fris concludes that his view is contemporaneously inapplicable.",
+ "In sum, there are four differing interpretations of Maharashdam’s position. Firstly, preconditions which are recognized by Halakhah and which are easy to comply with are grounds for delaying the get process. Some decisors contend that even claims that are against Halakhah will be permitted as preconditions as long as they are easy to fulfill. Furthermore, other authorities argue that the conditions must be non-financial in order to pass muster.",
+ "Finally, some Poskim claim that one may invoke his position only with regard to instances where the husband sincerely intends to grant a get. However, in situations where the advancing of demands either seeks to stonewall the get process and leave the wife an agunah or to serve as a negotiating tactic to gain a more favorable divorce settlement, such conditions will not be recognized.",
+ "Despite the fact that the factual context of Maharashdam’s ruling dealt with a man who sincerely was willing to perform a halitzah (and by inference was applied by him to a husband who was willing to give a get), nonetheless, in recent years dayanim have expanded his ruling to encompass situations where the husband attempted to forestall the get process by demanding certain conditions be addressed. For example, partially relying upon Maharashdam’s view, Rabbis Rabinowitz, Algrabli, and Eliezrov issue a judgment coercing the husband to give a get since “he neither wanted shalom bayit (matrimonial reconciliation) nor wanted to divorce his wife, only the imposition of conditions.” In another instance, eight months after being obligated by a beit din to give his wife a get, a husband appears in beit din and states that he is ready to grant a divorce on the condition that she agrees that the authority to resolve matters of property and maintenance be transferred from civil court to the beit din. Here again, his approach is examined, this time by Rabbis Prover, Y. Goldberg, and Bibi, who are dealing with a husband who has been delaying giving a get due to apprehension regarding whether the court will rule in favor of his claims and therefore now wants his issues adjudicated in beit din.",
+ "In another instance, an Israeli husband fled to Holland, remarried a non-Jewish woman, sired a child from the relationship, and abandoned his wife in Eretz Yisrael who has been an agunah for eight years. After a series of negotiations between the couple, the husband agreed to grant a divorce, assuming that that custody of his child will be transferred to him and that he would receive the tens of thousands of dollars of maintenance that the wife collected from Israel’s national insurance. Subsequently, determining that there were grounds to give a get, two Israeli Jews meted out physical coercion and a get was procured from the husband. However, given that the husband had certain preconditions prior to the issuance of the divorce and a beit din did not address if he could be coerced (much less physically coerced) without first complying with his demands, there existed a doubt regarding the validity of the divorce. Clearly, the circumstances of this case belie a husband who is a non-observant Jew and for eight years recalcitrant regarding the get, who ostensibly changes his mind and is ready to give a get but attempts simultaneously to extort monies from his wife. At the end of the day, third parties realize that a get will only be forthcoming if he is physically coerced. Yet, both Rabbis Bar-Shalom and Nadav, and later Rabbis Mordechai Eliyahu and Shalom Messas, who subsequently became involved in this case, factor into consideration Maharashdam’s view which addresses a Torah-observant husband who genuinely wants to perform halitzah and a husband who is willing to give a get to his wife. In short, these cases are being resolved by invoking Maharashdam’s position, despite the fact that the context of his decision is markedly different than the three aforementioned cases, which deal with non-observant husbands who are manipulative and recalcitrant, regarding the giving of a get.",
+ "Except for one decision, in the majority of cases that have been published, whether a panel chooses to subscribe to the majority opinion represented by Rashba and others and to reject Maharashdam’s position or to accept his view, there is no inquiry into the husband’s motivation at the time he decides to advance his demands. Though many facts of the case are communicated in the decision, which potentially may facilitate distilling the husband’s motives in raising such preconditions, the beit din chooses to focus upon his position in general and whether the conditions are “easy to fulfill” or not in particular. Here again, these panels are implicitly positing that Maharashdam’s approach applies both to a recalcitrant husband as well as a sincere husband who desires to participate in the divorce process. The aforementioned battei din’s need to invoke his ruling in cases of a manipulative husband stems from “the gravitational pull” to avoid the strictures of a get me’useh with its accompanying consequences of contributing to the proliferation of mamzerim. In other words, it is incumbent upon a dayan to exhaust every possibility to avoid the strictures of a coerced get. As such, if there is a possibility that the husband will divorce voluntarily, such as by demanding a certain precondition prior to the seder ha-get, we are proscribed from coercing him. As Maharashdam notes regarding the situation of the levirate marriage, “This is the straight and clear path, in my opinion, so as not to engage in compulsion.”",
+ "Similarly, he states concerning the matter of divorce, “There is no doubt that compelling him to grant an unconditional divorce contributes to the proliferation of mamzerim.”",
+ "Undoubtedly, the factor of hezkat eishet ish plays an important role, which may lead to a psak that is stringent in order to avoid potential mamzerut. However, this presumption that concerns Maharashdam ought to play no role in our scenario, as it deals with a crafty and manipulative husband who engages in get recalcitrance!",
+ "Nevertheless, despite the inapplicability of his ruling to our case, hezkat eishet ish has propelled some dayanim to arrive at such a conclusion and issue a decision that permits a husband to impose preconditions prior to the seder ha-get. Nonetheless, as we have shown, there is no basis for a beit din to invoke such a presumption in our situation. It lacks a basis because the emergence of the centrality of hezkat eishet ish by Maharashdam was propounded within the context of particular fact pattern, facts that are readily distinguishable from the set of our facts of our scenario.",
+ "Final Afterthoughts: A Halakhic Desideratum",
+ "Rabbi Lavi, av beit din of Netanya Regional Beit Din, writes the following,",
+ "Here in our beit din we have authored in some of our decisions that according to halakhah we do not follow Maharashdam, given that many disagree with his view. Even according to this position, any condition that one cannot implement immediately, which is usually the case, which means delay in the divorce process in circumstances of separation and an obliging divorce judgment, is a condition that is not easily fulfilled.",
+ "In other words, implicitly following in Shakh’s footsteps, Dayan Lavi contends we should follow the majority opinion, which proscribes a beit din from sanctioning a husband’s right to advance a demand for insisting on the fulfillment of certain conditions prior to giving a get.",
+ "Seemingly such a conclusion is open to challenge. Invoking hilkheta ke-vatrai (lit. the Halakhah is in accordance with the view of the later authority) Rema states,",
+ "In all cases where the views of earlier authorities are recorded and well known and the later authorities disagree with them . . . we follow the view of the later . . . However, if a responsum by a Gaon is found that had not been previously published, and there are other [later] decisions that disagree with it, we need not follow the view of the later authorities . . . as it is possible that they did not follow the view of the Gaon, and if they had known it they would have decided the other way.",
+ "Seemingly, one can infer from Rema’s ruling that the “batrai” (lit. the later authority) in our scenario is Maharashdam, who lived in the sixteenth century, well after the “kadmai” (lit. the earlier ones), and may challenge and overrule the earlier authorities. Consequently, despite the majority view, which had crystallized in earlier generations, we ought to show deference to Maharashdam’s opinion, which supports the permissibility of a husband’s imposition of conditions. Nonetheless, this interpretation of hilkheta ke-vatrai has been rejected by all rishonim (early authorities).",
+ "The decision-making rule of hilkheta ke-vatrai is not to be viewed as a rule that empowers a later authority to overrule the opinion of an earlier authority, but rather as one that allows a posek to examine the various views regarding an issue and identify the ‘batrai’ and follow his position. However, as noted by Rema, ascribing to the view of the ‘batrai’ is contingent upon the fact that the later authority knew of the early authority. In our case, as R. Yanai points out, it seems that Maharashdam did not have access to R. Yosef Karo’s Bedek ha-Bayit, which was published in 1605, fifteen years after Maharashdam’s demise, as well as volume four of Rashba’s teshuvot, which appeared over a hundred years after his death. In fact, there is equally no mention in the entire teshuvah of earlier authorities such as Rashba, Rashbash, and Tashbetz, who differed with Maharashdam. Therefore, it is unsurprising to find the following admission. After a detailed discourse on the halakhot of yibbum, Maharashdam concludes his responsum by stating,",
+ "But, until now I have not found a source for this [i.e. haskamah le-gerushin al tenai –AYW], and in searching the laws of [stipulating] conditions, I found in . . . Hazeh Hatenufah . . .",
+ "Consequently, in the absence of any examination, much less awareness, of these opposing views, the rule of hilkheta ke-vatrai is inapplicable and therefore Maharashdam’s position cannot be determinative.",
+ "Based upon our foregoing presentation, we have analyzed the relative strength, effectiveness, and plausibility of the three approaches to allowing a husband’s precondition prior to giving a get. In pursuance to the rule of rov, majority rule, and the inapplicability of hilkheta ke-vatrai, it is our opinion that once it is clear that there are grounds for obligating a get, a beit din ought to be unwilling to accept a husband’s demands as a precondition to granting a divorce. The underlying rationale for this conclusion is that once there are grounds to obligate a get, there is no need to be concerned about halakhically illegitimate conditions advanced by the husband, in particular where the husband’s motivation for raising these demands is to manipulate and obfuscate the process. Echoing the Rashbash’s view and R. Yanai’s, R. Landesman writes,",
+ "Is it logical to say that a husband controls such a matter to the extent that he can prevent the execution of a beit din decision by imposing any condition!!",
+ "Furthermore, all of these conditions, such as modifying parenting arrangements, reducing child support, changes in a child’s schooling, addressing marital assets, extortion of monies, discontinuing a civil proceeding, and revisiting the claim(s)in beit din, etc., are unrelated to the actual delivery of a get. Addressing a wife’s breach of a divorce agreement that provided that the husband would only grant a get if certain items would be returned to him, Mahariz Enzel is posed with the question whether we must declare that “the giving of a get is in error,” a get muteh which results in the need for arranging for a second get, due to the fact that the husband will argue “had I known she would renege on her commitment to return items, I never would have agreed to give her a get,” and he states",
+ "God forbid that we should cast aspersions on this proper get, since he did not divorce her in order to recover some items but rather due to strife and hatred between them. The fact that a settlement was brokered that he would receive these items in exchange for a get are two different matters and neither one is dependent upon the other . . . There is no error in the divorce since both desired to become divorced and if he was delaying to give the get until she returns everything . . . this is a means of coercion and revenge that he makes her an agunah until she returns it to him . . . and he only has a claim for the items.",
+ "According to Mahariz Enzel as well as others, one must distinguish between reasons that are related to the grounds for the divorce and reasons that, though advanced at the time of divorce, are unrelated to the grounds for the couple becoming divorced. As such, a wife’s plea that her husband rapes and abuses her or a husband’s claim that his wife is refraining from engaging in conjugal relations are claims directly related to the granting of the get. In Mahariz Enzel’s case, the husband divorced his wife due to feelings of hatred rather than because she refused to return some objects belonging to him. Therefore, it becomes a beit din’s responsibility to address this type of claim dealing with animosity in order to assess whether there are grounds for obligating a divorce. Once such determination is completed, the beit din will issue its directive for the couple to divorce. Upon the issuance of the divorce judgment, the only outstanding matter is simply whether the parties – and, in our cases, the husband – comply with the beit din’s judgment.",
+ "On the other hand, all reasons that are independent and unrelated to the grounds for divorce, such as the husband’s demand that his wife return certain objects, are subsumed under the category of gerushin al tenai and are invalid. And if the husband grants a get on the assumption that he will receive these items and the wife deceives him by failing to comply with his request, then, in accordance with Mahariz Enzel and others, there are no grounds for a divorce annulment. In other words, there is no basis for demanding conditions that are unrelated to the grounds for the divorce.",
+ "In conclusion, many Rishonim, Shulhan Arukh, and Aharonim insist that the get process be commenced once a beit din judgment has been handed down without deferring to a husband’s series of demands. And should a husband have halakhically legitimate claims that are unrelated to the giving of the get, such as recovering property that his wife had stolen from him or recovering outstanding debts from his wife, then prior to the seder ha-get the parties ought to sign off on an arbitration agreement empowering the beit din to resolve these matters after the get has been delivered to the wife. In effect, in the wake of a beit din’s decision to obligate a husband to grant a get, we suggest following in the footsteps of the majority opinion by invalidating any precondition(s), while invoking Maharsham and others who recognize the husband’s entitlement to deal with certain issues of halakhic import, albeit as matters which ought to be addressed after the seder ha-get has been completed.",
+ "Seemingly, adopting majority position that upon obligating the giving of a get without allowing the husband to state preconditions will create a situation of “a get mut’eh”. In other words, in such a situation should the get be executed, the husband could argue that “had I known that my conditions wouldn’t have been complied I never would have given the get”. In fact for some Poskim, a get mut’eh situation would have been created and a second get would be required.However, the majority of authorities reject the notion of “a get mut’eh”.Consequently, the majority of decisors who endorse the position that a beit din may obligate a get without permitting a husband to set conditions prior to its execution implicitly are following in the footsteps of the majority of Poskim who reject the concept of a get mut’eh.",
+ "Said conclusion that a husband’s precondition will not be permitted in the wake of a beit din’s decision either coercing or obligating a Jewish writ of divorce may be explained in jurisprudential terms. For instance, according to the conventional example of the gunman, if gunman A tells B, “Your money or your life,” B has a choice. Should B decide to give A his money, we do not consider B’s decision voluntary. We consider this a robbery rather than a consensual transfer of property. On the other hand, if B has a life-threatening disease and doctor A offers to treat him for fair remuneration which upon payment will dissipate B’s life’s savings, if B opts for the treatment, he may say that A’s offer was “an offer he could not refuse,” or that he had no rational choice but to accept the doctor’s proposal. Should B accept the offer, we would not consider B’s acceptance involuntary.",
+ "Both offers by the gunman and physician convey the same message in which A tells B:",
+ "1. If you do x, then z.",
+ "2. If you do not do x, then not z.",
+ "To state it differently, gunman A informs B that if he gives A money, A will spare B’s life; but if he fails to give him his money, A will die. The doctor A tell B that if he consents to pay a fee, A will treat his disease; but if he does not accept A’s offer, A will not treat him.",
+ "Given that both the gunman and doctor are giving the identical message, what distinguishes one offer from the other? Why would we conclude that in the gunman scenario B’s decision is given under duress, while in the case of the doctor, we think that B’s decision is voluntary? One possible solution is that the gunman’s offer is coercive while the doctor’s offer is not coercive.",
+ "The question, then, is what makes one offer coercive and the other not coercive? Various moral philosophers argue that the benchmark, or what they call “the baseline”, entails whether morality dictates if a proposal is coercive or not. In the gunman scenario, B has a moral right not to be placed in the position of choosing between his money and his life. Since the gunman’s offer is worse than what B is morally obligated entitled to—the moral benchmark of retaining his life and his money—the offer is coercive and therefore B’s decision is involuntary. On the other hand, in the case of the physician, B is not morally entitled to be cured by A gratis. Given that the offer is better than what B is entitled to (avoiding B’s death), the proposal is not coercive, and therefore we view B’s decision as voluntary.",
+ "Based upon the foregoing, is our conclusion that prohibiting the imposition a husband’s precondition prior to executing a get that a beit din has mandated identical to the dilemma of the scenario of the physician or the gunman? Clearly, in our divorce situation, by dint of the fact that a beit din is either coercing or obligating the husband to grant a get, the moral baseline is that the husband is obligated to deliver a get without the setting down of any precondition. The beit din’s judgment that there are grounds for giving a get informs us that a husband’s proposal is coercive due to the fact that it worsens what the wife is halakhically entitled to receive, namely her get. Therefore, such conduct cannot be countenanced. In short, allowing a husband to impose a precondition is no different than a gunman A who tells B, “Your money or your life.”",
+ "May it be the will of Ha-Shem that we return to learn this topic in response to an inquiry, a study without practical application, in the format of “derosh ve-kabbel sakhar.”"
+ ],
+ "Chapter 3; A divorcee's relief from the consequences of an exploitative divorce agreement": [
+ "For many years, our Torah-observant community has encountered both here in the United States and abroad, situations where a recalcitrant spouse chooses to condition the giving or the acceptance of a get upon receiving certain benefits such as receiving monetary remuneration from the opposing spouse, receiving custody of a child, or having certain issues related and/or unrelated to the end-of-marriage resolved in a beit din. Such conduct raises halakhic issues, which we will address here. At the conclusion of our presentation, we will raise the practical significance of this limmud (study) for our community.",
+ "Let me share a few cases that I have encountered in recent years:",
+ "1. For over five years, a Hassidic wife shared a bedroom with her husband and refused to engage in conjugal relations with him and was unwilling to accept a get from her husband. Knowing very well that the majority of battei din in New York City, barring the existence of a wife’s legal title to the marital home, will not give a wife a fifty percent share of the market value of the marital home upon divorce, one day the wife informed her husband “I will accept the get on condition that you transfer fifty percent of the ownership of our home to me.” He transferred fifty percent of the ownership of the home to his wife but she remained recalcitrant.",
+ "2. In another scenario, a wife refused to receive a get unless her husband would transfer a certain sum of money to her.",
+ "3. A non-Orthodox wife, in another case, was recalcitrant regarding the get, which her Orthodox husband requested her to accept, due to an outstanding monetary claim that was still unresolved after a few years of marital separation.",
+ "4. A husband from the Yeshiva community whose wife earned significantly more income than him demanded hundreds of thousands of dollars from his wife in exchange for giving the get.",
+ "5. A Conservative Jewish husband, in another situation, attempted to extort his wife for a significant sum of money as a precondition to giving a get.",
+ "6. In another scenario, due to the lack of the husband’s creditworthiness, the wife possessed title to their multimillion-dollar home in Beverly Hills, Los Angeles. Gradually, the husband borrowed three million dollars against the equity of the home in order to purchase real estate. The couple decided to divorce and the husband refused to give a get unless he received fifty percent of the market value of the couple’s home.",
+ "Each of these stories are examples of one spouse extorting another for monies in exchange for giving or receiving a get. Aware that an offer on the table entails an exploitative agreement, prior to agreeing to the offer, the initial question is whether a mesirat moda’ah” (a notification of duress in the presence of two witnesses who will testify to the exploitative nature of the agreement and indicating that at the first opportunity he intends to undertake steps to undo the agreement) by the distressed party will be effective? Addressing a matter of kiddushin (halakhic betrothal), a Talmudic passage relates to us the following incident,",
+ "A certain man wanted to betroth a woman, and she told him, ‘If you transfer the title of all your property to me, I will become betrothed to you; otherwise not.’ Therefore, he assigned all his property to her. In the interim, his oldest son had come to him and said, what about me? He took witnesses and he informed them, ‘Proceed and hide yourself in Eber Yamima and write out a transfer of my property to him.’ The case came before Raba and he decided that neither party had acquired title to the property. Those who witnessed this proceeding thought that Raba’s reasoning was because the one deed was a moda’ah with respect to the other. This is not entirely correct. [The secret gift] in that case did nullify the transfer because it demonstrated that the assignment was made under coercion. Here, however it is clear that the donor’s desire is that the one (the son) should receive title rather than the other one should possess it.",
+ "This incident is cited in Shulhan Arukh, who invalidates a gift made under duress.",
+ "Seemingly, as noted by Rabbi Sha’anan, the same conclusion ought to apply to divorce. Just as we encountered that when a woman refused to betroth herself to a man without property and the man was thus pressured to obligate himself in the giving of the piece of property, the acquisition was voided; similarly, if a wife obligated herself to give something to a husband who refuses to divorce his wife without receiving property and the wife thus obligated herself to give something, the acquisition may be voided based upon a mesirat moda’ah.",
+ "Nonetheless, given that the argument to void the divorce agreement in each case is based upon a mesirat moda’ah executed a few years ago, the cases are complicated further. It is a matter of debate whether a claim for duress must be advanced prior to the execution of a get or even may be raised after the get has been given.",
+ "Assuming there was no mesirat moda’ah, is there any relief that the coerced party can seek in beit din?",
+ "The purpose of our presentation is to delve into the issue regarding the propriety of such a divorce agreement, where a wife waives her entitlement to her husband’s marital duties—such as support—or monies are paid in exchange for giving or receiving a get? When is such an agreement halakhically proper and when is it viewed as exploitative? Is the agreement exploitative where the weaker party has no choice but to acquiesce to unfair terms of the agreement? Are there “objective“ criteria that determine that an agreement is unconscionable, namely that signing off on such an agreement was coercive and/or the terms of the agreement are reasonably unfavorable to one party? May the agreement be voided once compliance with the agreement’s terms has commenced?",
+ "Let us address these questions in the context of the following scenario. Hypothetically speaking, a couple mutually agrees that “their marriage is dead” and reconciliation is not an option. The couple has been separated for over a year and all end-of-marriage issues have been resolved, yet the husband refuses to give a get. Extorting his wife, one of the terms of the divorce agreement mandates that the wife pay three hundred thousand dollars in exchange for the husband giving the get.",
+ "In terms of the halakhot of ones (duress), it is clear that regarding a sales transaction “agav onasa ve-zuzei gamar u-makneh” (loosely translated, in a situation of coercion he resolved to execute the sale by paying for the item). Whether the coerced party must simply obligate himself to pay or must actually remit payment is subject to debate. However, the consensus is that the obligation to pay or the actual repayment will bring finality to a sales agreement executed under duress. This same conclusion ought to apply to an agreement, such as a divorce agreement, executed under duress and would not run afoul of the strictures of a get me’useh, a coerced get. Consequently, a divorcee would be unable to recoup the excessive fee.",
+ "Given the finality of an agreement executed under duress, the question is whether the term of the divorce agreement regarding payment of $300,000 in exchange for the get is exploitative and oppressive. A Talmudic passage conveys to us the following,",
+ "If a person fleeing from prison (unjustly imprisoned –AYW) came to a ferry and said to the ferryman: “Take a dinar to ferry me across the river,” he would still have to pay him the customary fee. This shows that he may say “ I was merely jesting with you” . . . But if he says “take this dinar for your compensation” and he ferried him across the river, he must pay him his fee. Why is there a difference? . . . (In the latter case –AYW) we are dealing with a boatman who is also a fisherman . . .",
+ "Whereas in the first case of the ferryman we are dealing with a situation where an exorbitant fee is being charged for his services and consequently the Talmud concludes that the ferryman is only entitled to the market fee for his services, in the second case we are dealing with a boatman who equally works as a fisherman. Given that he lost the opportunity to trap fish by offering his services to the fugitive, therefore he is entitled to receive a fee for his loss of compensation for his fishing. In effect, the basic rule that emerges from this passage is that a person is able to charge the market fee for his services. A fee that exceeds this amount allows a person (in this case a prisoner) to claim “hashatah”, I was joking with you. In other words, the fugitive was not earnest when he agreed to pay an outlandish fee for being ferried across the river to safety and therefore he may remit only the market fee. In short, should the boatman incur a loss and/or charge a fee that exceeds the market fee, the jesting rule is applicable. He is entitled to recoup from the boatman the differential involved.",
+ "Our case of the ferryman who saves the fleeing prisoner entails the performance of the mitzvah of hashavat aveidah, the restoration of a lost object. It is noteworthy that the Talmud extends this positive obligation to encompass the saving of human life. Seemingly, given that the boatman’s act involves the performance of a mitzvah, he should be proscribed from being compensated. In particular, since there was nobody else present to save his life, he ought to have performed his duty without compensation! Nonetheless, there are certain exceptions to this rule, one of which is finding a lost object and restoring it to its owner while working. Consequently, a ferryman who saves an individual during his working hours is entitled to receive compensation for his time investment and any loss incurred by being unable to attend to his work. As such, assuming the fugitive proves that the fee charged exceeded the ferryman’s fee for ferrying as well as compensation for his inability to work as a fisherman, the prisoner ought to be able to recoup the price differential.",
+ "At first glance, our explanation seems to stand at variance with the Talmudic reason that offers the rationale of hashatah (the jesting rule), that in fact the prisoner never firmly resolved in his own mind to give an exorbitant figure and therefore he is exempt from payment. In accordance with our understanding, the Talmud should have advanced the argument that requesting an outlandish fee is proscribed because the ferryman, while working, was engaged in a mitzvah while working and was therefore entitled to charge only for the loss of time investment and any attendant loss. The Talmud informs us that since he is in a distress situation, the prisoner may exclaim, “I am joking with you” due to his distress situation, we are being taught he is exempt from paying the agreed-upon amount. On the other hand, the Talmud insinuates that if such an argument cannot be raised, he remains duty-bound to pay the agreed amount by dint of the fact that he must comply with the undertaking of any obligation—despite the fact the boatman was engaged in a mitzvah. To state it differently, whether the prisoner is obligated to pay the agreed amount is dependent whether there was gemirat da’at (loosely translated as “a meeting of the minds” or firm resolve) between the parties. The presence of distress precludes the existence of gemirat da’at.",
+ "The outstanding issue is whether the execution of a kinyan (a symbolic act of undertaking an obligation) such as kinyan sudar (transferring a handkerchief from one party to the other) or memorializing the agreement into writing in the form of a contract, which would be recognized as a kinyan situmta (a commercial vehicle such as a contract for undertaking obligations), may trump the argument of hashatah? Given that we are concerned with gemirat da’at of the parties, then if a kinyan or contract is executed, clearly the fugitive’s intent was to pay the mutually agreed-upon amount. Others disagree and argue that the overarching fact is that we are dealing with a distress situation and, given the circumstances, he implemented a kinyan. Under these conditions, his readiness to finalize the transaction with a kinyan should be understood as the mindset of a distressed person who desires to honor his undertaking in order to extricate himself from his distressed state. However, since the commitment was made under duress, halakhah does not recognize it as a free-will commitment even in the wake of the execution of a kinyan or contract. Hence, the jesting rule is applicable. Others contend that the aforementioned debate centers around a matter of reshut (a voluntary act). However, if we are dealing with a mitzvah, such as in the incident of the prisoner, then there is a consensus that since the boatman is engaging in a mitzvah and we are dealing with a situation of ones (duress), he can only charge the market fee. Consequently, even if a classical kinyan or contract would be executed, the jesting rule would be applicable.",
+ "Now let us apply these principles to the case at hand, namely an exploitative divorce agreement. Assuming there are grounds for divorce, we are dealing with a mitzvah to divorce one’s spouse. As such, the principles which underlie an exploitative divorce agreement deal with a husband who is performing a mitzvah and therefore our scenario should be no different than the ferryman who is involved in a mitzvah of rescuing of a Jew who negotiates a fee for his services.",
+ "Should a couple agree to accept a beit din’s jurisdiction regarding the propriety of an exploitative divorce agreement, the threshold question is a factual one. What is the conventional practice in their community regarding how much a wife may be asked from her husband for executing a divorce agreement? Does the community limit his fee to sekhar tirha (lit. compensation for the burden) or may his fee exceed this amount?",
+ "Historically speaking, there were some communities in the sixteenth and seventeenth centuries where the customary fee was exorbitant. If we assume that that we are dealing with a scenario where the husband is obligated to give a get and refuses to release a get unless he receives the customary fee which is an exorbitant amount that well exceeds what is usually paid in terms of sekhar tirha—is the agreement valid should his wife accede to it? Does the hashatah rule apply here? Given that we are focusing upon a situation where the husband is duty-bound to divorce his wife, there exists no loss in a husband divorcing his wife and therefore depending upon the terms of negotiation, the hashatah rule may be raised. Notwithstanding some opinions that focus upon the fact that we are dealing with a mitzvah and therefore the husband is entitled only to his sekhar tirha, most Poskim center their attention upon the importance of gemirat da’at and therefore claim that if these fees reflect the customary fee, albeit exorbitant, the jesting rule is inapplicable. In other words, even absent the execution of a classical kinyan or a written divorce agreement, orally accepting an exploitative divorce agreement would mandate payment of an exorbitant fee. Since there existed a custom in certain communities to pay such an amount, we impute that wife’s intent was to pay his fee. Based upon the foregoing, a husband’s offer to give a get (which entails the performance of a mitzvah) in exchange for $300,000 is unconscionable. Nonetheless, in terms of hilkhot hiyyuvim, the halakhot dealing with obligations would recognize such an arrangement as valid.",
+ "We must now ask ourselves: Today, in New York City, is it customary for a husband to financially extort his wife in exchange for giving the get? If a beit din concludes that the prevailing fee structure is one of remuneration for toil and effort, then charging an outlandish fee would mean that the jesting rule is applicable. And even if this arrangement of charging excessive fees would be practiced amongst the minority in our community, the hashatah rule would be invoked. On the other hand, should the minhag today be to give a get contingent upon receiving an exorbitant fee, then the jesting rule may not be invoked and the wife would have to remit the outlandish fee. Though intuitively one would expect that such behavior is relegated to a minority of husbands who are irresponsible and have no pangs of conscience, absent sociological studies that would corroborate our feeling, it is possible that a beit din may recognize from the perspective of hilkhot hiyyuvim an exploitative divorce agreement as reflecting the minhag in our community. As such, the charging of an excessive fee may be valid.",
+ "Given that this possibility exists that an exploitative agreement may be recognized, as remote and as reprehensible as it might seem, can a wife find another halakhic avenue for beit din relief if she consented to an exploitative divorce agreement? Dealing with a price discrepancy between the market price (in our case sekhar tirha) and the charged price of more than one-sixth of the market price entails a form of theft, which in rabbinic nomenclature is labeled a claim of ona’ah (lit. overreaching, price fraud). Under such circumstances, the agreement can generally be voided.",
+ "Assuming experts determine that the disparity between the market price and agreed-upon price of the divorce agreement is more than one-sixth, are there grounds to void the agreement and thus allow a wife to recoup her monies? Why didn’t the Talmud raise the claim of ona’ah as a defense for the distressed party rather than the plea of “hashatah”? We are dealing with payment for providing a service (sekhar pe’ulah) akin to the ferryman who provided the fugitive with a service, conveying him across a river. Depending on how you construe the ferryman’s service as the work of a po’eil (an employee) or as a kablan (an independent contractor) will impact whether an ona’ah claim may be advanced. Regardless how one identifies this service, there is controversy whether the service of a po’eil or a kablan is subject to hilkhot ona’ah. In other words, whether there is a claim for ona’ah concerning a sekhar pe’ulah is subject to that debate, which explains why the ona’ah claim wasn’t advanced in the Talmud. Consequently, if a husband’s entitlement to money in exchange for a get is construed as an example of sekhar pe’ulah, whether hilkhot ona’ah would apply is subject to debate. Secondly, in our scenario, it is clear that the wife knew that the fee was exorbitant and nonetheless agreed to remit the fee. The question arises that once one knows that one is being oppressed and accepts the price differential, can one subsequently advance the claim of ona’ah (price fraud)? This issue is equally subject to controversy. In other words, his acceptance of the offer was not due to his acquiescence to the fee (there was no mehilah) but rather because he intended to advance a claim for ona’ah in beit din. He realized that he was unable to broker a fair deal with the seller and decided to subsequently pursue the matter in beit din. Similarly, in our case, the wife was well aware that she would have to agree to pay the exorbitant fee in order to receive her get and expected to pursue the matter of the exploitative agreement in beit din. Finally, it is an open question whether hilkhot ona’ah regarding price differentials in sales transactions apply today. As such, it is question whether an ona’ah claim has bearing today concerning instances of providing a service such as receiving a get for an exorbitant fee.",
+ "Assuming that hilkhot ona’ah are applicable and one may void the agreement under the circumstances, void the agreement, the wife is well aware that the fee is exorbitant and therefore her willingness to agree to the divorce agreement due to the distress of being still married to her husband demonstrates that she waived her right to void the agreement, i.e. mehilah. Consequently, that is why the Talmud in the fugitive case raises the hashatah rule as a basis for exempting the fugitive from remitting this unconventional fee. Similarly, in our scenario, the jesting rule is invoked and consequently the wife has grounds to advance a claim to void the agreement. Contending that common sense dictates that if one undertakes an obligation to remit monies in a distress situation, monies that both sides knowingly realize are outlandish, how can one claim that there is a violation of the prohibition against ona’ah?!",
+ "In the event that remitting an excessive fee in exchange for giving a get would fail to run afoul of the jesting rule and hilkhot ona’ah, there is at least one outstanding avenue that may serve as grounds for a beit din to nullify a distress-exploitative divorce agreement. The Talmud teaches us,",
+ "Rabbi Hisda said to Rami bar Hama: Yesterday, you were not with us in the Beit Midrash where we discussed some especially interesting issues . . . The discussion was whether one who occupied his fellow’s premises unbeknownst to him, does he have to pay rent or not? . . .",
+ "What was the situation? One cannot assume that the premises were not for rent and the occupier was similarly a man who was unaccustomed to rent, for what liability could there be in a case where the defendant derived no benefit and the plaintiff didn’t suffer any loss? If, on the other hand, the premises were available for rent and he was a man who customarily rented premise, why should no liability be incurred since the defendant derived a benefit and the plaintiff suffered a loss?",
+ "However, the problem emerges in a case where the premises were not for rent, but he [the occupier] wanted to rent [a place to live] . . . Is the occupier permitted to argue against the owner: What loss have I caused you since your premises were not for rent?” Or might the other party respond: “Since you have benefited, since you would have had to rent other premises, you must pay rent . . .",
+ "It was stated: Rabbi Kahana citing Rabbi Yohanan said: In the case of the aforementioned issue there would be no halahkic duty to pay rent; but Rabbi Avahu quoting Rabbi Yohanan said: There would be a halakhic obligation to pay rent . . . Rabbah bar Rabbi Huna . . . responded as follows: “Thus said my father . . . in the name of Rav: He is not legally bound to pay him rent . . . Rabbi Sehora said that Rabbi Huna quoting Rav had said: He who occupies his neighbor’s premises without having any agreement with him is under no halakhic duty to pay him rent . . .",
+ "As we have read, whether in the scenario of “this one derived a benefit, but the other sustained no loss” the occupier is duty-bound to remit rent is subject to Talmudic debate. Subsequently, Rambam and Rabbi Yosef Karo rule that should the premises be utilized without the owner’s consent, the occupier is exempt from paying rent. Since the owner suffers no loss from the use of his premises, we cannot view the occupier as either a gazlan (a thief) or a mazik (a wrongdoer who damages somebody’s property), but rather as an individual who derives hana’ah (benefit) from the property without the owner’s permission. As such, the occupier is exempt from payment.",
+ "Seemingly, invoking the rule of “zeh neheneh ve-zeh lo haser” (“this one benefits, and this one sustains no loss”) inexorably leads to the conclusion that the fugitive is exempt from paying the excessive price for the ferrying across the river. However, one of the exceptions to the rule of “zeh neheneh ve-zeh lo haser” is if the occupier expresses a readiness to pay the rent. Then, despite the fact that the owner failed to suffer a loss by the occupancy of his premises, he remains obligated to remit the rent. Consequently, given the fact that the prisoner agreed to pay the outlandish fee, in accordance with this well-trodden mesorah, a beit din would be unable to invoke the doctrine “zeh neheneh ve-zeh lo haser” and he would be duty-bound to pay the excessive fee.",
+ "However, even if the fugitive expresses a readiness to pay and remits these monies, there is the Talmudic rule of “kofin al midat Sedom” (we compel one who acts in the manner of the townspeople of Sedom) not to do so. Given that the zeh neheneh rule is to be understood within the context of midat Sedom, that means that the owner’s conduct reflects the negative trait of Sedom, namely “mine is mine”. In other words, halakhah looks askance at one person refusing to confer benefit upon another individual even when the owner would not incur a loss. Hence, in the absence of sustaining a loss, the owner of the premises should not charge any rental fee. Similarly, despite the fact that the fugitive paid the exorbitant fee, halakhic-ethical considerations demand that the ferryman ought to refrain from exploiting a distress situation and therefore the monies ought to be returned to him. Failure to act in such a fashion reflects a personality trait of the townspeople of Sedom. In accordance with this approach, even if an exploitative divorce agreement has been executed, a divorcee has right to recover the exorbitant fee charged in exchange for receiving her get. In the interaction with individuals, surely in the performance of the mitzvah of divorce, a husband ought to refrain from using the get as a bargaining chip and engaging in extortion, which imitates the conduct of Sedom.",
+ "In conclusion, in the wake of an exploitative divorce agreement that has yet to be executed, a divorcee has the option to execute a mesirat moda’ah and thus allow her to recoup her payment. In the event that this procedure was not implemented or for some reason the mesirat moda’ah was ineffective and the agreement was finalized, a divorcee’s relief may be found either by advancing a plea that she never firmly resolved (gemirat da’at) to pay the nonconventional fee, a claim for ona’ah, and/or a declaration that her spouse is acting in a Sedomite fashion.",
+ "Deciding between the competing arguments regarding the readiness to recognize the merits of one of the three claims is the province of the Posek or dayan. The relative strength of each argument applicable in each situation, its effectiveness, and plausibility will hopefully be tested within the framework and constraints of future decisions of our Poskim and dayyanim.",
+ "Since the phenomenon of “get extortion” has become “a fact of life” in all segments of our community, it behooves rabbis and laypeople to become aware of the halakhic arsenal that exists to address this problem. If, at the end of the day, a wife and/or her family/friends are ready to succumb to this extortion in order for the woman “to move along with her life”, then there should be an awareness of the institution of mesirat moda’ah, which may be implemented prior to signing off on a divorce agreement. Additionally, a divorce agreement which embraces “a payoff” for receiving a get ought to provide that any disputes and differences be resolved in a mutually agreed-upon beit din. Therefore, if the agreement is finalized then the wife has the option to advance one or all of the three claims outlined here in our presentation in a beit din. Alternatively, even in the absence of such a mutually agreed-upon provision in the agreement, if the couple had earlier executed a shtar borerut (an arbitration agreement) which clearly empowers a beit din to resolve “all end of marriage issues including but not limited to the division of marital assets and parenting arrangements”, then advancing claims against an exploitative divorce agreement is within the purview of beit din adjudication. In the event that the husband refuses to have differences resolved in a beit din, the wife ought to seek a heter arkaot (permission to litigate in secular court) in order to address the legal propriety of a distress exploitation contract. Counsel regarding this matter should be sought from a rabbinic authority that has expertise in Hoshen Mishpat and Even ha-Ezer, preferably with experience in dayyanut."
+ ],
+ "Chapter 4; Division of marital assets upon divorce; From Metz Rabbinical Court of the Eighteenth Century to the Israeli Rabbinical Courts in Contemporary Times": [
+ "The purpose of this chapter is to show whether Israeli battei din in contemporary times address the matter of division of matrimonial assets upon divorce any differently than how the Metz beit din of eighteenth century treated this issue. We have chosen to present such a comparison because until one arrives at the twentieth century there are very few extant records of the decisions of rabbinical courts, whether in Europe, Israel or the United States. Now with the existence of records of decisions handed down by an eighteenth century beit din, as well as published reasoned judgments rendered by the Israeli rabbinical courts—which are a network of battei din under the aegis of Israel’s Chief Rabbinate—we can explore this matter.",
+ "I. The Pinkas of the Metz Rabbinical Court, 1771–1789",
+ "Our study of this eighteenth-century beit din has benefited from research conducted by Prof. Jay Berkovitz of the University of Massachusetts. Recently, he has published the Pinkas of the Metz Rabbinical Court, 1771–1789, accompanied by a critical commentary and notes regarding the matters addressed by this eighteenth-century rabbinic court. It is his unstinting efforts in a decade of examination of this historical record that has provided us with the opportunity to understand and distill how this rabbinic court dealt with this issue of dividing assets upon divorce, a topic that today is hotly debated in the Israeli world of rabbis and dayanim.",
+ "Describing the three-fold classification of a wife’s property, Prof. Ben Tzion Schereschewsky, the late Israeli Supreme Court Justice, expounds,",
+ "Dowry or “nedunya” means all property of whatever kind brought by the wife to the husband upon their marriage . . . those assets of the wife which she of her own free will entrusts to her husband’s responsibility . . .”Nikhsei tzon barzel” (lit.” the property of iron sheep”) is a term derived from a name of a transaction in which one party entrusts property on certain terms, the latter undertaking responsibility . . . for the return of the capital value of the property at the time of his receipt thereof . . . Upon dissolution of the marriage, this obligation of the husband is governed by the rule that any appreciation or depreciation in the property is his . . . Melog property is property of which the principal remains in the wife’s ownership but the fruits thereof are taken by the husband, so that he has no responsibility . . . in respect of the principal, both its loss and gain being only hers, and upon dissolution of the marriage such property returns to the wife. . . . This category embraces all the property of the wife falling under outside the category of nikhsei tzon barzel (except for a third category described below –AYW) whether brought by her at the time of entering the marriage or acquired thereafter, e.g. by way of inheritance . . . A third category is property of the wife concerning which the husband has no rights at all, neither to the principal nor the fruits thereof. This includes property acquired by her after the marriage by way of gift, the donor having expressly stipulated that it be used for a specific purpose . . . or that it be used for any purpose of her choice without her husband having any authority . . . or property given to her by her husband.",
+ "As Prof. Schereschewsky elucidates, the property halakhically identified as “nikhsei melog” is comprised of property that the wife owns the principal and the fruits or income accrue to the husband. For example, a wife brings into the marriage an apartment building. She remains the owner, but any income gained through rentals belongs to the husband and any losses due to the building’s deterioration are her losses. Should the couple divorce, upon the severing of ties, this melog property—regardless of its condition—reverts back as is to the now-divorced wife. Upon review of the pinkas (the records), one encounters the historical fact that this beit din addressed the issue of dividing up marital assets upon divorce by invoking the institution known as “nikhsei melog”, which identifies in part the property held by the wife during her marriage.",
+ "And in fact, in the records of Metz we encounter a beit din following in the footsteps of the ruling of Shulhan Arukh, directing a divorcing husband to return these melog assets to his wife.",
+ "On the other hand, let’s say a divorcing wife was living in Metz her entire married life and all of the family’s property is located in Metz was titled to her husband; or let’s say the wife holds property in her name that she amassed after the marriage. Would she receive a share in these properties? Given that the Metz beit din divided up property based upon the Talmudic division of matrimonial property system of nikhsei melog, nikhsei tzon barzel, and gifts, the answer is no. In fact, such a conclusion would not only be Talmudically grounded but equally would reflect the legal-social reality of Metz. As Prof. Berkovitz notes in his critical commentary to the Pinkas, all of the communities in northeast France—except for Metz—accepted the community property system. Adopting this community property approach towards dividing up marital assets upon divorce would mean that even if assets are acquired during marriage by one spouse, the other spouse receives a fifty percent share in the assets. However, rejecting the notion that property should be equally divided between the spouses, in Metz the concept of a separate property system was endorsed. Consequently, whether the Torah-observant wife appeared in the Metz beit din or whether she would have appeared in a Metz civil court because the husband refused to proceed to the Metz beit din, the result would be identical. Regardless of in which forum she would claim an equal share in the family’s properties, the result would be that she would not be entitled to half the value of the properties.",
+ "The fact that the Metz beit din divided marital assets upon divorce based upon the tripartite division of nikhsei melog, nikhsei tzon barzel, and gifts exclusively given to the wife is underscored by the fact that in order to afford a wife to retain her own property during the marriage and recover it upon divorce, the tenaim (premarital conditions) signed by the couple’s parents addresses the division of marital property. It is clear that since the Metz beit din recognized and implemented the Talmudic matrimonial property system, it was therefore in the interests of a woman to have a prenuptial agreement finalized that would allow her to benefit from a different financial-economic arrangement. Dispositive arrangements concerning property relations are permitted based upon the operative rule “an individual may stipulate contrary what is written in the Torah”.",
+ "II. The Israeli Rabbinical Courts and its Interaction with Minhag ha-Medinah",
+ "A. Ownership of the Marital Home upon Divorce",
+ "One of the first issues that was addressed by the Israeli rabbinical courts at the time of their establishment in the 1950s was how to determine which spouse owns the matrimonial home. Adopting Turkish law, Israeli law mandates that all real estate that had been bought must be registered with the Land Registry Office. Upon registering the property, the buyer receives legal title to the real estate.",
+ "Given that upon divorce marital assets were to be divided between the spouses, the question arose whether a title of ownership of the marital home by one spouse effectively preempted the possibility that the other divorcing spouse would be entitled to receive monies from the sale of the property.",
+ "The threshold question which arises is whether an Israeli Jewish citizen can halakhically purchase real estate without registration; or does Halakhah mandate that, absent compliance with the legal requirement of registration, the buyer fails to become the owner? As we know, land is acquired by different types of kinyanim (undertakings that demonstrate transfer of an asset), namely the transfer of money, the executing of a shtar (document), hazakah (possession), or a sudar (lit. the handing of a handkerchief or another article from one party to the other). Consequently, in contemporary times, Hazon Ish, R. Shlomo Zalman Urbach, and R. Levi Wosner conclude that any land transfer effected by a prescribed kinyan is halakhically valid without registration. A few Israeli rabbinical courts endorse this view.",
+ "Nonetheless, a review of many rabbinical court decisions handed down within the beit din network of the Israeli Chief Rabbinate, as well as by contemporary Poskim, show that in order to halakhically finalize a land transfer one requires the property to be recorded in the land registry. Precedent for such a position had already been marshaled by many authorities of earlier centuries. Some Poskim recognized real estate agreements executed in accordance with the governing civil law and others validated ownership based upon registration. Their rulings were either based upon invoking dina demalkhuta dina, minhag, kinyan situmta (commercially recognized form of transfer), and/or the fact that the intent of the buyer (semikhut da’at) is to be in compliance with the prevailing law.",
+ "With this background we can now proceed to address how contemporary Israeli battei din deals with the issue of dividing up the marital home upon divorce. Will the spouse(s) who is registered on the property in the Land Registry be viewed halakhically as the bona fide owner(s) or the spouse (or a third party related to the spouse) who invested the money in the purchase be considered the owner of the home? Notwithstanding the many battei din today who invoke the civil legislation of Monetary Relations between Spouses and divide up the marital home equally, a review of many of decisions handed down within the network of the Israeli Chief Rabbinate between the years of 1957–2013 shows that—regardless of the spousal investment—if the purchase is registered under the names of both spouses, then upon divorce the property is divided up equally and if it is registered under the name of one spouse, ownership resides with the registered spouse. Implicitly relying upon Hatam Sofer and Maharsham, Dayan Eliezer Goldschmidt explains,",
+ "Regarding the question of the intent of the registration, we can establish that this is the custom and the practice throughout the world in every period. It is known that now there is a custom to register real estate, in particular residential property, under the name of the two spouses and ownership of the property will be theirs. The registration shows that he is the one who paid or he paid more and gave the balance of his share [in the real estate] to the second one as a gift.",
+ "Other dayanim subscribe to the aforementioned view of R. Goldschmidt and argue that a husband who purchases the property and then registers the property in his and his wife’s name in effect is intending that his wife’s share is a gift. Or if the wife or the wife’s parents purchase the apartment and the property is registered under the name of both spouses, clearly a gift is being made with the husband or the son-in-law respectively.",
+ "The question then arises is whether the gift can be revoked or not. Seemingly, R. Elyashiv raises the possibility that when property is registered in the name of two individuals, from the seller’s perspective it is clear that he is selling the asset to two individuals and therefore it is difficult for the purchasing spouse to claim that the noncontributing spouse’s share is to be viewed as a gift and therefore revocable. Nonetheless, some battei din contend that the gift is revocable upon divorce should the grounds for divorce stem from a wife’s improper behavior. And as such, at the time of divorce, she would have to pay her husband for her share in the marital home. On the other hand, implicitly relying upon the opinions of Beit Yitzhak and the Lomzer Rebbe, other rabbinical panels contend that when the husband gifted a share of the marital home to his wife, the gifting was unconditional. Therefore, even if the wife is responsible for severing the marital ties, she retains her share in the home.",
+ "Absent valid grounds for divorcing a wife, in situations where an apartment was purchased by the husband and registered in his wife’s name, some dayanim such as R. Elyashiv invoke the well-known view of Rashba as well as others such as Ramban and Sefer ha-Terumot who claim that the registration was executed in order to fraudulently convey the property to a third party to avoid creditors rather than a proof that she actually is the property owner. As such, the husband would be viewed as the owner of the home.",
+ "Given that the circumstances may vary from situation to situation whether the registration indicates the giving of a gift to a noncontributing spouse, one must examine each case individually and, absent any evidence to the contrary, there is a presumption that the registered name is the muhzak (the possessor) and therefore the owner. In short, registration gives legal validity to a real estate sale. However, though registration is halakhically recognized as a form of transfer, nonetheless whether the halakhot of gifting might impact at the time of divorce upon the ownership rights of a non-contributing spouse is subject to debate.",
+ "Nonetheless, there are battei din that validate the registration and fail to address concerns emerging from hilkhot matanah (gift). Lest one extrapolate from their silence that ownership of a marital home by a couple via a registration of couple’s title of the apartment conveys the notion that Halakhah is recognizing that matrimony is based upon a partnership between spouses which in part is grounded upon joint ownership of the marital home, a 1978 judgment authored by R. Shlomo Daichovsky argues otherwise. In a divorce case, the apartment was registered in the name of the married couple and the question arose as to who owns the home. Though the husband readily admits that his wife’s parents gave the majority of the monies for the purchase of the property, he is nonetheless claiming fifty percent ownership in the home. And the wife argues that he should not receive any share of the home.",
+ "Halakhah recognizes various different methods of establishing a partnership. One is known as “kis” (lit. a bag) or, in modern Hebrew parlance “kupah meshutefet” (the common purse). A prospective partner would place his share of money into the bag and mix it up with the contributions of others. The bag, with all its contents, was acquired by each of the potential partners and so each individual was given a right to the entire investment and the accrued profits.The question arises whether the monies each spouse contributed towards the purchase of the apartment created a common purse. In the absence of the establishment of a kis, are there additional methods of forming a partnership?",
+ "For Rambam, when individuals want to form a partnership, each individual will place his monies in the bag and both would lift the bag. On the other hand, Ba’al ha-Turim argues that even if each individual pull the monies of the other towards himself or if they commenced in engaging in the commercial partnership, such actions would suffice to establish a partnership arrangement. However, Sma disagrees and requires at least the intermingling of the monies in a bag prior to engaging in partnership activity in order to validate that in actuality a partnership arrangement exists. However, Taz agrees with Tur that engaging in the business partnership give validity to a partnership.",
+ "In accordance with the beit din judgment, in the absence of a common purpose and pulling monies, the spouses failed to create a partnership. On the contrary, each spouse appeared with “their own bag” rather than placing their money in a common purse!",
+ "The outstanding question is whether the willingness of the couple to purchase a marital home serves as the commencement of a partnership relationship. Moreover, Rambam’s formulation that “the partners want to become partners” or Tur’s wording that “the partners are coming to be partners” assumes that the individuals have already mutually agreed to be partners and are seeking to ascertain how such a relationship is formed. In the matrimonial context, prior to the apartment purchase, there is no indication that the couple seeks to enter into a partnership arrangement. And it is very possible, argues beit din, that the wife who contributes the majority of the monies towards acquiring the property would not agree to creating a common purse. Consequently, R. Daichovsky concludes that, given the absence of preliminary actions prior to the purchase attesting to the desire to form a partnership, even in pursuance to Taz’s view, one would not recognize the creation of such a relationship. In short, in the wake of the lack of evidence that the parties consciously desire to develop a partnership relationship, the beit din was unwilling to recognize such ties. Similarly, one should not infer from the silence of other battei din regarding the grounds for validating registration that these panels are invoking the conception that matrimony is a partnership relationship.",
+ "Yet there is at least one panel that recently argues that a couple that purchased an apartment together and registered it with each spouse receiving an equal share clearly intended to establish a partnership and divide up the asset equally even if the contribution of each spouse was unequal.",
+ "Other panels have invokes notions of marital partnership but are quick to note that this partnership relationship is to be distinguished from a commercial partnership. A business partnership is created to accumulate monetary profit. In the event of intractable partnership disagreement that causes financial losses, there is an expectation that the partners will dissolve the ties. On the other hand, though there may be differences between the spouses regarding their marital property, the actual disputes do not necessarily mean that divorce is imminent. Marriage has its ups and downs and, at the end of the day, there may be other reasons that the relationship will sustain itself despite certain differences regarding their financial assets. As R. Daichovsky points out, the moment of marital partnership dissolution will be tied to whether there exists prospects for shalom bayit (marital reconciliation), which may or may not be linked to the couple’s financial differences.",
+ "That being said, one must understand the halakhic basis for viewing marriage as a partnership? As Rambam rules,",
+ "When a man marries a woman . . . whether of majority age or a minor, whether a Jewess or a convert . . . he is obligated to her in ten matters and is entitled to receive four matters . . . and they are support, clothing . . . living with her . . . And the four that he is privileged to receive . . . her handiwork, her finds, consuming the fruits of nikhsei melog during her lifetime, and if she dies while he is alive, he is the first in line to inherit . . .",
+ "This network of monetary obligations is predicated upon the fact that the husband is the breadwinner and therefore, in exchange for his efforts, he is entitled to her handiwork and the income accrued from her assets. This arrangement stands in bold contrast to the matrimonial property system based upon hezkat ha-shituf (lit. the presumption of partnership), which emerged from a series of Israeli Supreme Court decisions handed down in the 1960s and later ratified by the Knesset in 1973 in the form of legislation. Translating hezkat ha-shituf into legal terms, Israel adopts the community property system, which means that all assets—including property, real estate, and others—and rights that have accrued due to a spouse’s work during marriage are divided up equally between the couple upon divorce. In bold contrast to Israeli law, barring particular assets that are under her name and/or are jointly owned by the couple, it is clear that in accordance with Halakhah, all assets remain with the husband.",
+ "However, in 1992, Israel’s High Court of Justice directs the battei din to resolve these matters in accordance with governing Israeli law. In 1987, Mr. and Mrs. Bavli, who were two Israeli Jewish citizens, received a divorce judgment from a regional beit din. Additionally, despite the fact that according to Israel’s Spouses (Property Relations) Law of 1973 the wife should have been granted half of her husband’s assets, the beit din invokes the rule that the husband is entitled to retain his assets that are under his name rather than grant his wife a fifty percent share of those assets. Unhappy with the beit din’s ruling, Mrs. Bavli filed suit to the Supreme Court, sitting as the High Court of Justice, requesting that they direct the beit din to award her half of her husband’s assets based upon the governing civil law. (In Israel, the Supreme Court may sit on certain claims as the Supreme Court and on certain claims as High Court of Justice.) Upon review of the beit din decision, the High Court of Justice rules that the beit din must comply with the dictates of Israeli civil law and render such an award. From that time onwards, battei din under the Israeli chief rabbinate began handing down decisions in accordance with the governing civil law rather than the Talmudic matrimonial property of nikhsei melog and nikhsei tzon barzel and registration of the home. As a Tel Aviv beit din states,",
+ "The status and halakhic validity of the rabbinical court to judge the division of assets between a couple in pursuance of the Law of Couple’s Monetary Relations has been dealt with extensively. Two differing positions . . . have been stated concerning this matter. Does one view it as national custom or not? Even though the law (in accordance with Bavli) obligates the battei din to adjudicate the division of assets according to the law rather than halakhah, nonetheless it is clear that this decision does not empower a beit din to halakhically authorize itself to judge this matter when it believes that it is at variance with halakhah. Accordingly, today, the majority of battei din, if not all of them, demand from the parties explicit permission to resolve their matters dealing with assets according to the civil law . . . there are some battei din that do not only require verbal agreement but demand also the execution of a kinyan.",
+ "Given that Halakhah differs from Israeli law regarding how one divides up assets upon divorce, on what grounds would a beit din address such a matter by recognizing hezkat ha-shituf? Clearly, if this question would be examined through the lens of registration, one would consider whether both spouses were registered on the real estate. Whether registration indicates ownership or a means to fraudulently convey the property would be addressed by the beit din. If the property was purchased by the husband and the real estate was gifted to the wife and registered under her name, is the gift revocable if she engages in inappropriate conduct? The notion of hezkat ha-shituf does not arise. However, under Israeli law, such questions are not raised. Regardless whose name is registered on the real estate and the conditions that lead to a name being registered, upon divorce the property is divided up equally between the spouses due to the fact that marriage is viewed as a partnership.",
+ "One approach, as suggested by the Tel Aviv-Yaffo Regional Beit Din, is if the couple agrees to have their differences regarding the division of marital assets resolved in accordance to civil law, then the beit din will require the execution of a kinyan (a symbolic act of undertaking an agreement). A beit din’s willingness to resolve a matter in accordance with the dictates of civil law based upon the mutual agreement of parties is no different than parties who execute an agreement to have all differences resolved in pursuance to civil law. In other words, in the context of monetary matters, the operative rule is “an individual may stipulate contrary to what is written in the Torah.” Therefore, all types of agreements—including, but not limited to, construction contracts, lease, partnership, and employment agreements—may be drafted in accordance to any law or set of values even if they are in variance to halakhah. As such, parties who decide to have their contentious matters resolved in beit din in accordance with civil law are acting properly—no different than parties to an agreement that choose to have their disputes handled in pursuance to civil law. Consequently, a couple may opt to have a beit din deal with their financial issues in accordance with civil law. In at least three rulings, various dayanim observe that the majority of battei din argue that the governing law stands in variance with halakhah concerning the division of marital assets upon divorce, and therefore the only avenue to recognize the civil law is by the parties mutually agreeing to accept the norms of civil law.",
+ "However, following in Taz’s and Gra’s footsteps, Dayanim Elyashiv, Sherman, and others invalidate such an agreement due to the fact that it is a violation of litigating in secular court. Just as this prohibition teaches us that a Torah-observant Jew is proscribed from complying with the dictates of civil law and therefore cannot litigate in civil court, similarly a beit din is prohibited from rendering a judgment based upon secular law. Hence, a spousal agreement to have matters resolved in a beit din in accordance to secular law is invalid.",
+ "Alternatively, other dayanim contend that a beit din is empowered to address such issues because minhag ha-medinah (the national practice) is that divorcing spouses resolve such matters in accordance with Israeli law, namely the rules of community property system. Minhag ha-medinah includes all segments of the Torah-observant Jewish community, including the ultra-Orthodox community. As R. Daichovsky notes,",
+ "The practice is also in the haredei (ultra-orthodox) families—including the families of renowned Torah scholars—that the wife is on equal standing to her husband regarding family property. This expresses itself in property registration of the marital apartment, with the purchase and sale of property with mutual agreement and the inheritance of the communal property to the wife after the length of days (i.e. demise –AYW) of the husband. I have sat (dealt –AYW) with thousands of estate files, and some from the most haredi families, and never encountered even one case where the wife had to waive her right to her husband’s estate for the sake of the Torah heirs.",
+ "By invoking the effectiveness of minhag, there is an implicit assumption that the practice must be clear, it must be the custom throughout the country or a particular locale, and it must be practiced at least three times. Clearly, Israeli law concerning how to deal with the division of marital assets is clear, widespread, and has been applied more than three times. Implicit in our presentation is that minhag ha-medinah is reflective of the governing civil law.",
+ "Finally, according to many Poskim, the parties do not have to possess knowledge of the actual existence of the minhag. As such, even if the parties neither are aware of the minhag nor cognizant of the details of the civil law, the assumption is that the minhag applies. Consequently, the minhag—namely, governing Israeli law—will determine how property ought to be divided up for a Torah-observant couple. In other words, the intent of the parties is to enter into any monetary agreement on the basis of the minhag. The minhag now becomes an obligation of halakhic compliance rather than reflecting only a historical fact of a particular locale.",
+ "Some dayanim, such as Rabbis Izirer and Malka, contend that Torah-observant Jews desire to follow Halakhah. So if a minhag reflects Halakhah, there is an abiding willingness to comply with it. However, even if they are cognizant of the practice, some will reject it if it is in variance with Halakhah. Moreover, R. Shlomo Amar, former chief rabbi of Israel and Dayan Eliyahu Rosenthal claim that this minhag of dividing marital assets based upon the provisions of a community property system has failed to receive the imprimatur of a Torah scholar and therefore lacks validity.",
+ "Admittedly, there is a long-standing halakhic controversy whether a monetary custom practiced by the community is effective without rabbinic or communal endorsement. However, the classical restatements of Halakhah have either explicitly or implicitly ruled that a monetary custom has an independent status. In fact, various contemporary Poskim, such as R. Shalom Schwadron, R. Moshe Feinstein, R. Yitzhak Weiss and R. Nissim Karelitz, when addressing matters of monetary affairs, such as a sales transaction or a lease, assume that the parties intend to have their matters resolved in accordance with civil law. And in fact, as we mentioned, numerous contemporary dayanim validate a couple’s right to have their differences resolved in pursuance to minhag ha-medinah, namely Israeli law. ",
+ "In short, some battei din will impart recognition to the Israeli community property system based upon either minhag ha-medinah or by virtue of the fact that the a divorcing couple, when appearing in beit din, will execute a kinyan affirming that their matters be resolved in pursuance to civil law.",
+ "B. Collecting the Value of the Ketubah Upon Divorce",
+ "Assuming one adopts the position that Halakhah recognizes the civil law dealing with the division of marital assets upon divorce, the question emerges whether a wife may collect the value of her ketubah upon divorce. Clearly, this is a debt that the husband owes to his wife. Legally, in pursuance to Section 17 of the Law of Monetary Relations between Spouses, a beit din may award the value of the ketubah to the divorcing wife. In other words, in addition to a wife’s entitlement to fifty percent of various monetary assets that may be in her husband’s name, she has a right to the value of her ketubah. Depending upon the income and property of each party during the marriage, there is a distinct possibility that in accordance with the governing law, a wife may be receiving assets that substantially exceed the value of her ketubah, which today approximates $30,000 to $40,000. Given that the rationale for legislating that a husband must give his divorcing wife the value of the ikar ketubah of 100 zuzim is for deterrence, in order that “it will not be easy for him to divorce her”, there would seemingly be no grounds to collect its value. This ikar ketubah has now been replaced by the potential windfall of real estate and/or monies that may accrue to the divorcing wife based upon civil law. In fact, for this reason, in a decision handed down by the Tzfat Regional Beit Din, Dayan Uriel Lavi rejects in his words “double rights”, entitlement to the ketubah and monetary rights under Israeli law. At the time of marriage, the husband never contemplated that he would give his wife a right to half of his assets—the expectation based on Israel’s community property system guidelines—as well as obligate himself to the value of the ketubah. In other words, there is an umdana, (i.e. an assessed expectation) of the husband and therefore the obligation to pay the ketubah was on the condition that in the wake of a divorce he would not be required to give additional monies from his assets to his wife. Consequently, Dayan Lavi denies her right to the value of her ketubah.",
+ "Subsequently, the wife appealed the Tzfat Regional Beit Din’s decision to the Beit Din ha-Rabbani ha-Gadol in Yerushalayim and the panel rules,",
+ "In terms of Halakhah and the law there is a need to distinguish between the ketubah which is a debt . . . which is not dependent upon the intent of the obligor (the prospective husband –AYW) and the obligation of tosefet ketubah, for which one has to factor into consideration the obligor’s intent during the time of drafting the ketubah. As such, he could say that he intended that she would collect upon her divorce whatever she is entitled to receive according to the law monetary relations and therefore he does not need to give her tosefet and never intended to give her tosefet.",
+ "The standard amount of money in the Ashkenazic ketubah is 200 zuz. Usually, one hundred zuzim are earmarked for the actual debt, known as the ikar ketubah, and another 100 zuzim are earmarked for the tosefet ketubah. Whereas ikar ketubah is a debt that is created at the inception of marriage and paid off at the time of divorce, tosefet ketubah is dependent upon the husband’s intent prior to marriage—during the time of writing the ketubah. In the aforementioned Tel Aviv-Jaffa Regional Beit Din psak din, without focusing upon the distinction between ikar ketubah and tosefet ketubah, the panel argues that in order to invoke the umdana that the prospective Torah-observant husband in the event of divorce expected to pay only what his wife is entitled to according to civil law, the umdana must be gedolah (significant) to the level of absolute certainty in “his heart and the heart of every individual” in order to be exempt from paying the value of the ketubah. Since such an umdana did not exist, consequently, the wife remained entitled to receive the value of her ketubah.",
+ "However, a string of Israeli rabbinical court decisions disagree with the aforementioned psak of the Beit Din ha-Rabbani ha-Gadol and contend that a divorcing wife who accrues significant sums of money and/or real estate by virtue of a beit din’s factoring into consideration, the governing Israeli law will deny her right to the value of the ketubah. As Dayan S. Daichovsky observes,",
+ "The ketubah was not designed in order to enrich the divorcing wife . . . the purpose of the ketubah is to facilitate the wife to maintain herself with dignity for a period of a minimum of one year, until she finds another husband . . . one should take into account that today there is an additional reason to limit the ketubot (collecting its value –AYW). Everyone knows that the assets of the parties are divided equally according the law of monetary relations between spouses . . . the division of assets includes future rights, such as social benefits and retirement benefits and professional goodwill that the husband acquired during the marriage. It is difficult to assume that a groom with any common sense will agree “to be hit twice or three times”—to have his assets divided up in accordance with civil law . . . and to pay the ketubah . . .",
+ "Implicit in Dayan Daichovsky’s understanding of the nature of the ketubah is that it is an obligation undertaken by one side, namely the hatan (the groom). The kallah (the bride) is outside the picture and, absent any negotiations between the prospective spouses regarding whether its value will exceed two hundred zuzim, the kallah is presented with a fait accompli and is informed regarding its value under the huppah (wedding canopy). As R. Eliezer Fleckles, a nineteenth-century Austrian Posek, notes,",
+ "And the ketubah . . . does not entail buying and selling, which requires the intent of the purchaser and the seller. A ketubah (marital agreement –AYW) is more comparable to someone who earmarks his assets in writing to his son or his wife . . . because these are a gift on the part of the donor and are not dependent upon the intent of the receiver (the beneficiary –AYW).",
+ "In short, the ketubah is representative of a gift rather than an item sold to the wife.",
+ "As we explained, the common denominator of both of these schools of thought as to whether a husband remains obligated to pay the value of the ketubah in situations where his wife has accrued significant assets in light of governing a Israeli law hinges upon how we assess the husband’s umdana at the time of their wedding. Is there an umdana that a Torah-observant Jew will undertake to remit both payments upon divorce or do we assume that a wife’s entitlement to fifty percent of his assets presumes that payment of the value of ketubah would not be forthcoming? Obviously, adopting one approach or another leaves much leeway for a dayan’s shikul ha-da’at in resolving this issue.",
+ "Invoking a halakhic directive rather than sevara (halakhic logic), we may resolve this issue by focusing upon a Talmudic sugya that deals with the words of a shekhiv mei-ra (a bequest spoken by a person on his deathbed). The testator who is critically ill must employ words that show that he is making a gift on his death. Sometimes his words are ambiguous and therefore it remains uncertain whether the intent was to give an inheritance or intending to give a gift beyond the normal share of the inheritance. For example, what happens if he states that he is giving X amount of money to his sons, who are Torah heirs, or to his wife, who will be paid her ketubah upon his demise? Do we construe the gift in addition to his inheritance to his sons or to the value of the ketubah? Or do we view it as a partial estate distribution to his sons or as a portion of the payment of the ketubah? This question is subject to debate and the Shulhan Arukh, as understood by various aharonim, as well as Rema concur that the donor’s intent is to pay off now a portion of the share of their inheritance and remit partial payment of the value of the ketubah. In effect, the implication of this position is that in cases of ambiguity regarding the intent of the donor, we assume that the sons are only obtaining the value of the inheritance and the wife is only receiving the value of her ketubah. Relying upon this position, Dayan Lavi concludes that in lieu of the fact that a divorcing wife is receiving significant assets based upon civil law, we construe that the husband’s intent was not to obligate himself to “double payments” and therefore his wife is not entitled to the value of the ketubah.",
+ "In sum, in accordance with many Israeli battei din one may adopt the minhag ha-medinah dividing up assets upon divorce equally. But whereas the view of others, as exemplified by the aforementioned Beit Din ha-Rabbani ha-Gadol psak din, argues that the emergence of this minhag does not impact a divorcing wife’s entitlement to the value of her ketubah, the majority of battei din contend otherwise. Whereas the minority opinion contends that the duty to pay the value of the ketubah remains intact regardless of the amount of assets that accrue to a divorcing wife, one who invokes hilkhot shekhiv mei-ra would discern that an individual’s intent is to refrain from making “double payments” and that this Halakhah of yerushah may serve as grounds that the husband is exempt from paying the value of the ketubah to his divorcing wife—who is receiving assets based upon minhag ha-medinah. Both opinions accept the minhag, yet each one assesses differently how Halakhah ought to deal with the husband’s obligation, memorialized at the inception of marriage, to pay the value of the ketubah upon divorce.",
+ "C. Collecting the Value of Professional and Personal Goodwill Upon Divorce",
+ "With the emerging recognition of minhag ha-medinah by some Israeli battei din as the yardstick for assessing how to divide up marital assets upon divorce, we encountered that battei din began to address the propriety of paying a wife the value of her ketubah in light of the wife’s accumulation of liquid assets and/or real estate upon divorce. The interaction of Halakhah and minhag is not limited to this issue but equally encompasses other claims advanced by a divorcing spouse. For example, one beit din held that a wife’s law degree and teacher’s license are deemed as marital assets and therefore the panel awarded the husband a certain percentage of the value of the degree and the license. In another situation, arguing that her husband’s professional goodwill—namely, his established business and his earning capacity—should be considered as marital assets, a panel concluded that she was entitled to a certain percentage of its value. Two months after this ruling, a different panel agreed that professional goodwill is marketable property and therefore a wife would be entitled to a certain percentage of its value. However, given the particular circumstances of the case, the panel refrained from rendering such an award. The common denominator of the three rulings is that the parties mutually agreed to resolve their financial differences in accordance to civil law and the panels chose to accept the legal approach that recognizes that a professional degree and professional goodwill are both marketable properties and are therefore subject to being a marital asset, which may be valued for a divorce award and result in a spouse receiving a share in the value of the opposing spouse’s degree or goodwill.",
+ "On the other hand, in light of differing Israeli legal opinions regarding some of these matters, some battei din have chosen to resolve the case based on halakhic guidelines rather than aligning themselves with a particular legal position. For example, a wife advanced a claim to receive a share of the enhanced earning capacity of her husband, who is an engineer who specializes in refrigeration—namely, professional goodwill. Additionally, she claimed that her husband had an excellent reputation in the field and therefore is entitled to a share of the value of his personal goodwill, which encompasses the reputation, skills, experience, ability, and persona of the professional spouse.",
+ "The question arises whether one can have a property right in professional or personal goodwill. Does a property right have to be something tangible? Can one sell or inherit goodwill? Is there a difference between professional goodwill and personal goodwill?",
+ "Addressing these questions, R. Ariel Yanai of the Netanya Regional Beit Din distinguishes between personal goodwill and professional goodwill. Dealing with professional goodwill raises the issue whether a property right requires tangibility. Halakhically, a property right can be acquired only in something which has substance, or a davar she-yesh bo mamash. Tangibility in this context is defined as something that has height, width, and depth.",
+ "Despite the lack of tangibility, already in sixteenth-century Poland, Maharshal recognizes the validity of a shtar hakirah, i.e. a leasing agreement known in Polish as an “arenda”, which was provided by the non-Jewish government to a Jew in order to sell certain wines for a period of three years. For Maharshal, the validity of such a leasing agreement, which serves as an example of davar she-yesh bo mamash, is based upon either dina demalkhuta dina (the law of the kingdom is the law) and/or kinyan situmta (a commercial practice of acquisition). In other words, despite the fact that the leasing agreement is bereft of halakhic tangibility, this arenda is recognized either due to the fact that the governing civil law confers validity and/or because the communal practice was to accept it. Maharshal opines that a leasing agreement, despite its lack of tangibility, will be halakhically recognized as an avenue of acquisition. Maharshal’s position does not stand as a singular opinion regarding the validity of acquiring matters of no tangibility. Numerous Poskim have either validated such matters based upon situmta or the governing law. Consequently, the beit din rules that professional goodwill is a property interest which can therefore be valued as an asset to be addressed in a divorce situation.",
+ "Though dina demalkhuta dina and minhag ha-medinah serve as avenues for validating professional goodwill as a property interest, personal goodwill is treated differently. As R. Yanai states briefly,",
+ ". . . It is clear that the partnership ceases at the moment that the get is delivered by the husband to the wife . . . even if we would want to recognize the couple as partners in regard to everything (obviously based on the law . . . or minhag ha-medinah, rather than by dint of Jewish law . . .) for the purpose of personal goodwill—i.e. the mutual lien of the couple regarding their respective incomes. Clearly, the partnership ceased with the giving of the get. The get dissolved the marital ties and therefore also dissolved the sharing (shibud) of the couple regarding their respective incomes.",
+ "In contradistinction to civil courts, who may be ready and willing to value personal goodwill that entails future entitlements—namely, earning potential relating to post-divorce years, Halakhah refuses to validate such entitlements given that the partnership of marriage ceases at the time of divorce.",
+ "Moreover, the Netanya Regional Beit Din opines that hilkhot hithayivut (undertaking obligations) serve as the grounds for denying entitlement to this expected income. In the frequently-cited ruling, Rambam rules,",
+ "A person cannot transfer ownership neither through a sale nor through a gift concerning an object unless it has substance. If it has no substance, ownership of it cannot be transferred.",
+ "How? A person cannot transfer ownership of the fragrance of an apple, the taste of honey, the color of crystal or the like. Therefore, when a person [desires to] transfer ownership of [the right] to consume the fruits of the date palm or dwelling in a house, he has not acquired it until he transfers the actual house to reside in it or the tree to partake of its fruits.",
+ "To state it differently, one cannot transfer sensory pleasure, such as visual enjoyment, to another individual. Consequently, dealing with the laws of sales, Rambam rules that the transferring of monetary privileges, such as the right to dwell in a place or to consume fruit, will be ineffective where the transfer of ownership is not executed with the actual object (i.e. the home or the tree), due to the fact that one is attempting to accomplish transference on a davar she-ein bo mamash, i.e. something lacking tangibility. As we mentioned, a kinyan (a symbolic act of transfer), such as an exchange of an object for money, requires an object—something that has substance. The right to dwell in a place or a right to partake of fruit is intangible.",
+ "Dealing with the halakhot of entitlement, Rambam rules,",
+ "If a person who is critically ill says “let this individual reside in the house,” or “let this person consume the fruits of this palm tree,” his words are ineffective since he did not transfer an object of substance. For living and eating are similar to speech and sleep, which cannot be acquired. However, if he said, ‘give this house to this individual in order for him to live there for a certain amount of time’ or ‘give the palm tree to this individual in order that he may partake of its fruits’, his words are effective because he transferred the entity itself with the fruits and the entity is tangible . . .",
+ "Seemingly, Rambam has simply reiterated the point that he states earlier in the laws of sales, namely the requirement of tangibility prior to transferring an object from one person to another. But, in fact, the fact patterns are readily distinguishable and therefore communicate two different conclusions. Whereas in the laws of sales, we are dealing with transference of the taste of honey and an apple as an illustration of a davar she-ein bo mamash which cannot be acquired, in the laws of entitlement we are addressing the ineffectiveness of the transference of words and sleep. Whereas in the laws of entitlement we focus upon a person that “will eat fruits” in the future, in the laws of sales we address the consumption of fruits. In other words, whereas the laws of sales addresses the prerequisite of tangibility prior to transferring an object and therefore transference of the benefit of eating is ineffective, the laws of entitlement teach us that one cannot transfer the performance of an action, such as offering to allow a person to eat fruits for a period of time, similar to hearing and sleep—which is nontransferable due to the absence of tangibility. As Rambam decides elsewhere,",
+ "Matters that lack substance, a kinyan is ineffective. How? If one writes in a document . . . that he will engage in business with another person or they will divide up a field between themselves or they will establish a trade partnership . . . this is a kinyan devarim (an undertaking of words) and is ineffective because he did not transfer to him a specified thing.",
+ "To create a partnership, an intangible action, such as an exchange of words, will not suffice. As Rambam reiterates in the halakhot of partnership,",
+ "When craftsmen join together in a trade partnership, even though they perform a kinyan with each other, they do not become partners. How? If two tailors or two weavers stipulate between themselves that whatever either of them earns will be divided between them equally, there is no partnership. For a person cannot transfer ownership of something which is not yet in existence.",
+ "However, if they took their own clothing, sewed it . . . and weaved it and became partners through their respective assets they are partners . . .",
+ "Here again, the performance of an action, such as creating a partnership, without an accompanying kinyan that imparts “substance” to the transaction is halakhically ineffective.",
+ "On the basis of the foregoing, we can now readily understand why Maharshal invokes dina demalkhuta dina and minhag ha-medinah in order to validate a leasing agreement. Clearly, a leasing agreement, in accordance with Rambam’s perspective, is no different than individuals who verbally agree to a partnership or the transference of honey and an apple. In all instances, the absence of tangibility precludes any transference. As such, the only solution is Maharshal’s, namely the halakhic recognition of a norm from outside the system via the avenue of dina demalkhuta dina and minhag ha-medinah.",
+ "On the other hand, regarding professional goodwill, one can clearly state that transference of it is effective because one is transferring the actual business enterprise accompanied by its reputation, which is akin to transferring a tree with its fruits.",
+ "However, personal goodwill, which entails an individual’s potential earning capacity, lacks tangibility and therefore cannot be transferred at the time of divorce.",
+ "Seemingly, R. Yanai’s conclusion based upon Rambam’s rulings is open to challenge by various contemporary Poskim who recognize the notion that an individual Jew may own his ideas, sound recordings, etc. despite the absence of tangibility. Prior to modern times, R. Shaul Nathanson, a nineteenth-century decisor residing in the Lvov—a center for Hebrew book publishing—who was aware that the governing civil law recognizes the idea of copyright, exclaims,",
+ "Let not our perfect Torah be thought of as not being at least equal to their idle conversation, which is something that reason rejects . . .",
+ "Sevara (halakhic logic), rather than accepting the law of the land, inexorably led R. Nathanson to his ruling that copyright protection is valid in the eyes of Halakhah. Explicitly or implicitly, contemporary Rabbis Elyashiv, Feinstein, Y. Weiss, and L. Wosner agree with his position. Accordingly, if one recognizes a person’s creations, which in many instances are intangible, one would equally classify personal goodwill as marital property and therefore subject to division.",
+ "However, upon a review of teshuvot and haskamot (approbations in books) that address this issue, one finds that the majority of Poskim advanced other perspectives while implicitly rejecting the aforementioned view of some of the leading contemporary Poskim. One approach is based upon the laws of hasagat gevul (economic competition). Generally speaking, Halakhah recognizes the right of an individual to open up a business that may be in competition with an existing commercial establishment. Whereas during Talmudic and medieval times, these laws were applied within the context of a particular geographical locale, today, with a free market economy, no restrictions are to be applied to new commercial enterprises. Whereas during Talmudic times we address “the alleyway”, and in modern times we have addressed “the neighborhood”, today we focus upon cyberspace.That being said, according to many Poskim, if the entry by the competitor will cause customers to discontinue their patronage of the entrenched firm, such conduct will be prohibited. Consequently, there is a prohibition against the publication of a work while copies of an earlier printing by another publisher were still available for purchase. Allowing the competitor to enter the marketplace will effectively deprive the original firm of his investment and livelihood. In effect, just as an individual’s toil and effort is protected in establishing a business venture, an author’s discovery or invention is similarly recognized due to his investment of time and energy.",
+ "Others invoke the Talmudic rule that if B derives a benefit from A, and A suffers a loss, B must compensate A for the value of the benefit from his property, otherwise known as “zeh neheneh ve-zeh haseir—hayyav”. This rule was extended to encompass a situation where B derives benefit from A’s expenditure. Accordingly, some contemporary decisors contend that this zeh neheneh rule proscribes an individual from copying A’s original published work. R. Zalman N. Goldberg, another contemporary Posek, endorses the implementation of a reserve clause (shiyur), whereby A sells his work, tape, or software to B but specifically excludes from the sale the right to copy the work. Should B proceed to copy it, it is deemed misappropriation (gezel) and therefore B is responsible to compensate A. Finally, some contend that a person’s right to his works is based upon the governing civil law.",
+ "In short, the common denominator of these varying positions is that copyright under halakhah entails protection against unfair competition, unjust enrichment, the enforcement of a reserve clause in a sale, and applicable secular law, rather that the right of ownership. In other words, a person’s creations are protected based upon indigenous halakhic doctrines rather the right of ownership. Implicit, and sometimes explicit, in this approach is the inability to recognize incorporeal things. Consequently, such as a posture is in halakhic alignment with R. Yana’s conclusion that personal goodwill is intangible and therefore isn’t a marital property interest that may be divided upon divorce.",
+ "D. Civil marriage and the duty to pay spousal support",
+ "Assume an Israeli Jewish man and Israeli Jewish woman were civilly married in Cyprus and subsequently the couple desires a divorce to be executed by an Israeli rabbinical court. Additionally, the wife petitions the beit din to address her spouse’s nonpayment of maintenance. How would a beit din decide this issue? Halakhic marriage consists of two separate acts, kiddushin (betrothal) and nissuin (the marriage ceremony). These components have been described in contemporary times in the following fashion,",
+ "In practical terms, kiddushin as the primary state of Jewish marriage can be . . . normatively constituted through the presence of five halakhic elements . . . at the helm stands kavanah (intention). But intention for what? Two divergent interpretations emerge . . . according to one authority, the intent of the couple must be for at least the most minimal and natural characteristics of the marital experience . . . that decision, however, must also include the stipulation that the wife shall be exclusively related to her husband and prohibited to all others. From this intent of le-sheim ishut (exclusivity for the husband –AYW) will then flow all other authority, which will bestow legitimacy upon the formal ceremony and simultaneously form the foundation of the kiddushin. The other view finds the natural standard utterly inadequate . . . what then, shall be the normative canon for kavanah? It must be le-kiddushei Torah or le-sheim kiddushin . . .",
+ "The kiddushin relationship is a mutually agreed-upon tie that establishes a personal status, namely that of a mekudeshet (a woman designated for a particular man and prohibited to all others). Simultaneously, the act of betrothal also creates financial obligations that will be transformed into spousal duties upon the completion of the marriage ceremony, which constitutes nissuin. As R. Moshe Sofer exclaims,",
+ "If spousal maintenance is absent, there is no marital relationship (ishut)!",
+ "Spousal maintenance is a unique monetary obligation that arises from the status of being in a marital relationship.",
+ "The emerging question is whether Halakhah will recognize a civil marriage. Despite the absence of a formal ceremony of kiddushin and nissuin, a few Poskim, such as R. Yosef Rozanne, R. Yehuda Zirelson, R. Yosef Henkin, and R. Menashe Klein argue that the engagement in conjugal relations creates a halakhic marriage and therefore a civil marriage is to be recognized. Adopting such an approach led R. Ben-Zion Uziel to the conclusion that a husband ought to be obligated to support his wife.",
+ "Although civil marriage does not entail the execution of kiddushin and nissuin, which conventionally creates monetary obligations—including a husband’s duty to support his wife, R. Zalman N. Goldberg nonetheless contends that spousal maintenance is an implied condition of living together, whether civilly married or as cohabitating partners. In the context of civil marriage or cohabitation, the husband promises to care and provide for his wife. On the strength of these promises, she performs certain services for her husband, including housekeeping, cooking, offering emotional support, and raising their children. As R. Goldberg notes,",
+ "When one marries a woman civilly, one must follow how marriage is practiced with regard to spousal maintenance and other property matters. It is akin to how when one hires workers one follows the custom of supporting them, even though it is not explicitly mentioned . . .",
+ "Just as there is an implied condition to employ an individual based upon conventional custom, similarly the monetary duties relating to a civil marriage are grounded in custom. And the Tiberias Regional Beit Din endorses his approach.",
+ "However, most battei din fail to adopt R. Goldberg’s posture. Moreover, the majority of Poskim, including R. Moshe Schick, R. Yitzhak Schmelkes, R. Mordekhai Winkler, as well as most contemporary Poskim, contend that betrothal is predicated upon the intent to establish a relationship of ishut, which entails compliance with the laws of family purity and avoidance of licentious behavior. Therefore civil marriage that is executed by non-halakhah-observant people lacks validity. Clearly, the existence of this controversy whether civil marriage is halakhically recognized is at best a safek (a doubt) and when we have a safek one does not extract money from one of the parties. Hence, it is unsurprising that the Beit Din ha-Rabbani ha-Gadol in 1960 exempted the husband who had undertaken a civil marriage from spousal support. And in 2013, another beit din agreed with their conclusion.",
+ "However, another more acceptable approach has emerged from a decision handed down decades ago. In 1962, addressing the situation of two Jews who were married civilly in Russia in 1942 and were seeking a divorce in the Rehovot Regional Beit Din, the panel obligated the husband to make spousal support payments. Despite the fact that the panel subscribed to the majority opinion that a civil marriage is not to be viewed as a halakhic marriage, nonetheless the beit din offered the following rationale for mandating the husband to pay maintenance. Addressing verbal monetary agreements executed between the prospective in-laws during the time of the shiddukhin (engagement), the Talmud teaches us,",
+ "R. Giddal said in the name of Rav: “How much are you giving to your son?” [and the other replies –AYW] “Such and such a sum”, and [when the other asks –AYW], “How much are you giving to your daughter?” [the first replies –AYW] ”Such and such a sum”, [and on the basis of this conversation –AYW] a betrothal was finalized. These are the matters in which kinyan is finalized by verbal agreement . . . owing to the pleasure of the establishment of a family tie they decide to allow each other the full effectiveness of a kinyan.",
+ "In short, according to R. Giddal one can have a meeting of the minds (gemirat da’at) between prospective in-laws without the execution of a kinyan. In accordance with certain Poskim, this ruling is a piece of rabbinic legislation that in effect is limited to verbal agreements consummated during engagement; for other authorities it also encompasses other matters. Invoking the latter perspective, the Rehovot beit din suggests that the scope of R. Giddal’s teaching serves to explain a well-known sixteenth-century controversy focusing upon the claim of Hannah Graces Mendes who was one of the Marrano Jews from Portugal. She moved to Turkey and claimed half of her husband’s estate in accordance with the custom in Portugal, the place of her marriage. The dispute centered on the validity of a premarital agreement that was finalized between two Jews prior to a marriage that was conducted and solemnized in pursuance to civil law. So the issue that emerges is whether the Marrano husband had obligated himself to support his civilly married wife in accordance to the local custom based on R. Giddal’s teaching that validates verbal agreements. If the grounds of his ruling are based upon rabbinic legislation, then this enactment is limited to Jews who undertake a halakhic marriage. Therefore, there would lack a foundational basis for validating the Portuguese custom regarding estate distribution to Ms. Mendes. On the other hand, other Poskim claim that “the pleasure of the establishment of a family tie”, which serves as grounds for gemirat da’at, should be no worse than the effectiveness of undertaking an obligation based upon the governing civil law, namely a kinyan situmta. Consequently, since Portuguese law recognizes that a widow is entitled to half of her husband’s estate, Halakhah validates the law. Relying upon the latter position, the Rehovot beit din affirms the divorcing wife’s right to receive spousal support payments from her husband due to the fact that Halakhah recognizes Russian law concerning this matter. Decades later, addressing the same question, a Netanya beit din composed of the same panel of dayanim agreed with this position on two separate occasions. Whereas the Rehovot beit din invokes its ruling based upon a Russian practice, the two Netanya beit din rulings implicitly accept that an Israeli Supreme Court decision of 2003 serves as the genesis of an emerging minhag ha-medinah that imparted recognition of civil marriages.",
+ "Whereas the Rehovot beit din arrives at its conclusion without examining whether affirming the minhag ha-medinah regarding awarding spousal support of a civilly married wife may be impacted by the element of issur, the Netanya beit din painstakingly demonstrates the cogency of the Rehovot beit din’s reliance upon the Mendes matter in order to reach its ruling.",
+ "In order for a minhag to pass halakhic muster, the customary behavior cannot abrogate issur ve-hetter (ritual matters). As we know, minhag mevatel Halakhah (custom supersedes the law) only with regard to monetary issues. Seemingly, Rashba’s decision, which is adopted by Rema, that rejects the acceptance of the minhag that a grandfather is the heir to his grandchild’s estate instead of his father, flies in the face of those Poskim who recognize a wife’s entitlement to support from her husband based upon a Portuguese custom. Astutely, the Netanya beit din distinguishes between the two situations. Regarding Rashba’s scenario, the beit din argues that we are addressing a minhag that changes hilkhot yerushah, namely that a grandfather should inherit his grandchild’s estate rather than his father. Such customary behavior cannot be recognized because it engages in the commission of an issur, namely changing the Halakhah of inheritance. On the other hand, the Poskim who subscribe to legitimating a custom whereby a husband undertakes personal obligations, including spousal support of his civilly married wife, does not entail the violation of an issur. As such, even though generally a spousal support duty emerging from the establishment of a halakhic marriage is the prescribed avenue of imparting recognition for this monetary duty, nonetheless the beit din concluded that we recognize a minhag whereby monetary obligations emerge from marital ties, even though a civil marriage, according to the majority view, is an invalid form of creating such ties. Therefore, whereas in this case minhag is mevatel Halakhah, in the former situation, the presence of the violation of an issur preempts the possibility that minhag will be determinative.",
+ "Alternatively, the Netanya beit din contends that the rule of minhag mevatel Halakhah is inapplicable in our situation. Generally, the rule in yerushah matters is operative in cases where the customary behavior redistributes the entire inheritance of the Torah heir to a non-Torah heir. However, if the minhag only divests a portion of the Torah heir, then the minhag is not tainted by an issur. Consequently, relying upon the Portuguese practice, the widow in the Mendes estate matter was entitled to receive half of her husband’s estate. Had she received the entire estate, the transfer would have been halakhically invalid. On the other hand, addressing a practice of an entire divesture of an estate from a Torah heir leads Rashba to the conclusion that such a minhag lacked validity and therefore such a transfer ought not to be recognized.",
+ "Based upon the foregoing, despite the rejection of the institution of a civil marriage as a form of halakhic marriage, nevertheless, as we have seen, some battei din will validate monetary rights created by this relationship based upon invoking minhag ha-medinah.",
+ "In conclusion, our presentation shows how many contemporary Israeli rabbinical courts treat various issues regarding divorce radically differently from how the eighteenth-century beit din of Metz dealt with these matters. As we have seen, the Metz rabbinical court resolves the issues of the division of marital assets through the Talmudic prism of nikhsei melog and nikhsei tzon barzel. Over a century later, some Israeli battei dins implicitly follow in their footsteps. Unwilling to give halakhic receptivity to the governing Israeli law, these rabbinic panels impart halakhic credence to parties willing to have their matters resolved in accordance with Israeli law. By mandating that a couple execute a kinyan demonstrating their willingness to be governed by Israeli law, a beit din has accomplished two things. Firstly, the parties’ expectations to have their issues resolved according to civil law have been satisfied. Secondly, the beit din is able to deal with the matters without halakhically recognizing the prevailing civil law as a reflection of minhag ha-medinah. As we mentioned, some dayanim rejected this minhag as invalid due to the fact rabbinic authorities have failed to endorse it. Others implicitly accept the notion articulated by Dayan Uriel Lavi, av beit din of Tzfat Regional Beit Din,",
+ "The source of the authority (the validation –AYW) is the kinyan (the symbolic act for undertaking the obligation) rather than the law.",
+ "Furthermore, lurking behind their steadfast opposition to validating the minhag is that the minhag is ideologically aligned and socially associated with feminism and egalitarianism, which are values antithetical to Halakhah.As Dayan Avraham Sherman notes,",
+ "The law of partnership has been transformed into a legal mechanism in order to achieve a social purpose. It is intended to attain social justice based upon equality between the sexes.",
+ "However, upon our review, we found that there were many battei din that are prepared to validate this secular law as minhag ha-medinah. The threshold concern is to initially determine whether the practice is clear, widespread, and has transpired at least three times. Once “the minhag is established”, then battei din have proceeded to assess whether this practice ought to be grounds to resolve pending divorce issues. For example, numerous battei din have been willing to divide up assets upon divorce in accordance with Israeli community property principles, which is minhag ha-medinah. Moreover, in cases where the wife is awarded significant sums of money and/or real estate, numerous panels have concluded that the husband is exempt from remitting the value of the ketubah to his wife. Said conclusion is not simply based upon the sevara that such an award is a deterrent to becoming divorced and therefore there would be no basis for awarding the value of the ketubah, which equally was instituted in order to preempt the possibility of a rash divorce. On the contrary, as we demonstrated, the hilkhot shekhiv mei-ra direct a beit din to render such a judgment. However, in 2013 alone, despite the minhag ha-medinah, there were over half a dozen battei din that mandate that the husband pay the value of the ketubah with figures ranging from 180,000 shekalim to two million shekalim.",
+ "On the other hand, though a beit din could have invoked personal good will as a marital interest that ought to be subject to community property distribution based upon minhag, nonetheless the beit din—in a painstakingly detailed discussion—rejected such a conclusion based upon the halakhot of undertaking obligations. Finally, though according to the majority of Poskim, a civil marriage does not conform to the tenets of halakhic marriage—which would create a duty, among others, to support one’s spouse—nonetheless, based upon minhag, the panel arrived at the conclusion that a civilly married husband is obligated to support his civilly married wife. Attuned to the fact that the effectiveness of a minhag is contingent upon the fact that it does not impinge on any issurim, the panel clarified why this practice is to be validated.",
+ "In sum, despite the fact that hezkat shituf—which emerges from various 1960 Israeli Supreme Court decisions and was subsequently ratified by the Knesset in 1973 in the form of legislation serve as the backdrop for minhag ha-medinah—is based upon the values of egalitarianism and feminism. Whereas, the rulings of the Metz Beit Din imbibe the norms of the classical matrimonial property system found in the Talmud, in many instances contemporary Israeli battei din choose to employ minhag as the vehicle for resolving issues emerging from a divorce situation."
+ ],
+ "Chapter 5; Two types of Bittul Kiddushin; Kiddushei Ta'ut and Umdana": [
+ "Kiddushei Ta’ut and Umdana",
+ "1. Kiddushei Ta’ut (Mistaken Betrothal)",
+ "One of the solutions increasingly offered by many authorities to address the situation known as the plight of “the modern-day agunah”, whereby a husband refuses to grant a get to his wife, is for a beit din or a posek (an arbiter) to engage in “bittul kiddushin” (voiding the marriage). Halakhah recognizes two avenues of voiding a marriage retroactively. The first way is to invoke an umdana (an assessed expectation) that “ada’ata de-hakhi lo kidshah nafshah” (“on this assumption she did not betroth herself”). For example, a wife didn’t expect to live with an apostate or a mentally dysfunctional individual. The alternative method is based upon an error in the initial creation of the marriage known as “kiddushei ta’ut” (mistaken betrothal), by means of which one may void the marriage. In both situations, assuming certain conditions are obtained, the wife is free to remarry without receiving a get according to various Poskim. In our presentation, we will be examining umdana and kiddushei ta’ut.",
+ "Let us begin by examining the technique of kiddushei ta’ut, as it relates to grave preexisting marital flaws in the husband’s personality. Prior to a wife invoking the tool of kiddushei ta’ut to void a marriage retroactively and claim there was an error in the creation of the marriage, three preconditions must have been obtained:",
+ "(1) The husband’s defect must be a major one (a mum gadol), such as sexual impotency, refusing to have children, insanity, homosexuality, apostasy, a marital expectation communicated by the prospective husband prior to the marriage which turns out to be a misrepresentation, engaging in criminal behavior—such as business fraud and pandering prostitutes or exposing one’s mate to a contagious disease such as syphilis or HIV, but only if such a flaw was present prior to the onset of the marriage. All of the aforementioned examples of a husband’s flaws have been characterized by one or more authorities as a mum gadol. Whether a particular defect serves as a major defect and therefore grounds for voiding a marriage is subject to the discretion of an arbiter or beit din. Consequently, there will be a difference of opinion concerning the severity and the magnitude of the defect that is required to void the marriage. Clearly, as R. Hayyim Berlin of the nineteenth century and Rabbi Shalom Messas of the twentieth century duly note, one must be concerned with “the slippery slope”, lest a decisor allow an insignificant flaw such as a husband’s periodic outbursts of anger, being a spendthrift, or stinginess as grounds to void the marriage. In effect, bittul kiddushin under such conditions would result in undermining the institution of halakhic marriage and therefore they refuse to employ such a tool!",
+ "(2) The wife must be unaware of the defect prior to the inception of the marriage and must only discover it after the marriage. On the other hand, if, for example, a husband commits adultery or contracts Alzheimer’s during the marriage, though both may be characterized as a mum gadol significantly impairing the matrimonial relationship, there would nevertheless be no grounds for a wife’s claim that the marriage was consummated in error because the conduct or disease respectively occurred after the onset of the marriage.",
+ "(3) Finally, upon a wife’s awareness of the major latent defect that her husband may have intentionally or unintentionally failed to disclose to her, she must decide to leave the marriage. Regarding this condition, whether she must immediately leave the marriage or not is subject to debate. According to Mishnah Torah, Tur, Beit Yosef, Rema, R. Akiva Eiger, R. Yehezkel Abramski, R. Hayyim Zimbalist, R. Shalom Messas, and some Israeli battei din, the wife must discontinue engaging in conjugal relations and receiving support from him and she must immediately leave the marriage. On the other hand, in pursuance to Arukh Hashulhan and Rabbis Kook and Messas, she may continue to live with him provided it isn’t for an extended period of time. For R. Yosef Baer Soloveitchik, R. Naftali Berlin, R. Klatzkin, R. Yehiel Weinberg, R. Binyamin Weiss, and Dayan Boaron—who deal with a fact pattern that she continues to live with him an extended period of time after the disclosure and do not raise such a mandate of opting immediately out of the marriage—assume that she may live with him for an extended period of time without articulating the reasons for their position. Others, such as Rabbis Sholom Schwadron and Moshe Feinstein, Dayanim E. Goldschmidt, S. Karelitz, and Y. Bavliki, argue that she may continue to live with him provided she offers a reasonable explanation. For example, according to R. Shimon b. Zemah Duran, R. Elhanan Spector, R. Yehezkel Abramsky, R. Yehoshua Ehrenberg, and Dayanim Batzri, Rabinowitz, Algarbali, and Eliezrov, the need to provide material support for herself and her children or an attempt to cure her husband’s flaw may serve as reasonable explanations for remaining in the marriage. Subsequently, should the particular reason(s) become inapplicable, the wife must immediately bolt the marriage. For example, if a wife discovers during the marriage that her husband is mentally dysfunctional, under certain conditions this behavior would be labeled as “a major defect” and therefore under certain circumstances the marriage may be voided. However, if the husband attempts to address the situation by attending therapy sessions and/or take medication and the situation improves; should he subsequently fail to give her a get, there would be no basis for her to advance a claim for kiddushei ta’ut. On the other hand, should the therapy and/or medication fail to address the situation, she must bolt the marriage immediately, and should her husband be recalcitrant regarding the get a rabbinic authority (or authorities) will determine if there are grounds to void the marriage based upon kiddushei ta’ut.In short, assuming all three conditions have been met, such a marriage, which was consummated by the wife when she was unaware of her husband’s major defect, may be voided. As such, she is freed from the marriage without the receiving of a get from her husband.",
+ "Seemingly, this solution has no halakhic precedent. Firstly, should we allow voiding a marriage, people might err and think that “a wife may leave her husband without receiving a get”. Moreover, the Mishnah in Kiddushin clearly states that the dissolution of matrimonial ties is effected either through the delivery of a get by the husband to the wife or by the husband’s demise and our Amoraim, (Talmudic sages) as well as the authors of our classical restatements of halakhah such as Alfasi, Mishneh Torah, Tur, and Shulhan Arukh never authorize voiding a marriage retroactively based upon the existence of major latent defects found in a spouse without the delivery of a get. Lest one argue that silence regarding kiddushei ta’ut does not imply opposition to this solution, this is contradicted by the fact that the Shulhan Arukh and others address the case of latent defects found in a wife and conclude, though the marriage is doubtful, there is a rabbinic requirement of get le-humra (as a precautionary measure). The same conclusion ought to apply concerning discovery of hidden flaws found in the husband. Moreover, absent a prior tenai (stipulation) by the husband regarding his wife’s hidden defect, in pursuance to Shulhan Arukh’s ruling, the discovery of the flaw after the onset of marriage may not serve as a basis for bittul kiddushin. Consequently, it is understandable for some Poskim to conclude that if the wife advanced a tenai concerning the hidden defect prior to the marriage, upon discovery of the defect after the marriage a get le-humra would be required rabbinically; this would be no different than the situation of a husband who stipulates prior to the marriage regarding a wife’s latent flaw and upon marriage discovers the defect. Furthermore, if diseases such as HIV or syphilis, which expose the wife to danger, were unknown to her prior to the marriage and were discovered after the marriage, she may immediately request a get. Should a wife advance such a claim, a beit din will obligate him to grant a get. And some contend that under certain conditions one may coerce him to give a get. In effect, according to this position only compulsion orders and obligatory orders of a beit din serve as means to address a husband’s compliance to give a get.",
+ "On the other hand we encounter numerous decisors who, under certain circumstances, utilize the instrument of kiddushei ta’ut as a solution to free an agunah from her marital bonds without the requirement of a get. Failure to disclose certain preexisting defects prior to the marriage—such as sexual impotency, mental dysfunction such as schizophrenia and borderline personality disorder, possibly epilepsy, a criminal past, and misrepresentation—may serve as grounds for voiding a marriage. In our contemporary context, what drives a Posek to seek such a solution? Regretfully, on many occasions the issuance of compulsion orders and obligatory orders of a beit din will be unable to motivate a husband to give a get. Obviously the personal predicament of the agunah who is dealing with a recalcitrant husband may serve as a motivating factor to be responsive. As R. Avraham ben Mordekhai ha-Levi of eighteenth-century Egypt observes,",
+ "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 situation of such a woman has been likened to that of a moribund individual in imminent danger of death (a goses) and the withholding of a get entails a stricture ancillary to the prohibition of murder (avizraihu de-retzihah).",
+ "However, beyond this vital concern for the agunah’s plight, given the contemporary inability of implementing the halakhic mechanism of get coercion, common sense dictates that a solution be found. Halakhah has been characterized by many as “torat hayyim” and therefore, dating back to the times of the Mishnah and Talmud, Halakhah has provided the ilot gerushin (grounds for a beit din to obligate or coerce a husband to grant a get to his wife). With the issuance of these divorce judgments, a beit din’s authority in Torah-observant communities throughout the ages seems to have been quite effective in ensuring get compliance. (Absent any historical studies regarding this matter, we are positing this conclusion.) And, therefore, we encounter few discussions from earlier centuries regarding kiddushei ta’ut relating to a husband’s flaws.",
+ "If we fast-forward to modern times, we confront a somewhat different picture. On one hand, in twentieth-century Eretz Yisrael, the battei din under the aegis of the Chief Rabbinate are legislatively empowered by the Israeli Knesset to issue compulsion orders, which will result in the incarceration of husbands who refuse to give a get to their wives. They can also render obligating judgments, which, if the husband does not comply, will restrict his right to leave the country, open or maintain a bank account, etc., and benefit from other privileges. Assuming that the Israeli battei din authorize such orders, noncompliance by recalcitrant husbands might result in imprisonment or denial of certain social and economic benefits, which may serve as an effective deterrent for continued refusal of a husband to give a get to his wife. As such, in many situations the implementation of bittul kiddushin may not be required.",
+ "However, today in the United States and other places around the world, battei din are not empowered to issue such types of divorce judgments that would mean a husband’s incarceration or denial of benefits if he refuses to comply. Absent the existence of such legal and economic sanctions, the halakhic legal system has its hands tied in the face of a husband’s get recalcitrance. Consequently, common sense dictates that there is an acute need to address the agunah’s predicament by searching for other instruments to address igun matters—ways that will not run afoul of legal strictures of non-enforceability of get compliance.",
+ "Consequently, it should be of no surprise to find that the nexus between the legal inability to issue compulsion orders and the acute need to employ the technique of kiddushei ta’ut to address the agunah problem is uppermost in the minds of some contemporary Poskim. For example, in the early twentieth century, dealing with an impotent husband, implicitly adopting R. Elhanan Spektor’s nineteenth-century Lithuanian position, R. Eliyahu Klatzkin of Lithuania and Eretz Yisrael observes,",
+ "In particular in our times, we should contend . . . that there is a mistaken transaction (marriage –AYW) in our situation because during the period when battei din had authority, it was proper to compel him to divorce her . . . but this is not the case in our time when the power of battei din is not so effective, and in the secular courts she will be given the right to remarry.”",
+ "A few decades later, addressing the case of a mentally deranged husband, R. Feinstein argues that we invoke the Talmudic principle that “one cannot live with a snake in the same basket”, which may serve as grounds for coercion of a get. Given that R. Feinstein, as well as other Poskim of the twentieth century, are well aware of the fact that get coercion is not an option and that unlike a wife who fails to disclose to her husband prior to the marriage a mum gadol he may divorce her against her will and this option is unavailable for a husband’s who fails to disclose prior to the marriage a mum gadol, R. Feinstein argues that insanity is to be viewed as “a mum gadol” and therefore the marriage may be invalidated based upon kiddushei ta’ut. The inability to employ coercion equally propels R. Feinstein to invoke “kiddushei ta’ut” in the situation of a husband who is sexually impotent and fled. Focusing upon another situation of a mentally dysfunctional husband, a Yerushalayim Regional Beit Din notes,",
+ "“If one cannot coerce the granting of a get the marriage was definitely a mistaken marriage.”",
+ "Subsequently, relying upon R. Feinstein’s insistence that the absence of the implementation of coercion requires one to examine the merits of utilizing the technique of kiddushei ta’ut, another Yerushalayim Regional Beit Din contends that given that the husband intentionally failed to disclose his mental state prior to his marriage, the marriage is therefore void. Acutely aware of the inability to implement coercive measures today, others such as Rabbis Yehezkel Landau, Shaul Nathanson, Tzvi Pesah Frank, and Ovadia Yosef argue for utilizing kiddushei ta’ut as an avenue for addressing the agunah problem.",
+ "All of the aforementioned Poskim are implicitly following the mesorah (halakhic tradition) enunciated by nineteenth-century Poskim. As R. Dovid Babad, a famed nineteenth-century Posek of Galicia, communicates to us such a mesorah (tradition):",
+ "“I heard from ha-Gaon R. Barish Rapaport . . . that he had a mesorah from his Rav, ha-Gaon Noda be-She’arim, Av Beit Din of Lublin, that upon receiving a question to address, he would first weigh in his mind the truthfulness of the matter according to what human reason dictates and if in his estimation of human reason the matter is true, then he would delve into halakhah to arrive at a decision.”",
+ "To place this mesorah in our context, human reason dictates that a solution must be found to address the matter of get recalcitrance. Whether in fact, a solution will be found will depend upon whether the norms of the halakhic system offer a solution. In contemporary times, this mesorah has been explicitly adopted by Poskim to address the classical case of the agunah whose husband has disappeared; it ought to be equally invoked for an agunah whose husband refuses to give a get. Given, as we mentioned, that our amoraim—as well as the authors of our classical restatements of Halakhah such as Mishnah Torah, Tur, and Shulhan Arukh—never authorized voiding a marriage based upon the existence of major latent flaws found in a spouse without the delivery of a get, what is the justification for invoking the tool of kiddushei ta’ut, which would free a wife without the delivery of a get? In Bava Kama, the Talmud addresses the situation of a “mekah ta’ut” (a mistaken transaction) where the buyer has to rescind the sale due to a defect found in the item that was bought. Upon discovery of the flaw, the buyer has a right to return the object to the seller. One of the conditions for the rescission is that the buyer was unaware of the defect when he purchased the item. If, at the time of the sale, the buyer was aware of the defect, the sale is final. Among the mekah ta’ut matters that the Talmud addresses is the case of yibum (levirate marriage). A yevamah is the widow of a man who died childless and was survived by his brother. Under Halakhah, they are obligated to marry one another. Should the brother-in-law refuse to marry her, he must release her by means of a ceremony called halitzah (removal of one of his shoes). Should the surviving brother known as the yavam (levir) neither marry the yevamah nor perform the halitzah, she becomes an agunah. Dealing with a childless widow, the Talmud states,",
+ "A childless widow whose lot falls for yibum consideration before a brother-in-law who is afflicted with a severe skin disease (boils) (and as a result is physically repulsive to her –AYW) should be released without halitzah because she did not betroth herself in marriage to her brother-in-law with this in mind.",
+ "However, rejecting the wife’s reasoning, the Talmud cites Reish Lakish’s ruling approvingly,",
+ "In that case we can attest that a woman is ready to accept any conditions (provided she is married to her first husband) . . . for Reish Lakish said: it is better to live as two than to remain in widowhood.",
+ "Consequently, given that marrying a brother-in-law who is afflicted with boils is preferable than to remaining a widow, her first marriage cannot be considered a mekah ta’ut. Consequently, Tosafot extrapolates that in all situations where a husband exhibits major defects, a wife cannot argue that there is a mekah ta’ut because she prefers living with any man even if there is exists a danger in the future that she will be forced to live with her brother-in-law who is afflicted with a skin disease rather than live a life of spinsterhood. In effect, Reish Lakish’s hazakah (presumption), which in Aramaic is termed “tav le-meitav tan do mi-le-meitav armalu” has been understood as an ontological and existential fact rather than linked to cultural, sociological, and psychological factors—the latter of which would result in the inapplicability of this hazakah in certain contexts. Therefore, it is unsurprising to find that many Poskim who prohibit implementing the method of kiddushei ta’ut rely upon this Talmudic passage as one of the grounds for their position while others will rebut the hazakah in cases where there are grounds to coerce a get and such relief is unavailable.",
+ "On the other hand, Rabbis Yitzhak Elhanan Spektor, Hayyim Ozer Grodzensky, Moshe Feinstein and others argue that if the tav le-meitav presumption is operative under all circumstances, how were the authorities permitted to coerce a husband to divorce his wife in a situation where the wife cannot tolerate her husband’s behavior? Obviously, the presumption is not invoked under such circumstances! Moreover, according to Rashi’s interpretation of the passage, the two talmudic statements “she is satisfied with anything” and “it is better for her to live in this state” refer specifically to the case of a yavam who has a serious skin disease rather than to latent flaws in all marriages. Espousing Rashi’s position, others conclude that in many other instances that entail a major defect, a wife may claim mekah ta’ut because she is unwilling to live with a husband who is repulsive to her.",
+ "Endorsing R. Spektor’s approach as well as others that the presumption may be rebutted in light of circumstances that include an undisclosed major flaw, decisors have operated with two different paradigms for defining a mum gadol of a husband. One model is to extrapolate from the situation of hidden defects found in a wife. If a certain flaw in the wife’s physiological makeup or psyche is viewed a mum gadol, similarly such a defect may be classified as a major defect in the husband’s makeup. For example, many authorities argue that a husband would refrain marrying an ailonit (a woman who is incapable of procreation). Relying upon this position, there are some Poskim who contend that an undisclosed flaw of such magnitude, such as a wife’s feelings regarding her apostate husband stands, on par to a husband’s feeling regarding an ailonit that he married and therefore serves as grounds for freeing a wife without a get. However, numerous authorities have rejected such an extrapolation. One of the reasons for rejecting the inference may be due to the questionable right to define the contours of what constitutes a grave defect in regards to creating kiddushei ta’ut, where a wife is freed without requiring a get, by invoking the scope of a wife’s major defects—where the halakhic consequence for a wife (even an ailonit according to certain decisors) who did not disclose the defect still includes according to some Poskim the need for a get on a rabbinic level or a get le-humra (the requirement of a get as a precautionary measure). To state it differently, one cannot define what constitutes a mum gadol of a husband, which may result in freeing the wife from her husband without a get, from the nature of a mum gadol of a wife, which may result—according to certain authorities—in requiring a get. Another explanation offered for rejecting this paradigm is the fact that there exist no grounds for get coercion when a husband fails to disclose his grave defects. If coercion is unavailable, there are no grounds for employing kiddushei ta’ut in such a situation!",
+ "Given that kiddushei ta’ut is predicated upon the notion of ta’ut, it is unsurprising to discover another paradigm; the model of mekah ta’ut for rescinding a sale is applied towards defining the contours of a mum gadol concerning kiddushei ta’ut. As we know, anything that the majority of the community considers a defect in an item and said defect is neither obvious nor disclosed to the buyer prior to the purchase generates the buyer’s right to void the sale. Similarly, numerous contemporary Poskim and Dayanim contend that any defect viewed by society that relates to the essence of the marriage and/or its ongoing stability is to be understood as a mum gadol and therefore, under certain prescribed conditions, may free a wife from her marriage without the requisite need for a get.",
+ "In effect, the recognition of a particular grave defect serves as an example of a mistaken transaction, which in effect undermines the presumption of “tav le-meitav tan do mi-le-meitav armalu”. A review of the teshuvot reveals that in multifarious situations authorities argue that we encounter a mekah ta’ut that rebuts the presumption and allows the wife to remarry without the giving of a get. For example, in accordance with Havot Ya’ir, the tav le-meitav presumption is based upon the wife’s desire to engage in sexual relations with her husband. Consequently, it is unsurprising that some Poskim invoke kiddushei ta’ut in situations where prior to the marriage the husband is sexually impotent, refuses to have children, or is a homosexual. This understanding of the presumption is also in evidence with decisors who free a wife from halitzah in cases of latent defects discovered in the now-deceased husband. Lest one contend that given that rulings regarding a halitzah situation (which entails an “issur lav”) are not treated halakhically as stringent as a marriage case (which involves “karet”) due to the fact that the halitzah case neither involve a matter of ervah nor eishit ish and therefore may not serve as a precedent for matrimonial situations, numerous Poskim nonetheless clearly derive conclusions from halitzah situations and apply them to marriage cases in matters of kiddushei ta’ut. In other words, even though a shomeret yavam (a widow waiting for her deceased husband’s brother to perform halitzah) is biblically prohibited to anyone else and her personal status is not as stringent as the status of a married woman who is biblically prohibited to anyone else, one may nonetheless apply halitzah rulings to marriage cases.",
+ "A cursory glance of teshuvot memorialized in Otzar ha-Poskim and elsewhere shows that the tav le-meitav presumption is not limited to the sexual underpinning of the relationship but equally applies to instances where the matrimonial bond becomes severely compromised by a husband’s grave flaws such as mental dysfunction, criminal behavior, imprisonment, danger to his wife’s physical health, misrepresentation, nonobservance, and apostasy that existed prior to the marriage and only were discovered after the marriage was created. Obviously, a dayan must be astute and keenly aware of the slippery slope and therefore be very cautious in assessing what constitutes a grave latent defect, lest one undermine the institution of marriage. Consequently, though certain types of behavior or diseases such as temper tantrums, stinginess, and diabetes may impact upon marital stability, nonetheless such flaws would generally fail to be classified as a mum gadol that could potentially, under certain conditions, be grounds for a mekah ta’ut. Therefore the marriage would remain intact and its dissolution would mandate a get. Invoking such conduct or diseases as a mum gadol and freeing the wife without a get would only result in the travesty of the halakhic decision-making process in general and the institution of marriage in particular!",
+ "That being said, as we have described in great length, there are nevertheless some situations that have serious halakhic bases for utilizing kiddushei ta’ut. As such, the instrument of kiddushei ta’ut, under certain prescribed conditions, may serve as a basis for voiding a marriage retroactively. To buttress their rulings, some Poskim chose to rely upon both earlier rulings of predecessors as well as the judgments of R. Simhah of Speyers, R. Ya’ir Bachrach, R. Elhanan Spektor, and a recent Israeli rabbinical court ruling who espoused le-halakhah (in theory) this method but due to the humra of eishit ish (the stringency of a woman being endowed with the status of a wife) refrains from implementing this tool le-ma’aseh (in practice). Invoking these types of theoretical rulings as practical judgments in other contexts is not unusual;therefore, the adoption of the position of the aforementioned authorities of validating bittul kiddushin le-ma’aseh should evoke no surprise at all!",
+ "In short, in the absence of being able to physically coerce a husband to give a get to his wife, numerous authorities have voided a marriage based upon implementing the method of kiddushei ta’ut in cases where the wife discovers during her marriage a latent flaw in her husband that was unbeknownst to her but existed prior to the marriage, Under certain prescribed conditions numerous Poskim have freed the wife from her husband without the issuance of a get.",
+ "2. A wife’s umdana (assessment of expectations) after the onset of marriage",
+ "In contradistinction to kiddushei ta’ut, where one focuses upon the past—namely, when there was a mistake at the time of consummating the marriage in the form of an undisclosed grave preexisting personality and/or medical [or psychological] disorder and consequently, the marriage may be voided retroactively—when one invokes umdana as a grounds for voiding a marriage, we are focusing on a future occurrence—i.e. one that transpired after the creation of the marriage. For example, “had I known that my husband would have been physically abusive to me or would be become mentally dysfunctional during our years of marriage I never would have married him” may serve as illustrations of a wife invoking an umdana demukhah (a major assessment of expectations) which we hereafter label for the sake of the presentation as umdana. On the other hand, if a wife would allege that “I never knew that my husband’s violent behavior during the marriage is linked to certain biological factors that pathologically expressed themselves prior to the marriage”, which should serve as red flags for future abusive conduct, she is now making a claim that allows for employing the technique of kiddushei ta’ut, not umdana.",
+ "In the context of these two distinct types of bittul kiddushin, how would Halakhah deal with claims of domestic violence? The professional secular literature is divided whether the conduct of perpetrators of domestic violence is linked to genes, the testosterone-serotonin link, or related to environmental stimulation—such as childhood exposure to violence, provocation, and current life conditions, or a combination of both biological and non-biological determinants. If a Posek espouses the position that there exist biological roots to domestic violence, assuming that the wife’s allegations of physical abuse can be corroborated, and the data indicates that the husband’s pathological behavior existed prior to the marriage, then the arbiter will have to determine whether there are sufficient halakhic grounds to invoke the tool of kiddushei ta’ut to address the matter of igun. Alternatively, assuming that the husband’s aggressive behavior cannot be corroborated to have transpired prior to the marriage; can one rely on the professional literature that supports the view that there are biological roots to all aggression and employ the technique of kiddushei ta’ut? Does one require that the husband’s pathological behavior of abuse have manifested itself prior to the marriage? Is relying upon the notion of biological determinants of abuse existing prior to the marriage insufficient to invoke kiddushei ta’ut? Clearly, prior to the marriage, a person may have possessed this tendency, but if it was never realized then perhaps the tendency alone does not qualify as a mum gadol and therefore would be insufficient to create a kiddushei ta’ut.",
+ "However, on the other hand, if the halakhic authority endorses the position that spousal violence is related to non-biological factors, assuming that the wife’s claims of abuse can be corroborated, the question is whether her exclamation “had I known that my husband would have been physically abusive to me or would be mentally dysfunctional during our years of marriage I never would have married him” may serve to free her from her husband without the requirement of a get via the employment of the technique of umdana.",
+ "These are all important questions. Yet, to date, to the best of my knowledge, Poskim have not addressed these issues and this matter requires further limmud, study.",
+ "Seemingly, the employment of an umdana here is open to challenge. As we know, for an umdana to be effective depends upon the consent of both parties. For example, a sales transaction involves the agreement of parties, the seller and the buyer—i.e. “taluy be-da’at shneihem”. The voiding of the sale with the appearance of a defect subsequent to purchase would be predicated upon two conditions:",
+ "1. The buyer would have not consummated the deal if he had realized that the item sold would be defective within a reasonable time.",
+ "2. The seller would negotiate the sale contingent upon the utility of the item being sold. In other words, the voiding of the sales transaction is dependent upon the existence of both the seller’s and buyer’s implied conditions.",
+ "The requirement of “taluy be-da’at shneihem” as a precondition prior to the invoking of an umdana equally applies to marriage, which is based upon the consent of both a man and a woman. For example, if a husband is engaged in criminal activity while married, the fact that a wife would exclaim “had I known he would be a criminal, I never would have married him” would seem to offer no basis for voiding the marriage, since a similar statement must have either been articulated by the husband or be presumed on the husband’s behalf. In fact, the husband may not want to void the marriage in order to avoid his sexual intercourse being viewed as be’ilat zenut (an act of prohibited fornication). However, in contradistinction to R. Betzalel Stern’s view, adopting the views of Rabbis Mordekhai Hillel, Zvi Ashkenazi, Shmuel Landau, Beit Meir, Hayyim Halberstam, Zvi Shapiro, Moshe Zweig, Moshe Feinstein, Ezra Batzri and others, in cases of a major umdana—or what has been labeled as an umdana demukhah (a major inference expressed by one person), suffices in order to void a marriage. Let us examine a case where the wife was unwilling to undertake the marriage unconditionally. Regardless of whether the husband agreed to the condition or not, there would be no validity to the marriage unless the wife’s expectation would be met that the marriage would be established based upon certain circumstances. If the circumstances fail to materialize, there never existed a meeting of the minds of the parties. As such, if prior to the marriage the husband had represented that he was a man of financial means and it was discovered later that he wasn’t wealthy; or that he represented himself as a scholar and it was discovered that he wasn’t knowledgeable, such an umdana may be classified as minor and therefore would not serve as grounds to void the marriage. On the other hand, if a husband becomes an apostate or mentally dysfunctional during the marriage, such conduct may be classified as undermining the institution of marriage and an example of umdana demukhah and, as such, may serve as grounds for the wife to remarry without receiving a get. Such a conclusion will be subject to a beit din’s discretion.",
+ "It is important to note that the umdana is not merely defined by the impropriety of the husband’s conduct, but equally by the wife’s inability to halakhically extricate herself from her marital relationship. As R. Meir Posner points out, prior to invoking the umdana one must be assured that there exists grounds to coerce the husband to give a get. The umdana of ada’ata dehakhi lo kidshah nafshah (“upon this assumption she did not betroth herself”) tells us that the wife expects that she will be able to exit the marriage if her spouse acts improperly. If get coercion is a distinct possibility, she may have contemplated that her marriage could have been dissolved by get coercion due to her spouse’s inappropriate behavior. As such, there she would not invoke the umdana because she was empowered to direct the beit din to coerce her husband to give a get. Consequently, in accordance with this approach, in Eretz Yisrael where there is an option of get coercion, her claim possibly may not be deemed as an umdana demukhah. On the other hand, in countries outside of Eretz Yisrael where get coercion is legally unavailable, this in effect opens up the possibility of her becoming an agunah without any relief. Therefore, under such conditions, she never was prepared to marry such a man without the ability to extricate herself from the marriage. Under such circumstances, should a wife utilize the means of umdana, there may be grounds to void the marriage.",
+ "The locus classicus of the operation of this umdana may be found in an inference derived from the aforementioned Talmudic passage regarding a childless widow who is obligated to marry a brother-in-law who is afflicted with a skin disease. Addressing the case of an apostate yavam who refuses to perform halitzah and agunah who engaged in illicit affairs with non-Jews, sired a child and married a Jew, Rabbi Meir of Rothenberg (known by the acronym Maharam), a thirteenth-century German arbiter, rules le-halakhah (in theory) that the yevamah is free to remarry without having to undergo halitzah. Though Maharam is well aware of some earlier Geonim who permitted the yevamah to remarry due to the fact that, by dint of becoming an apostate, he no longer is to be viewed as a Jew, he nonetheless aligned himself with Rashi’s position that an apostate Jew remains a Jew and offered another rationale for freeing the yevamah without halitzah. In his view, and possibly relying upon the twelfth-century opinion of the French decisor R”I, had the yevamah known of this danger she would have never married the apostate’s brother. Though the Talmud presumes that a wife would be ready and willing to marry a man who was afflicted with a skin disease, Maharam contends that she would be unwilling to marry an apostate Jew. In other words, her sexual urge to live with him would not propel her to live with a nonobservant person! And Maharam did not distinguish between whether the apostasy occurred before the marriage or subsequent to his brother’s marriage. In other words, regardless of the time of her brother-in-law’s apostasy, there is an umdana of ada’ata de-hakhi lo kidshah nafshah—that she would never have married his brother had she been aware of her brother-in-law’s apostasy. In effect, given the circumstances, the tav le-meitav statement is a presumption that is rebuttable. Since living with an apostate husband potentially exposes the wife to religious non-observance, including but not limited to infractions of halakhot of family purity, Maharam therefore explains that one may invoke an umdana that she is not interested in being married to him. In effect, the invoking of this umdana is understood as a vehicle to establish an implicit or implied condition that her husband would not have an apostate brother lest her husband die and her brother-in-law insist to marry her rather than perform halitzah.",
+ "Despite the fact that Maharam’s ruling was not le-ma’aseh and was subsequently rejected by both Shulhan Arukh and Rema, in practice, nevertheless, as we noted earlier in our presentation concerning kiddushei ta’ut, Poskim did not hesitate to invoke a theoretical opinion upon arriving at a practical decision. Similarly, in the case of an umdana, subsequent authorities would employ Maharam’s position even though it was only given in theory! In fact, in fifteenth-century Germany, a similar scenario arose where a yevamah was unwilling to marry her apostate brother-in-law. Despite offering him an exorbitant sum of money, he refused to perform halitzah. Eventually, she became promiscuous and married another Jewish man. Addressing this case, Maharil and R. Moshe of Mintz, leading authorities in fifteenth-century Germany, invokes Maharam’s ruling and, given that she was now married to a Jew it was after the fact (a be-diavad situation, similar to Maharam’s scenario). Therefore, they freed her to marry without the performance of halitzah. Others adopt Maharam’s approach for halitzah cases even le-khathilah (a priori). For example, focusing upon a husband who committed suicide shortly after marriage and, in accordance with halakhot of yibum, the brother-in-law was to marry the childless widow but disappeared and his whereabouts were unknown, Rabbi Rozin contends that this scenario is to be equated to an apostate yavam who refuses to participate in a halitzah ceremony—namely, that the yevamah is free to remarry. As such, Rabbi Rozin rules in this case that the yevamah is free and is not required to undergo halitzah. Similarly, addressing the case of a brother-in-law who became a communist after the marriage of his brother and subsequently, in the wake of the death of his brother refused to perform halitzah for his sister-in-law, a childless widow, Rabbi Feinstein offers a creative understanding of ada’ata dehakhi lo kidhshah nafshah. The wife was cognizant of the halakhot of yibum but thought that there was no duty to marry a nonobservant yavam such as an apostate or communist. Had she known that that an apostate yavam is halakhically a Jew, argues R. Feinstein, she never would have married her now-deceased husband, which would have exposed herself the prospects of an apostate yavam who would refuse to participate in a halitzah. On the basis of this umdana, which relates to a fact that transpired after the marriage (i.e. a brother-in-law who became a communist) as well as upon grounds of being kiddushei ta’ut, R. Feinstein concludes that she is free to marry without the performance of halitzah. ",
+ "Moreover, though Maharam’s judgment focuses upon a halitzah situation, it was applied by others who employed umdana in the context of marriage on a le-khathilah basis. Relying upon Maharam’s theoretical ruling, there are a string of subsequent judgments that employ umdana as a method to void marriages. On the one hand, applying Maharam’s ruling when dealing with an apostate yavam, Rabbis Yoel Sirkes, Avraham Teomim, and Zvi Pesah Frank rely upon the tool of umdana to void the marriage of an apostate husband. Failure to execute bittul kiddushin in these cases would have left the wife an agunah forever. On the other hand, dissenting from Maharam’s opinion and aligning himself with Rashi’s view that an apostate Jew’s kiddushin is valid, R. Dovid Korfu understands that their disagreement as to whether one can free a yevamah from halitzah or not dealt with an apostate yavam who was ready and willing to live with his yevamah. However, should the apostate yavam abandon her and move to another place and the yevamah cannot travel to him, under such conditions an umdana of ada’ata dehakhi lo kidhshah nafshah exists that under such circumstances she never would have married such an individual and consequently there is a basis for the yevamah to be free without undergoing halitzah. Addressing the scenario of a mentally deranged husband who has no prospects for recovery, R. Zvi Pesah Frank contends that this situation should be no different than the case of a wife being unable to live together with her apostate husband. As such, invoking the umdana that a wife would be unwilling to be married to an insane spouse, R. Frank voids the marriage.",
+ "On the other hand, more recently, on May 20, 2014, a Tzfat Rabbinical Court presided upon by Dayan Uriel Lavi apply Maharam’s, Bah’s, Radakh’s, and R. Frank’s decisions—as well as others—by utilizing umdana in the situation of a husband in a vegetative state with no hopes for recovery. To state it differently, the wife would have not have married him, ada’ata dehakhi lo kidhshah nafshah, had she known that this medical event would have happened. Such a scenario, in the beit din’s mind, is to be equated to a case of an apostate yavam whose whereabouts are unknown and a husband who is insane. And despite the fact that some of these judgments deal with halitzah and the psak of R. Soloveitchik was handed down in theory, Rabbi Lavi was comfortable in grounding his case of marriage by citing these authorities. In fact, in his ruling Dayan Lavi explicitly notes the basis for deriving halakhic conclusions from halitzah cases for determining whether a marriage ought to be voided. Yet, despite Dayan Lavi’s readiness to invoke umdana, he explicitly states that in his case that we had a situation of a “safek eishit ish” (a doubt in her personal status as a married woman) and therefore she requires a get le-humra (a get as precautionary measure).",
+ "Explicitly adopting our conceptual distinction between kiddushei ta’ut, which focuses upon the past—namely a husband’s premarital grave flaws, and umdana, which relates to a future event(s) that transpires after the onset of the marriage, R. Moshe Rozin, a twentieth-century Lithuanian and New York authority, expands the scope of the umdana to encompass a different set of fact patterns while focusing upon a halitzah situation. Following in the footsteps of his predecessors, Rabbi Rozin notes that just as in the situation of an apostate a wife would not want to live with him, there similarly exists an umdana that a yevamah would not want to live with a potential yavam who would disappear. The employment of the umdana is grounded in an implied condition that nobody wants to marry such an individual.",
+ "In contradistinction to the above rulings, which were given le-ma’aseh (in practice), invoking the umdana that a wife would never have married her husband had she known that he would contract epilepsy during their marriage, Rabbi Yosef Baer Soloveitchik concludes le-halakhah ve-lo le-ma’aseh (in theory rather than in practice) that she is free from her chains of igun.",
+ "The common denominator underlying the aforementioned cases is that any conduct the husband engaged in during the marriage that will gravely impair and pose a danger to the ongoing matrimonial relationship may serve as a justification to invoke a wife’s umdana of ada’ata dehakhi lo kidshah nafshah. Therefore, in response to our threshold question, whether a wife’s exclamation “had I known that my husband would have been physically abusive to me or would be mentally dysfunctional during our years of marriage I never would have married him” may be recognized as an umdana that may void the marriage, the answer is that it is subject to controversy.",
+ "In short, the brief review of these piskei din demonstrate how Poskim utilize the technique of koah ha-hiddush (innovative halakhic thinking) in general and implementing medameh milta le-milta (analogical inferences) in particular. Commencing with Maharam’s distinction between the Talmudic case of a husband who is afflicted with a skin disease where there exists a tav le-meitav presumption and an apostate husband and/or yavam who a wife never would have married,notwithstanding some decisors who reject the deployment of umdana during the marriage upon discovery of a husband’s flaw, we encounter various authorities who expand ada’ata dehakhi lo kidshah nafshah to encompass multifarious post-marital situations such as where a husband becomes an apostate, a sexually impotent spouse or is mentally dysfunctional.",
+ "3. The canons of the bittul kiddushin decision-making process in non-igun and igun cases",
+ "In the absence of igun, one approach of decision-making in addressing matters of davar she-be-ervah (matters of sexuality) is that an arbiter must be concerned le-khathilah, (a priori) and rule in accordance with the stringent opinions that prohibit bittul kiddushin. In effect that means that, given that there are numerous authorities who explicitly prohibit implementing kiddushei ta’ut or implicitly fail to even mention the employment of umdana as a technique for voiding a marriage, if a husband fails to disclose a latent defect which existed prior to his marriage and subsequent to the creation of the marriage the wife discovers a “mum gadol”, a get mi-safek or a get le-humra as a precautionary stringency is required—no different than the situation of a husband who discovers a premarital grave flaw in his wife and decides to leave the marriage. In effect, in the absence of igun, the position that prohibits voiding a marriage will be controlling and for the wife to remarry she will be required to be given a get by her husband.",
+ "What are the ramifications of being a victim of igun? In the world of she’eilot u-teshuvot, the igun situation of a young woman who desires to remarry has been aptly described by numerous Poskim as a “sha’at ha-dehak” (an emergency situation) and has been construed as a be-diavad situation—as if she has already remarried someone else.",
+ "Consequently, in cases of igun, which may be construed as a be-diavad situation, as noted by both Ashkenazic and Sephardic Poskim, a decisor must factor the opinions of leniency into consideration. Among the various approaches in deciding whether there are grounds for bittul kiddushin or not, one encounters the view of R. Moshe Feinstein. In one of his earliest teshuvot, which was authored in 1934 while still residing in Russia, R. Feinstein outlines his method of halakhic decision-making regarding the resolution of igun matters. Setting out the mandate for an arbiter who possesses the required credentials of a Posek, R. Feinstein notes,",
+ "And what my friend wrote how is it possible to rely upon such halakhic insights . . . in particular given that they are at variance with aharonim (later authorities) and I say have we arrived at the end and boundary to Torah? Heaven forbid that we rule only on the basis of what is written in books and when we encounter questions that are not found in our books we will not render a decision even though we have the ability to rule. Clearly it is prohibited to act in this fashion . . . and one who is capable is obligated to resolve the halakhah to best of his ability via intensive critical investigation of the Talmud and Poskim . . . even though it is a new Halakhah that has not been addressed by the books . . . And even if his decision is sometimes against some halakhic giants who are amongst our latter day authorities . . . we are permitted to overrule these aharonim and sometimes even some early authorities if we have proper proofs and cogent reasons . . . and since we are not overruling renown decisors of the Shulhan Arukh that have been accepted by our communities, . . . similar to other aharonim that issue insights regarding halakhic practice . . . in particular in matters of great need and certainly in a matter of igun . . . we are obligated to rule if it seems to us that a matter must be permitted and we are prohibited to be counted among the humble and allow Jewish women to be unable to remarry . . .",
+ "Laying out his methodology in confronting igun issues, which entails engaging, and critically investigating the rulings of rishonim (early decisors) and aharonim and marshaling cogent arguments to arrive at a decision that will withstand critique to serve as the framework for understanding R. Feinstein’s decisions regarding voiding marriages. Acutely aware of the need to be subservient to the rulings of Shulhan Arukh in outlining his approach to arriving at a decision, his judgments regarding bittul kiddushin are reflective of this concern. Whereas we observed that the silence of Shulhan Arukh regarding voiding marriages based upon a husband’s latent defects has propelled others to forbid freeing a wife without a get, argument ex silentio of this sort is inconclusive in the mind of R. Feinstein. On the contrary, implementing his methodology of decision-making, given that Shulhan Arukh remains silent concerning the legitimacy of bittul kiddushin based upon a discovery of a husband’s preexisting major flaw opens the gateway for permitting him to search for a solution(s) to deal with matters of igun! In reply to those Poskim who contend that the tav le-meitav presumption ought to be applicable and therefore a get ought to be given mi-safek or as a stringent precaution, R. Feinstein follows in Rabbi Elhanan Spektor’s footsteps and argues that the presumption is inapplicable in cases where one coerces a get. Furthermore, giving a get mi-safek is only required when a husband has been deceived since, if he desires, he may divorce her. However, a wife who has been misled by her spouse and cannot be divorced without her husband’s consent clearly will not consent to live with a husband who has a major flaw. For example, many a wife will refuse to live with a husband who is sexually impotent even though he is willing to support her. Moreover, giving a get le-humra, which is a rabbinic decree, is only brought to bear concerning a wife’s defects, which tend to be a more frequent occurrence than a husband’s flaw.",
+ "Employing his methodology, R. Feinstein concludes that if a husband fails to disclose to his wife prior to the marriage that he was impotent or gay, upon the wife’s discovery of the latent flaw, unless she has a rational explanation for remaining married to him, she must immediately leave the marriage. Given that these cases are examples of kiddushei ta’ut, she is free to remarry without receiving a get from her husband.",
+ "Others, either prior to the issuance of R. Feinstein’s rulings or after their appearance, such as Rabbis Suliman Abudi, A. Shapiro, Y. Cohen, Shaul Nathanson, Avraham Yudlovich, Yehoshua Ehrenburg, Ya’akov Rosenthal, Tzvi Pesah Frank, Shalom Messas, Ben Tzion Boaron, and others, invoke the tool of kiddushei ta’ut. Realizing that the strength of the kiddushei ta’ut will vary upon the circumstances of the case and that there is concomitantly an overarching concern regarding the prohibition of hezkat eishit ish (the presumption of being a married woman), some of these same aforementioned Poskim—such as Rabbis Feinstein (in a case of halitzah), Tzvi Pesah Frank (in the case of halitzah), Shalom Messas, and Ben Tzion Boaron—will free a woman without a get when there are grounds for utilizing the technique of kiddushei ta’ut—provided there is a halakhic impropriety in the conduct of the couple’s wedding ceremony or post-marital circumstances that demonstrate ada’ata dehakhi lo kidshah nafshah, i.e. the operation of an umdana. Similarly, there are some authorities, such as Rabbis Shaul Nathanson, Elhanan Spektor, Yitzhak Rappaport, Dovid Friedman of Karlin, Hayyim Ozer Grodzinsky, Shalom Schwadron, Aharon Levine, Avraham Kook, Shlomo Amar, and H. Shlomo Sha’anan, who refrain from utilizing solely the method of kiddushei ta’ut under certain circumstances but have been willing to advance the technique contingent upon the fact that there exists an additional reason to engage in bittul kiddushin. On the other hand, some of the aforementioned authorities will employ kiddushei ta’ut as the sole justification for voiding a marriage. To state the matter differently, whether a decisor chooses to employ the tool of kiddushei ta’ut with or without an accompanying justification will depend either upon the individual circumstances of the case or the need to feel halakhically comfortable in voiding a marriage, which is based upon hezkat eishit ish (a presumptive married woman). Regarding the latter, whether the deployment of kiddushei ta’ut or umdana ought to be the sole method or whether one requires an additional justification for bittul kiddushin will be subject to the determination of each dayan. In short, in contradistinction to some Poskim who may rely upon a minority view under certain prescribed conditions, R. Feinstein and others engage in rigorous analysis of the matter, delve into the views of their predecessors, and utilize methods such as reasoning by analogy in order to void a particular marriage retroactively. This drive to inquire into every aspect of the matter and seek lenient rulings regarding agunah situations is earlier espoused by Rabbis Yosef Kolon, Moshe Alshakar, Betzalel Ashkenazi, Shmuel de Medina, Menahem Krochmal, Dovid ben Shmuel Halevi, and Moshe Sofer, with the proviso that a beit din receives approval for one’s psak din from other Torah scholars.",
+ "The need for contemporary rabbinic arbiters and battei din to seek the approval of others is not only due to the fact that this is a practice amongst some decisors but equally because much of the debate today about what approach ought to be adopted in order to address the matter of igun transcends the formal question of whether a particular method can pass muster in our rabbinic sources.The debate revolves around the question who has the credentials to make such a determination and who gives them that authority.",
+ "In short, despite the fact that a wife is exempt from the mitzvah of procreation, R. Moshe Trani and many others contend that one of the driving forces for finding a resolution for the agunah situation is to preempt the possibility of her engaging in promiscuity. As such, an igun case, regardless of whether we are dealing with a victim of igun who wants to remarry and/or have children, entails “a state of emergency” and therefore requires a Posek’s immediate attention to address this issue. Deciding between the competing arguments regarding the scope of employing various methods to void a marriage will be the sole prerogative of the Posek or a beit din of three. The relative strength of each argument applicable in each situation, its effectiveness, and its plausibility will hopefully be tested within the framework and constraints of future halakhic decisions of our Poskim and piskei din of our battei din. Given the fact that a Posek or beit din who engages in freeing a wife without a get may be viewed as “permitting a matter which is surprising that seems to many as permitting a prohibition”, and in our scenario appears to be freeing a wife without a get, nevertheless—as others note—if the authority provides a reasoned opinion, one can recognize such a ruling. Moreover, as R. Feinstein notes,",
+ "Those who are of the opinion to prohibit are well aware the basis for permitting the matter and they should not be surprised when they hear that there are others who allow it. And if they fail to understand the grounds for permitting they are not morei hora’ah (loosely translated as authorized arbiters in matters of prohibitions –AYW) and one should not be apprehensive of them at all and they must inquire into the matter and they will see the side of permitting the concern and they will no longer be surprised.",
+ "Clearly, the fact that a Posek is dealing with an igun situation does not allow him to initially try to resolve the situation by inquiring whether there are grounds to void the marriage based upon an error or an umdana. Le-khathilah (a priori), should the facts dictate, an Israeli dayan must endeavor to hand down a decision which either results in a judgment of coercing him to give a get or obligating him to give a get that, in the event of noncompliance, may result in the husband being incarcerated or subject to economic sanctions (such as freezing his bank accounts, confiscating his passport, etc.). On the other hand, battei din in the Diaspora are bereft of the authority to coerce a get, so even in the absence of a judgment to obligate a get, some battei din will direct the imposition of communal-social sanctions—such as directing the community to refrain from interacting with a recalcitrant husband and/or denying him synagogue honors (such as an aliyah to the Torah or assuming a leadership position).",
+ "Given that a get has not been forthcoming from the husband, we are dealing with an individual who is acting improperly halakhically. In other words, we are dealing with an individual who knows that nobody can force him to give a get to his wife and therefore he commits a sinful act against his wife. Generally speaking, we know there is a prohibition to litigate one’s monetary matters in a civil court. Nevertheless, Rema, Maharashdam, and more recently the late R. H. Shlomo Sha’anan, a former dayan serving on the Beit Din ha-Rabbani ha-Gadol in Yerushalayim and others rule that in cases where a Jew does not act properly towards another Jew, Halakhah sanctions the aggrieved party to proceed in civil court to file monetary claims, including end-of-marriage issues and claims for emotional stress due to a husband’s abandonment, a wife’s inability to remarry, and/or her subsequent inability to have children—all matters that are unrelated to get recalcitrance. With an award in hand, the agunah may then have leverage and negotiate with her husband the receipt of her get in exchange for waiving her civil award, either entirely or partially.",
+ "In conclusion, there is a well-trodden mesorah that advocates the employment of kiddushei ta’ut and umdana as avenues to deal with a husband’s get recalcitrance and thus rescue a wife from her state of igun. In the event that none of the aforesaid avenues result in a husband giving a get, then be-diavad (post facto) a beit din may scrutinize the facts and determine whether in fact there are grounds to void a marriage based upon ta’ut or umdana.",
+ "As such, this technique ought to be utilized by our contemporary battei din and Poskim. As R. Feinstein observes,",
+ "“And it is a major prohibition to “le-agein” (to leave a wife “in chains”) if one has the ability to address the situation and does not resolve it.”",
+ "In effect, the voiding of a marriage under certain conditions implies that one is not concerned that people will think that “a wife leaves the marriage without a get”."
+ ],
+ "Chapter 6; The efficacy of \"get zikui\"; From conferring an absolute benefit upon a wife (\"zakhin le'adam\") to acting for the absolute benefit from a husband (\"zakhin me'adam\")": [
+ "A wife becomes divorced by receiving what is biblically known as a sefer keritut (lit. a bill of severance) and rabbinically called a get or a get peturin (a divorce) from her husband. By giving the get, the husband disengages from the marital ties and allows her to marry anyone else. Among the basic requirements concerning the execution of a get we find the following: (1) A get is the husband’s possession and a get must be given by the husband be-ratzon (voluntarily). (2) In the text of the get, it must be clear that the husband is severing the marital relationship. (3) The get must be written for the wife, (le-shmah). (4) The husband, or a sofer (a scribe) at the husband’s directive, must write the get and usually is the one the to pay him for his services and the witnesses who will attest to the execution of the get must have heard the husband’s directive to sign the get. (5) The husband or his agent must deliver the get to his wife. (6) The wife must voluntarily accept the get. (6) The wife may choose to appoint an agent to receive the get from her husband.",
+ "1. Conferring an Absolute Benefit upon a Wife (“zakhin le-adam”)",
+ "Zakhin le’adam shelo be-fanov (hereafter: zakhin) allows for a third party to perform an act that affects a person, without his knowledge, as long as that acts comes within the rubric of “a benefit” for him. In other words, in the context of a divorce, it would mean that a beit din may execute a get on behalf of a wife who has not consented to receive it due to the fact that it would be in her benefit. On the one hand, assuming that the first five requirements mentioned in the preceding paragraph were met, from the husband’s perspective the requirements for the execution of the get have been obtained. Yet on the other hand, conferring a get upon her without her consent and without her personally receiving it or authorizing a shaliach le-kabalah (an agent for delivery) is problematic.",
+ "A husband can neither appoint for his a wife a shaliach le-kabalah to receive a get on her behalf nor can a third party appoint an agent due to the fact that a divorce entails a hov (a disadvantage) to the wife. Upon divorce, a wife loses her spousal support and therefore it is deemed a hov. As the Talmud states, ein havin le-adam she-lo be-fanov, one cannot act to someone’s detriment in his absence, i.e. without his consent.",
+ "However, what happens if a wife expresses an interest (gilui da’at) in becoming divorced (without appointing a shaliah le-kabalah)? According to numerous Poskim, an arbiter or a beit din may not direct the execution of a get zikui because, by its very essence, divorce is a hov and there remains a fear that she may have changed her mind in the interim and wants to remain married. Maharshal, Penei Yehoshua, and others offer the following rationale for a wife’s desire to remain married: tav le-meitav tan do mi-le-meitav armalu, it is better to live as two than to remain in widowhood. Absent a wife’s appointment of a delivery, agent even if there exists marital discord or the husband is afflicted with a severe skin disease, one presumes that she wants to remain married either due to the need to have a companion or because she would forfeit her entitlement to mezonot (spousal support) upon divorce.",
+ "That being said, there are various instances within the context of marriage that are recognized by some Poskim where it would be a zekhut gemurah or berurah (hereafter: a zekhut)—an absolute benefit—for us to mandate a get zikui on behalf of a wife. For example, if a wife is an apostate, a husband can confer the benefit of being divorced to her via a third party. Under these circumstances the divorce is viewed as a benefit because there is a presumption that she will engage in illicit affairs and it is better for her if such conduct is committed by her as a single woman rather than as a married one. Or if a wife is prohibited to continue living with her husband due to her engagement in an illicit affair in accordance with Rashi, Beit Yosef, Rema, and Arukh ha-Shulhan, R. Yitzhak Weiss, R. Shalom Messas, and others rule that a husband may confer upon her the benefit of a get via a third party because it is an absolute benefit that she should leave this marriage. The halakhic-moral calculus here is that it is preferable that she engage in her improper conduct as a single woman rather than as a married woman. Consequently, once the husband gives the get to the third party who is construed as the delivery agent, he is divorced.",
+ "Notwithstanding that there are numerous Poskim who contend that such a get in the cases of the adulterous wife and apostate wife is invalid in face of the wife’s protestations, as we have shown there are Poskim who argue that the institution of zekhiyah trumps the subjective wishes of the beneficiary—namely, the apostate or the adulterous wife—provided that the benefit to the wife is absolute, an unmitigated benefit. Conferring a zekhut despite a wife’s protestations ought to be no different than various non-marital instances such as emancipating a slave from his master via implementing a get zikui of emancipation despite the slave’s objections, or selling a Jew’s hametz (even a Jew who is not Torah-observant) on the eve of Pesah without his prior authorization. In the event that the hametz is not sold to a non-Jew, the owner of the hametz is proscribed from deriving benefit from it and its value will be lost. Another example of zakhin le-adam she-lo be-fanov focuses upon a fifteenth-century Germanic minhag (custom), which was approved by R. Yisrael Isserelin and subsequently by others, that a third party may advance a claim in a beit din proceeding on behalf of a plaintiff even though he was not authorized by the plaintiff—provided that it is crystal clear that failure to submit a claim will generate irreparable damage to the plaintiff. Similarly, one may allocate tithes from the produce (hafrashat terumot u-ma’asrot) without prior authorization, provided that the allocation does not entail any loss of produce beyond what is earmarked for the allocation.",
+ "In addition to the aforementioned cases of an apostate wife and adulterous wife there are other situations of invoking zakhin in family matters. For example, a husband may confer a get for the benefit of his wife lest he die and be childless and she is obligated to marry her brother-in-law whom she does not desire. Clearly, under these conditions, zikui get to this wife, lest the brother-in-law refuse to release from the marriage via the performance of halitzah, is an absolute benefit. In our contemporary context, let us examine a couple that is civilly divorced, physically separated from each other, and the wife engages in the commission of issurim (prohibitions) and refuses to receive a get from her husband. Given that they are civilly divorced, R. Feinstein and R. Tzvi Makovsky argue that the tav le-meitav tan do mi-le-meitav armalu is rebutted. Moreover, there is a concern that she may become promiscuous and she may desire to remarry; under such conditions we are dealing with a divorce that is a zekhut. Consequently, we may execute a get zikui and the husband and wife may remarry. All of the aforementioned multifarious situations are viewed as examples of an absolute benefit to the wife and therefore the execution of a get zikui is in place. In all of these cases, once the get is in the husband’s possession she is divorced and the mezakeh (the one who conferred the benefit) is the agent for delivery. In other words, though in a conventional situation the wife is empowered to appoint the agent, here, within the context of operating with zakhin, the mezakeh in effect becomes the agent!",
+ "Seemingly all of these varied rulings undermine the Talmudic ruling that any third party who receives a get on behalf of the wife must have her prior authorization to be a delivery agent, which is an uncontested requirement in terms of normative halakhah. Absent such empowerment, any subsequent execution of the get ought to be null and void if she continues to refuse to be divorced. As suggested by R. Moshe Feinstein, implicit in this argumentation is that the concept of zakhin le-adam she-lo be-fanov is grounded in the notion of agency. To state it differently, the individual who bestows the benefit functions as the agent even though he hasn’t been appointed by the beneficiary. Given that the establishment of agency by appointment is a rudimentary requirement, how can one waive this requirement? In the absence of a formal appointment, since this action will benefit another party, we recognize a halakhic fiction—we presume that had the beneficiary known about the benefit that would accrue from the action, he would have appointed the individual. In effect, numerous authorities contend that we are dealing here with a situation of constructive agency. Consequently, should the wife protest the divorce, she would still be married. Subscribing to this approach that zakhin is grounded in agency halakhah, it is readily understandable why one is proscribed from conferring the benefit of a get upon a wife who is a shoteh (mentally dysfunctional) in accordance to halakhah and hasn’t authorized an agent to receive her get.",
+ "On the other hand, R. Feinstein argues that those who are of the opinion that zakhin le-adam she-lo be-fanov is operative in situations of an apostate or adulterous wife contend that the zakhin principle is not connected to agency. Others understand that the halakhic system (characterized as a gezerat ha-katuv) imputes power to the individual (yad-loosely translated as an extended hand) conferring the benefit. Alternatively, if an individual is empowered to derive benefit for himself, he can equally accomplish the same action for another rather than be grounded in the institution of agency. Finally, some contend that Halakhah recognizes agency established by harsha’ah (authorization) as well as agency that can be created without prior permission. Zakhin le-adam she-lo be-fanov is to be subsumed under the rubric of agency without authorization. Consequently, the net result of adopting this approach of zakhin that is not akin to agency is that a benefit may be conferred without the consent of the beneficiary. In effect, invoking zakhin would be effective in instances of an apostate or adulterous wife or upon issuance of a civil divorce involving a woman who is non-Torah observant, even should she lodge objections. Consequently, invoking zakhin, one can readily understand why one may view divorce as a benefit when resulting in the divorce of mentally dysfunctional wife whose husband had remarried despite her incapability of articulating her personal wishes.",
+ "The ramifications of employing zakhin within the context of divorce cases does not merely center upon how one conceptually defines the institution of zakhin. How one views zakhin is inexorably linked with defining the nature of a wife’s consent to divorce. Does one require the wife’s actual consent or can one impute her consent? If we subscribe to the latter position, what are the criteria for imputing her consent? Regarding the scenario of the apostate wife who refuses to accept a get, those who contend that zakhin is inapplicable implicitly are advocating that her subjective wishes are determinative. On the other hand, those who invoke, in R. Moshe Bula’s nomenclature, zekhut ha-nefesh (her spiritual benefit) argue that zakhin is operative to receive a get in order to avoid engaging in licentious behavior, even trumping the wife’s protestations. In R. Bula’s words,",
+ "In conferring benefit by another, the mezakeh (the party conferring the benefit) for her stands in her place to receive the get . . . and there is no need for the one who is the beneficiary to perform any act knowingly.",
+ "Furthermore, the parameters of zekhut ha-nefesh are dictated by the norms of Halakhah; it is her “real will” to comply with Halakhah and therefore a third party may receive the get on her behalf. In fact, R. Bula seemingly notes that Rashba, who endorses zakhin even if the wife “stands and shouts”, identifies with this understanding of zekhut entailing a divorce. Similarly, those who invoke zakhin concerning an adulterous wife who objects to receiving a get explicitly espouse the notion that here again we are dealing with a zekhut ha-nefesh (a spiritual benefit) to receive a get rather than remain in a marriage marked by infidelity. On the other hand, those who contend that the wife’s objections remain paramount will reject the applicability of zakhin and understand the zekhut of receiving a get in subjective terms rather than in objective terms, which would be defined by halakhic criteria.",
+ "In sum, whether one can confer the benefit of divorce upon a recalcitrant wife focuses upon the applicability of the institution of zakhin, the rational underlying its workings, and the nature of the zekhut.",
+ "2. Acting for the Absolute Benefit of a Husband (“zakhin mei-adam”)",
+ "As we have shown, the notion of zakhin le-adam sh-elo be-fanov entails conferring a benefit upon one individual by another. For example, if a debtor has only one creditor, then a friend of the creditor may seize the property on behalf of the creditor. If someone wants to give money or chattel to another and the beneficiary is absent, he will acquire it on behalf of another via the execution of a kinyan (a symbolic act of accepting the gift). Or, if a husband desires to give his wife a get but she refuses, we explained that it may be a benefit to her to become divorced under certain conditions and the get is executed in her absence and without her prior authorization. The common denominator of these cases is that an individual—a wife, a creditor, or a gift recipient—has benefited unknowingly from the action of another. In these instances, we invoke the concept of zakhin le-adam she-lo be-fanov.",
+ "The question that emerges is whether zakhin applies when we take away something from an individual. For example, if someone neglected to sell his hametz on the eve of Pesah and the hametz potentially would lose its value, can a friend sell it prior to Pesah on behalf of his friend? Or should a husband refuse to give a get to his wife, may we say it is a zekhut for him to give the get and therefore a third party ought to give it to his wife despite his protestations? Since the execution of the get entails the husband’s decision to voluntarily give it and personally write the get or delegate it to a scribe, how can a third party initiate the process without prior the husband’s prior consent and authorization? In both of these scenarios, the person who owns the hametz and the husband who refuses to give a get will be deprived of something or someone, respectively, due to the action of another. To state it differently, we know there is a rule of zakhin le-adam she-lo be-fanov, can one equally engage in situations involving zakhin mei-adam?",
+ "Admittedly, throughout various passages of the Talmud, commentaries, teshuvot, and sifrei psak (restatements of Halakhah) such as Shulhan Arukh, one finds zakhin being applied in circumstances where a benefit is being conferred rather being taken away from an individual. However, there are various instances which we find, both in the Talmud and Poskim, a recognition that zakhin is equally operative in situations where one takes something from an individual.",
+ "A passage in Tractate Pesahim informs us,",
+ "There was an incident with a man who deposited for safekeeping a bag full of hametz with . . . But when the eve of Pesah arrived, mice penetrated it and the hametz was leaking out. He approached a rabbi and asked what he should do. At the first hour, he told him “wait”, second hour he told him “wait” . . . at the fifth hour, he told him “proceed to the market and sell it . . . to a non-Jew”",
+ "Since the fifth hour was the last hour that the owner of the hametz could benefit from his foodstuffs, the rabbi instructed the man to sell it to a non-Jew before Pesah because with the arrival of Pesah the hametz would be prohibited to the owner and thus the owner would lose the hametz.",
+ "A passage in Tractate Ketuvot teaches us,",
+ "A prospective boy of minority age, one can immerse him in a mikvah with the consent of beit din . . . it is a benefit for him and zakhin le-adam she-lo be-fanov.",
+ "Here, the minor did not derive any benefit from any object.",
+ "Based upon the foregoing as well as additional sources, notwithstanding Ketzot ha-Hoshen,Mirkevet ha-Mishneh and a few other authorities, the majority of Poskim including, but not limited to, Tosafot, Rabbis Moshe ben Nahman, Nissim of Gerondi, Yisrael Isserelin, Yosef Karo, Moshe Issereles, Dovid ben Shmuel ha-Levi, Avraham Gumbiner, Moshe Sofer, Yitzhak Elhanan Spektor, Avraham Tzvi Eisenstadt, Meir Eisenstadt, Hayyim Ozer Grodzensky, Avraham Karelitz, Shimon Shkop, Shalom Schwadron, Avraham Kook, Eliezer Shach, Shlomo Z. Urbach, Moshe Feinstein, Osher Weiss, and Uriel Lavi argue that the concept of zakhin encompasses cases of Orah Hayyim, Yoreh Deah, Even ha-Ezer, and Hoshen Mishpat matters where one takes away something from someone.",
+ "The threshold question is whether there is a basis for invoking zakhin mei-adam in the context of divorce cases. Seemingly, the question hinges directly upon the issue whether zakhin encompasses a divorce situation, which entails zakhin mei-adam (taking something from the husband), namely the benefits of being married? In effect, may one take a get from a husband without his consent and give it to the wife? However, there are various threshold questions that must be addressed prior to dwelling on this matter. Zakhin, on the one hand, entails the world of kinyanim such as the halakhot of gifts, loans, and bailment—which are matters of mamon (financial matters), whereas marriage and divorce entails a matter of issura (prohibition).",
+ "The betrothal (kiddushin) relationship is a consensual agreement, albeit a special agreement that establishes a personal status—namely that of a mekudeshet (a woman designated for a particular man and prohibited to all others). The establishment of this status known as ishut renders both spouses subject to various prohibitions—e.g. sexual relations with various relatives becomes prohibited.",
+ "From the perspective of the husband there is a halakhic duty to engage in conjugal relations. In addition, spouses are mutually bound to each other (in the form of she’ibud—servitude) in conjugal relations as a consequence of marriage. As R. Shlomo ben Aderet (known by the acronym: Rashba) notes,",
+ "“They are mutually in servitude and this is the reason that they decided to marry.”",
+ "Arguing that a husband’s she’ibud derives from the kinyan of sexual relations, R. Avraham Min Hahar points out that this is based upon the biblical verse “If any man takes a wife”. Obviously, as is noted, a husband’s servitude is not to be construed as enslavement. Clearly, the scope of the she’ibud is limited to conjugal relations and even within the context of engaging in sexual relations, a husband is proscribed from engaging in spousal abuse and rape. Emerging from the establishment of marriage in general, and the husband’s she’ibud in particular, there are certain monetary duties that are incumbent upon him as a husband, such as spousal maintenance. In short, despite the fact that the institution of matrimony is multi-dimensional with elements consisting of mamon as well as issur, nonetheless a husband is clearly not acquiring a wife through matrimony. Consequently, even those Poskim who claim that zakhin mei-adam is ineffective in applying the mechanism of zekhiya in regard to financial matters ought to agree that by marriage it is effective, since we are creating marital ties based upon ishut rather than by acquisition. ",
+ "Employing R. Klatzkin’s terminology, the zakhin rule has the capacity to be mafkia shei’budo (annul a husband’s servitude)? As Dayan Uriel Lavi demonstrates via a detailed and meticulous citation of excerpts of teshuvot, under certain conditions, Noda be-Yehudah, Hatam Sofer, Sefer Petach ha-Bayit, Maharash Engel, Rabbi Yitzhak Elhanan Spektor, Ahiezer, Erech Shai, Har Zvi, R. Elyashiv, Tzitz Eliezer, and others endorse the applicability of zakhin where there exists a zekhut (an absolute benefit) or a zekhut be-atzmuto (a benefit in its essence) for a husband to become divorced. Implicit in this position endorsed by many Poskim, despite the fact that marriage is multi-dimensional with elements consisting of mamon as well as issur, zakhin is operative since we are creating marital ties based upon ishut rather than by acquisition.",
+ "To contend that zakhin is effective without a husband’s mandate to give a get is innovative. Seemingly, employing a get zikui for the husband’s benefit will run afoul of the halakhic procedural stricture against the husband’s absence of involvement in the seder ha-get (the executing of the get). In pursuance to Shulhan Arukh’s ruling, a get must be written either by the husband le-shemah (specifically for his wife) or he must designate a scribe and two witnesses to write the get and confirm the divorce respectively—and if it is written without his prior authorization, the get is null and void. Consequently, even if the wife wrote the get le-shemah without the husband’s directive to write it, or the scribe wrote it le-shemah without the husband’s instructions, the get is a nullity. Relying upon Ramban’s view, Shulhan Arukh rules that neither the scribe is empowered to write nor witnesses are authorized to sign until the husband personally informs then to write and sign. And when the husband authorizes them to execute the get, they are not permitted to delegate the writing and signing to others.",
+ "It therefore is unsurprising to find that, in part due to the requirement of needing a husband’s consent as well the requirement of le-shemah by the husband, Mirkevet ha-Mishnah is propelled to negate the possibility of zakhin mei-adam. Others such as Ohr Zarua, Ketzot ha-Hoshen, and Emek Yehoshua agree with his conclusion.",
+ "Furthermore, it is unsurprising that one of the primary reasons that contemporary decisors such as R. Moshe Farbstein, R. Yitzhak Yosef and others find a get zikui unacceptable is due to noncompliance with the le-shemah requirement, namely the absence of a husband’s instructions to both the scribe and the witnesses to write and sign the get, respectively. In the absence of a husband’s mandate to write a get, even if the scribe wrote the get specifically for the wife, the get would be invalid.",
+ "In light of Ramban’s position, we do encounter grounds for validating a get zikui in a situation where husband did not provide instructions to write a get. Upon a review of the aforementioned Ramban’s position, we encounter a seemingly self-contradiction in his words. On one hand, should there be a husband’s letter directing the scribe to write a get, he would be in compliance with the requirement of le-shemah. On the other hand, Ramban contends that the scribe must have received explicit verbal instructions from the husband to prepare a get. Resolving this seeming contradiction, R. Feinstein argues that Ramban’s position is that it must be crystal clear that the husband wants to initiate the process of divorce, i.e. le-shemah. As we know, the presumption is that a wife is lav le-gerushin omedet (that she is not destined to be divorced) and therefore there is a requirement of le-shemah. Consequently, if the husband communicates verbal instructions to the scribe or writes a letter that he wants the scribe to draft a get, his intentions are clear and the le-shemah condition is obtained. To state it differently, Ramban is concerned with verifiability that in fact the husband desires to initiate a divorce process rather than the husband must initiate the process of mandating the writing of the get.",
+ "Based upon R. Feinstein’s understanding of Ramban, which subsequently receives Shulhan Arukh’s endorsement, in the context of zakhin, where the husband is absent, the scribe is receiving a directive from the beit din to draft the bill of divorce and he is well aware that this procedure is being implemented to benefit the husband. In other words, without a husband’s directive to initiate the process, the get is a hov. However, if there is an absolute unmitigated benefit, divorce is no longer a hov. As such, despite the absence of the husband’s instructions, based upon R. Feinstein’s elucidation of Ramban’s view the requirement of le-shemah is in effect being verified via the rule of zakhin. Following in the footsteps of R. Akiva Eiger and Hazon Ish, in the words of R. Herzog,",
+ "Since it is a clear benefit for her, the get will not be a nullity due to the fact that the husband did not instruct . . . it is as if the husband is in front of us and commands . . .",
+ "Following in the footsteps of R. Hayyim Ozer and Hazon Ish, in a subsequent teshuvah rules R. Yitzhak Herzog le’halakhah (in theory) to employ zakhin rather than le’ma’aseh (in practice),",
+ "If we assume that there is exists the possibility that there is a get zikui for the husband, the get will not be nullified because the husband did not directly command . . . it is as if the husband stands in front of us and commands.",
+ "Numerous Poskim arrive at the same conclusion contending that either zakhin preempts the need for a husband’s instructions to the scribe and the witnesses or the requirement of le-shemah is in effect being accomplished through her status of “le-gerushin omedet” (she is destined for divorce).",
+ "As we discussed regarding a get zikui for a wife, according to certain authorities zakhin will be effective once the get is in the husband’s possession and the mezakeh (the one who confers the benefit) is the agent for delivery. The question is whether a gilui da’at must have been articulated by the husband prior to executing a get zikui. Generally, in matters of kiddushin (betrothal) for one to invoke zakhin, there must be a gilui da’at from the beneficiary that he desires the conferral of benefit. Does this requirement extend to matters of divorce? For example, if a husband is insistent that he appoint a shaliach le-holakhah (an agent who will deliver his get to his wife) or actually appointed a shaliach, can a third party invoke zakhin and give a get to the wife? R. Yitzhak Elhanan Spektor, R. Eliyahu Klatzkin, and R. Aharon Walkin argue that under such circumstances, one cannot execute a divorce via the avenue of a get zikui. Similarly, R. Klatzkin, Hatam Sofer, Avnei Nezer, Gaon of Krotosyn, Havazelet ha-Sharon, Zekan Aharon, R. Shmuel Engel, Maharsham, Beit Avi, and others contend that one requires a husband’s gilui da’at prior to executing a get zikui. On the other hand, Rabbis Yosef, Elyashiv and Tzvi Pesah Frank claim that one can benefit a husband with a get even if the party conferring the benefit was not appointed as “the agent for delivery”. Similarly, Rabbis Y. Weinberg Karelitz, Feinstein and Herzog conclude that zakhin is effective even without a husband’s gilui da’at that he desires to deliver a get to his wife, provided that there is an absolute benefit for the husband. Moreover, when dealing with a husband who is a shoteh (mentally dysfunctional in accordance with halakhic criteria), a husband’s gilui da’at to give a get prior to becoming a shoteh is irrelevant in establishing the husband’s benefit. Therefore, the Poskim who invoke zakhin regarding a husband who is a shoteh implicitly are agreeing with the view that a gilui da’at is not required when there is an absolute benefit for the husband. Finally, though R. Yisrael Minzberg sharply attacks those authorities who sanction a get zikui when it is in the husband’s benefit by showing a few places that a husband expressed an interest in giving a get, yet he fails to provide any proof that such an option would be ineffective in the presence of an absolute benefit. In fact, R. Minzberg readily admits,",
+ "ºIf it is a zekhut gamurah (an absolute benefit), a beit din may appoint an agent without his knowledge.",
+ "In short, our understanding of zakhin regarding the execution of a get zikui from a husband is identical to our perception of zakhin concerning benefiting a get to a wife. As we explained, despite the fact that the wife doesn’t appoint an agent for delivery for the get, nonetheless due to zakhin, which imputes power to the mezakeh, the net result is that the husband serves as the agent for delivery. On the other hand, generally the husband or his appointed agent gives the get to his wife. Here, though the mezakeh is not the husband’s agent to give the get, nevertheless a beit din is empowered to give the get to his wife without a husband’s knowledge.",
+ "Based upon the foregoing, we have various authorities that view zakhin mei-adam under the rubric of zakhin le-adam, that the le-shemah requirement and the requisite need of the husband or his agent to give a get may be actualized via the medium of zakhin and that a gilui da’at is not necessarily required by all Poskim prior to invoking zakhin.",
+ "The remaining question is whether zakhin is effective in divorce matters, similar to commercial matters, where the benefit is conferred despite the protestations of the beneficiary. Does one require the husband’s actual consent prior to invoking zakhin? Will a husband’s refusal to give a get undercut invoking zakhin? Seemingly, in accordance with R. Yosef B. Soloveitchik and others, since there is a special Halakhah that one requires ratzon regarding matters of divorce, therefore no get can be forthcoming in the absence of a husband’s verbal consent. At first glance, this is the impression one receives from reading the oft-cited formulation of Rambam’s psak. In Mishnah Torah, he explains,",
+ "When a man whom Halakhah mandates to be compelled to divorce his wife does not desire to divorce her, the beit din ought to have beaten until he consents . . . With regard to this person who (outwardly) refuses to divorce his wife—he wants to be part of the Jewish people, and he desires to perform all the mitzvot and avoid all the transgressions; it is only his evil inclination that presses him. Therefore when he is beaten until his evil inclination has been weakened and he says “rotzeh ani”; he consents (to the get) and he is considered to have performed the divorce willfully",
+ "On the basis of his ruling, R. David ha-Kohen of Corfu argues that a husband’s wishes are controlling.",
+ "However, as Rabbis Moshe Bula and Uriel Lavi aptly observe, the context of Rambam’s ruling is addressing an instance of kefiyah (coercion). Rambam is offering his explanation how one can reconcile coercing a husband to give a get with the notion that he must give it voluntarily and attain the result of rotzeh ani. A narrow reading of Rambam’s view of the requirement of rotzeh ani is limited to a case of physical coercion. However, others view the requirement as implicitly encompassing verbal persuasion. Moreover, since Rambam introduces the requirement only in a case of coercion, one can extrapolate that should the husband volunteer to give a get, it is sufficient to execute a get based upon the husband’s directive without the need for the husband to articulate the words “rotzeh ani”. Furthermore, Tur, Shulhan Arukh and others either fail to mention such a requirement or do not require a verbal statement of consent. In fact, some argue that there is no such requirement and some contend be-diavad (ex post facto), if during the execution of the get, the husband states “here is your get” without mentioning rotzeh ani, the get is kosher.",
+ "Finally, as we have shown, the authorities deal with the issues of whether zakhin mei-adam is to be viewed as equivalent to zakhin le-adam and whether a husband’s mandate to give a get is required or gilui da’at is sufficient prior to invoking zakhin—and as well as defining the nature of the zekhut? To the best of our knowledge, those authorities who validate a get zikui for a husband never entertained the possibility that the requirement of rotzeh ani would undermine the implementing of zakhin. There has been total silence amongst these Poskim regarding this issue because once one recognizes that zakhin will be operative in the divorce situation, one focuses upon a husband’s imputed consent rather than his actual consent. To state it differently, under certain conditions, zakhin trumps the subjective wishes of the husband. Even if he “stands and screams” and refuses to give a get, zakhin allows us to attribute consent to him in certain circumstances based on the notion that there exists an absolute benefit to him, a zekhut to give a get. Just as we found that by get zikui of a wife the mezakeh stands in the place of the wife to receive the get, here when dealing with get zikui of a husband, the mezakeh such as a beit din stands in the place of the husband to give the get. And as we explained, according to some Poskim there exists no requirement to state rotzeh ani.",
+ "How ought the zehut be defined? As we mentioned earlier, there is a debate whether one can invoke zakhin for a wife based upon zekhut hanefesh (spiritual benefit), which is defined by halakhic norms. R. Eliyahu Mizrachi of sixteenth-century Constantinople, Turkey addresses the case of a husband who was apprehensive that he would soon die and his wife would be obligated to engage in yibum (levirate marriage) with his apostate brother. To forestall this possibility, he wanted to divorce his wife prior to his demise. Since his wife was unavailable at that time, the husband appointed a third party to confer the benefit of a get upon her. Given that it is a zekhut that she would not marry her brother-in-law who is an apostate, R. Mizrachi opines that she is divorced via zakhin. And even if she desired to marry him via yibum, she would remain divorced despite her objections because it is in her benefit to be “saved from sin”. A similar definition is offered in contemporary times by R. Z. Nehemiah Goldberg, who offers an example of the husband’s zekhut is if he is obligated to pay spousal support and engage in conjugal relations and unable to fulfill his halakhic marital duties due to the fact that he is in a vegetative state. . To state it differently, benefit is to be defined by halakhic criteria. Given that Halakhah looks askance at an individual engaging in sin, it is therefore a benefit for her to be divorced. During the same century, R. Dovid ha-Kohen of Corfu contends that zekhut is defined by the wife’s subjective wishes. So if, in fact, the wife wants to remain married to her apostate brother-in-law, invoking zakhin would be ineffective. Subsequently some aharonim (later authorities) endorse R. Dovid ha-Kohain’s position even regarding a modern day agunah where the husband refuses to give a get to his wife.",
+ "We encountered numerous Poskim who implicitly subscribe to Rabbi Mizrachi’s view by sanctioning the implementation of zakhin concerning an apostate and an adulterous wife due to the fact that zekhut hanefesh mandates that such individuals be “saved from sin” and they therefore ought to be divorced from their spouses. Similarly, regarding executing a get zikui for a husband, there are Poskim who permit a get zikui in order to prevent the husband’s transgression of polygamy even in the absence of a gilui da’at that he intends to give a get. And in fact, in the situation of a mentally dysfunctional wife, there were cases where Poskim permitted a get zikui for the wife, which in effect released him from the prohibition of bigamy and allowed him to remarry even though there was no gilui da’at that she was ready to receive the get. And more recently, in dealing with a husband in a permanent vegetative state, Dayan Lavi adopts this mesorah that addresses a mentally dysfunctional wife. For these Poskim, as in other realms of Halakhah, a spiritual benefit is sufficient to be a legitimate basis for zakhin le-adam she-lo be-fanov in a divorce situation.",
+ "The issue remains whether one can argue that a spiritual benefit is being conferred via get zikui upon a husband who is withholding a get? Clearly, as we have presented and as we will show in our section below entitled “final afterthoughts”, to date there is no mesorah that affords such relief to the modern day agunah. The outstanding question is whether one can suggest persuasive argumentation which will serve in the future for Poskim as a basis for addressing the plight of the modern day agunah via the invoking of get zikui.",
+ "Final Afterthoughts",
+ "Our foregoing presentation of the propriety of executing a get zikui for a husband rests upon the following foundations:",
+ "1. Zakhin mei-adam is operative in accordance with the rule of zakhin.",
+ "2",
+ "The mezakeh, namely a beit din, will communicate to the scribe that the husband ought to be divorced from his wife and the beit din will inform the witnesses that they ought to sign the get. As such, the le-shemah requirement will be fulfilled.",
+ "3. The mezakeh is empowered to give the get to the wife.",
+ "4",
+ "Zakhin will be effective even without the husband’s prior gilui da’at that he desires to be divorced and despite the husband’s objections.",
+ "5",
+ "One may employ zakhin provided that there is a zekhut gamur to the husband that he ought to be divorced.",
+ "6",
+ "The zekhut may be defined by halakhic criteria, namely an absolute spiritual benefit.",
+ "Despite the fact that every foundation presented above was and continues to this very day to be fraught with halakhic controversy, we have shown that that there are authorities that would execute a get zikui for a husband under various circumstances. A review of the above six foundations shows that zakhin is a halakhic fiction that, if certain conditions are obtained, in effect empowers the mezakeh to accomplish whatever Halakhah mandates as the husband’s responsibility vis-à-vis his involvement in the get process!",
+ "To state it differently, whether one sanctions the execution of a get zikui for a husband is predicated upon whether one is willing to recognize the halakhic fiction of zakhin. Whether zakhin is a subset of the halakhot of agency (and therefore such an execution is prohibited) or whether it is unconnected to agency (and consequently the execution is permitted) hinges upon whether zakhin will be viewed as a halakhic fiction or not. Similarly, whether or not zakhin mei-adam is to be validated based upon zakhin centers on the question of whether such a fiction will be an enabler to facilitate the application of Halakhah to halakhic questions and circumstances of igun such as divorce matters.",
+ "Once this mesorah endorses that zakhin mei-adam falls under zakhin, we have demonstrated how adopting such a position implicitly or explicitly fulfills the basic requirements concerning the execution of a get, namely: (1) A get must be given by the husband “be-ratzon” (with his prior consent). (2) In the text of the get, it must be clear that the husband is severing the marital relationship. (3) The get must be written for the wife, (“le-shemah”). (4) The husband or a sofer (a scribe) at the husband’s directive must write the get. And the witnesses who will attest to the execution of the get must have heard the husband’s directive to sign the get. (“le-shemah”) (5) The husband or his agent must deliver the get to his wife. In short, despite the absence of a husband’s designation of a scribe and witnesses as well as his depositing the get with his wife, zakhin intrinsically has the capacity by dint of it being a halakhic fiction to be effective as if the husband left instructions for giving a get, imparting his wishes to the scribe, designating witnesses and personally or by agent delivering the get to his wife.",
+ "The outstanding question is whether one can execute a get zikui for a husband who refuses to give a get to his wife, similar to employing zakhin mei-adam in commercial matters in a case where the beneficiary “stands and screams”. Assuming that all end-of-marriage issues—including, but not limited to, the division of marital assets, parenting arrangements, and child support—have been resolved either by mutual agreement between the parties, via mediation, beit din, civil arbitration, or civil litigation and the husband refuses to give a get to his wife, may a beit din execute a get zikui on the basis of zakhin? Will the execution of a get zikui serve as a solution to the modern-day agunah problem? As we have shown, zakhin mei-adam is effective regarding divorce situations that entail a zekhut. In the wake of the husband’s get recalcitrance, the question is whether one can adopt the view that it is a zekhut for the husband to execute a get.",
+ "This issue must be viewed in two factual contexts: Both the husband and wife appeared in beit din and the panel ruled that the husband is obligated to give a get to his wife. Despite the judgment, the husband is adamant in refusing to give a get. Under such circumstances, can the beit din execute a get zikui?",
+ "As we discussed, in accordance with certain Poskim, a zekhut may be identified as zekhut hanefesh prior to sanctioning the use of a get zikui. Concerning executing a get zikui for a wife, we found that some authorities allowed this practice in situations where laxity in morals such as a promiscuous or apostate wife was recalcitrant in receiving her get. Similarly, we encountered that there are Poskim who will employ a get zikui in a situation where a husband remarried without giving a get to his first wife and in effect was in violation of the halakhot against polygamy. The common denominator of these cases is that the need to confer a benefit, either based upon zakhin or zakhin mei-adam, would be considered a zekhut lest certain prohibitions would be transgressed such as adultery or polygamy.",
+ "Yet, zakhin is not limited to avoiding the engagement in prohibitions. In fact, R. Eliyahu Mizrachi’s precedent-setting opinion grounds the zekhut hanefesh in the above cited Rambam’s ruling,",
+ "When a man whom Halakhah mandates to be compelled to divorce his wife does not desire to divorce her, the beit din ought to have beaten until he consents . . . With regard to this person who (outwardly) refuses to divorce his wife he wants to be part of the Jewish people, and he desires to perform all of the mitzvot and avoid all of the transgressions; it is only his evil inclination that presses him. Therefore, when he is beaten until his evil inclination has been weakened and he says “rotzeh ani”, he consents (to the get) and he is considered to have performed the divorce willfully.",
+ "The husband’s imputed consent to give his wife a get via the meting out of coercion is rooted in his readiness to adhere to his “real will”, namely a steadfast and unswerving readiness to comply with the norms of Halakhah its positive as well as negative commandments. As such, zekhut hanefesh is not limited to the ambit of avoiding negative transgressions but equally encompasses the realm of positive commandments.",
+ "In our hypothetical scenario, a beit din contends that the husband is obligated to give a get. By dint of the fact that both parties have accepted the jurisdiction of the beit din by signing on a shtar borerut, (an arbitration agreement) there emerges the mitzva li-shmoah le-divrei hakhamim; the parties are duty-bound to follow the teachings of the Torah scholars. In fact, some contemporary authorities emphasize the paramount importance of this duty within the context of a divorce proceeding. Consequently, R. Ovadia Hadaya argues that should a husband be recalcitrant in regard to the giving of the get, he is violating the mitzvah of lo tasur (you shall not deviate from the word they shall tell you). Given that his “real will” is to abide by the mitzvot in general and the rulings of rabbinic authorities regarding giving a get in particular, we therefore view it as a zekhut (an unmitigated benefit) for the husband’s nefesh to execute a get zikui.",
+ "The outstanding question is whether the zekhut hanefesh of complying with a beit din’s ruling and a husband’s duty to refrain from being me’agein his wife by giving her a get will trump the subjective wishes of a husband who “stands and screams”, refusing to give a get to his wife. To the best of our knowledge, aharonim (later authorities) who recognize the institution of zakhin concerning divorce and the concept of zekhut hanefesh do not address our question",
+ "Alternatively, in the husband’s absence, should an arbiter or a beit din address the matter of a get at the behest of a wife’s plea and conclude that the husband is obligated to deliver a get to his wife, here again such a judgment is a zekhut for the husband and therefore serves as grounds to execute a get zikui. For example, dealing with a husband who did not return from war and was presumed to be dead, R. Eliyahu Klatzkin contends that he has relinquished his right to direct his wife to fulfill her marital duties and therefore may be compelled to give a get. By dint of R. Klatzkin’s ruling, a husband is compelled to follow the dictates of his judgment. Had the husband been alive, he would have been obligated to give a get. In the wake of the beit din judgment; there exists a zekhut to permit the execution of a get zikui that would afford relief to the plight of the agunah.",
+ "Even in the absence of a psak of beit din that would obligate the husband to give a get, the mitzvah of freeing a woman from the chains of igun is sufficient enough to label the situation as a zekhut. As R. Hayyim Ozer Grodzensky states in the name of R. Shlomo ha-Kohen of Vilna,",
+ "Since he expresses an interest that he wants to divorce and release her from yibum, it is a benefit because it is a mitzvah to release her from the chains of igun.",
+ "Subsequently, R. Yosef Tzvi ha-Levi, av beit din of Tel Aviv-Yaffo Regional Beit Din observes,",
+ "It is a major mitzvah that a woman is saved from her igun. And we find that due to the zekhut mitzvot (the benefit of mitzvot), we say zakhin.",
+ "In a recent Israeli decision, relying upon Rambam’s and R. Akiva Eiger’s rulings and Dayan Avraham Horowitz’s psak din, the beit din rules that when marital reconciliation is unattainable and even if a wife engaged in adultery, it is prohibited for a husband to be me’agein (delay the giving of a get) his wife. In other words, there is not only a hiyyuv (a duty) upon the husband to give a get but failure to give one involves the commission of an issur! Hence, zekhut hanefesh mandates that a husband give a get and therefore we may invoke zakhin.",
+ "Notwithstanding R. Shlomo ha-Kohen’s position, here again, the outstanding question is whether the zekhut hanefesh of complying with a beit din’s ruling and a husband’s duty to give a get and thereby refrain from being me’agein his wife will trump the subjective wishes of a husband who “stands and screams”, refusing to give a get to his wife.",
+ "As we will show, there exists a mesorah that recognizes, in very limited circumstances, the invoking of a get zikui despite the husband’s protestations.",
+ "A case where zakhin was applicable despite a husband’s protest may be found in a letter authored by R. Elyashiv in September 1954 and sent to Rabbi Yitzhak Herzog in 1959 and subsequently, around 1990, he incorporates the letter into his Kovetz Teshuvot. Addressing the case of an agunah whose husband who was living behind the Iron Curtain and in all probability remarried due to the enforced separation from his wife, relying upon a decision of R. Yitzhak Elhanan Spektor, R. Elyashiv rules that the accrued benefit of “saving him from sin” may serve as grounds to employ zakhin even if the husband “stands and screams”, even if the husband would fail to recognize “the good” to be not in violation of the herem against polygamy. In fact, R. Elyashiv’s proof that get zikui will be operative even in the wake of a husband’s objection is derived from the case of an apostate wife who refuses to receive a get. Despite the disparity between the biblical prohibition of adultery and the rabbinic ban against polygamy, R. Elyashiv nevertheless released the woman from her “igun”. Lest one challenge the soundness of this psak, notwithstanding that there are authorities who claim bigamy is a rabbinic violation, there are Poskim who contend that transgressing the herem entails a de-oraita issur (a Biblical violation). Even if it is open to debate whether the herem is operative after the fifth millennium (1240 CE), it may be viewed as a minhag and it must be seen through the lens of a neder (a vow), which is grounded biblically. Despite the fact that in accordance to R. Elyashiv one cannot coerce a husband who married a second wife without giving a get to his first wife to give the get, if we would assume that violating the prohibition of bigamy entails a biblical transgression, it would therefore be permissible for a beit din to employ a get zikui in order to free the wife from the biblical issur of an eishit ish (the prohibition of a married woman), in spite of the husband’s protestations. A similar position is subscribed to by R. Feinstein. As R. Feinstein notes,",
+ "It isn’t considered an absolute benefit if he doesn’t have another wife.",
+ "The inference is that if the husband has remarried and has been recalcitrant with giving a get to his first wife, zakhin is applicable.",
+ "In effect, explicitly R. Elyashiv and implicitly R. Feinstein are of the opinion that the contours of the zekhut, more specifically the zekhut hanefesh has been already established in the situation of conferring a benefit upon a wife. As Rema states,",
+ "Some say if his wife has become an apostate, somebody confers upon her the benefit of a get and he marries another woman . . .",
+ "Following in the footsteps of R. Yisrael Isserelein, Helkat Mehokeik elucidates,",
+ "And the reason is to prevent the husband from transgressing the legislation of Rabbi Gershom.",
+ "In other words, the deployment of zakhin concerning an apostate wife who refuses to receive a get is to save the husband from sin. Numerous decisors have subscribed to this rationale as a basis for invoking zakhin.",
+ "Analogously, contend Rabbis Elyashiv and Feinstein the employment of zakhin regarding a recalcitrant husband who is marrying a second wife without halakhic permission is to save him from sin. Despite the differences between the case of the apostate wife where zakhin is effective despite the fact that the get process is bereft of the wife’s consent to receive her get and the situation of the recalcitrant husband where zakhin is operative even in the absence of a husband’s directive to give a get and designate a scribe and appoint witnesses, the nature of the zekhut is identical, namely the zekhut hanefesh to save the husband from sin.",
+ "Assuming one accepts the aforementioned six foundations, the final issue is whether our Poskim will extrapolate (“medameh milta le-milta”) from the aforesaid views that invoke zakhin regarding “saving a husband from the sin” of transgressing the herem despite his objections to the situation of a husband who is “me’agein” his wife? To state it differently, whereas zakhin has been recognized as “saving a husband from sin” in the context of violating the herem, it ought to encompass “saving the husband from the sin “ of “failing to rescue him” or abstaining from the act of “loving your neighbor like yourself “ by refusing to give a get. In fact, relying upon the above cited teshuvah of R. Eliyahu Mizrachi and Penei Yehoshua, R. Nehoriah Y. Ohanah raises this sevarah, line of reasoning.",
+ "At this juncture, there exists no mesorah permitting the implementation of get zikui concerning a husband who is recalcitrant regarding the giving of a get. In fact, contemporary Poskim such as R. J. David Bleich and Dayan Uriel Lavi reject the employment of get zikui under such conditions.",
+ "On the other hand, R. Rafael Stern of Beit Va’ad le-Torah of Givat Shmuel, Eretz Yisrael contends that R. Klatzkin would allow a get zikui under such conditions, despite a husband’s objections. However, this allowance is provided given that it is a zekhut gamur to be divorced, namely there exists an obligation to give a get in the particular circumstances. But R. Stern leaves the matter as one that requires further deliberation. However, invoking R. Klatzkin’s teshuvah as a panacea for the modern-day agunah problem is highly problematic. Despite the fact that there was no gilui da’at that would indicate that the husband would give a get, in the scenario posed to R. Klatzkin, get zikui was recognized due to a constellation of facts that were unique to the case at hand and therefore cannot serve as a precedent for validating the implementing of a get zikui in the conventional scenario of a recalcitrant husband. As R. Klatzkin notes, the kiddushin may have been valid only on a rabbinic level in the case addressed by him. Also, the husband lost nothing due to the fact that he was prohibited to live with her because his wife entered into a second marriage and the husband had abandoned his wife for at least five years. In other words, a read of his teshuvah clearly indicates that a get zikui was employed due to the specific facts of the case and therefore his ruling cannot serve as grounds for executing a get zikui in every situation where a husband refuses to give a get. In other words, given the particular facts of the case, R. Klatzkin’s ruling will not apply in the overwhelming majority of modern-day agunah situations. Moreover,R.Yisrael Mintzberg claims that R. Klatzkin retracted his position.",
+ "In sum, in pursuance to the foundations presented, acting for the absolute benefit of the husband (“zakhin le-adam”) empowers a beit din to issue a get zikui in two instances: Firstly, the Tzfat Regional Beit Din argues that a get zikui may be issued in the case of a husband who is in a permanent vegetative state and therefore incapable of instructing the giving of a get to his wife. Secondly, when dealing with a husband who received an improper heter nissuin, permission to remarry and subsequently married a second woman without giving a get to his first wife, contends R. Elyashiv serves as grounds to issue a get zikui. As such, there is now a mesorah to issue “a get zikui” in these two scenarios. Though there is no mesorah to execute a get zikui in the case of the modern day agunah where the husband refuses to give a get, yet we submitted argumentation to sanction the execution of a get zikui for the modern day agunah based upon the ruling of R. Elyashiv which deals with “saving a husband from sin”.",
+ "Deciding le-halakhah (on a theoretical plane) as well as le-ma’aseh “(as a practical judgment) between the competing arguments regarding the readiness to recognize the institution of zakhin concerning a recalcitrant husband and recognizing “the saving a wife from igun” as a zekhut is the province of the Posek. The relative strength of extrapolating from the case of “saving a husband from sin” regarding the herem of Rabbeinu Gershom to a general instance of get refusal will hopefully be tested within the framework and constraints of future decisions of our Poskim and battei din."
+ ],
+ "Chapter 7; An Inquiry into some of the varying halakhic traditions regarding the appropriateness of a divorcee marrying a kohen": [
+ "A kohen (a Jewish man from the priestly class) is proscribed by an explicit prohibition in the Torah from marrying a divorcee, with the ban memorialized in the various restatements of Halakhah. Despite the fact that it is uncertain that all known kohanim are in fact the descendants of Aharon, there is a hazakah (a presumption) that they are indeed kohanim. As such, the prohibition remains in force to this very day. Though the marriage is prohibited, should the man and woman marry the marriage is valid. Nonetheless, given that such a marriage is proscribed, in a country such as Israel where coercion is an option, we compel the man to divorce his wife.",
+ "Let us imagine a scenario in which a Jewish man and a Jewish woman are married in accordance with Halakhah. Subsequently, the couple divorced in accordance with Halakhah. In this scenario, where there was an ilat gerushin (grounds for the divorce) and therefore the get was a sine qua non halakhic requirement, it is obvious that a kohen may not marry the divorcee. However, what happens if this get falls into the category of a get le-humra (a precautionary stringency), which is rabbinically mandated—such as in the situation of the presence of invalid edei kiddushin, which was never addressed at the time the get was executed? Years later, the divorcee meets a kohen and they desire to marry each other. Assuming there would be grounds to void the divorcee’s marriage (bittul kiddushin), such as the presence of invalid witnesses testifying to the act of kiddushin (loosely translated as marriage), is there a prohibition to consummate such a marriage between the divorcee and the kohen?",
+ "A sine qua non to create the ma’aseh kiddushin (the act of halakhic marriage) is the presence of two adult Jewish males who are Torah observant, not blood relatives to either the man or the woman, who witness the man reciting “harei at mekudeshet li betaba’at zo, kedat Moshe ve-Yisrael”, and who observe the man transferring a ring to the woman and her acceptance of the ring. Addressing a case of an agunah who attempted to have her marriage voided due to the fact that both witnesses during the kiddushin were invalid due to the fact that they violated the Shabbat and committed other sins, R. Aharon Walkin who resided in Pinsk, Ukraine and later died in a concentration camp in the 1930’s responds to such a request in the most trenchant terms,",
+ "It is improper in my eyes to adopt this path to criticize the act of kiddushin eight years after the wedding . . . You must understand that such advice can destroy the purity of Israel . . . to multiply mamzerim in the midst of a holy nation; the marital bond from now will be not sustained. Everyone will destroy it in accordance with his will . . . And the stringency of being married (eishit ish) will be nullified . . . Therefore eight years after the wedding . . . we should not inquire for guidance to void the marriage . . .",
+ "And, in conclusion, R. Walkin notes,",
+ "I will not deny that if the husband and wife would have questioned me about the kiddushin immediately after the kiddushin, I would respond to them that he should be mekadesh (loosely translated, marry) her in the presence of two eligible witnesses since there are quite a few doubts and strong concerns with this kiddushin. However, when the question emerged to void the kiddushin and permit her to remarry, far be it for me to do that even for proper reasons.",
+ "In sum, voiding a marriage ceremony many years after a couple have been living together as a married couple will only undermine the institution of halakhic marriage and therefore the thrust of R. Walkin’s position is that regardless of whether we are dealing with an agunah or a non-igun situation, such as our scenario of a divorcee who wants to marry a kohen, voiding a marriage ought to be unwarranted.",
+ "Aligning himself with R. Walkin’s position, Dayan Uriel Lavi, av beit din (presiding dayan) of the Jerusalem Regional Beit Din, advances the position that that there are various halakhic procedural requirements which in most instances ensure that in the event that there are ostensibly invalid witnesses for kiddushin, one can nevertheless almost guarantee that the marriage will be recognized and that we can ultimately (and this is my inference) protect the institution of halakhic marriage.",
+ "Firstly, following in the footsteps of the Havot Ya’ir who rules in accordance with Hatam Sofer and others, in the event that there were invalid witnesses at the huppah (wedding ceremony), one can rely upon the Torah-observant attendees at the ceremony who observed the kiddushin yet did not observe the actual mesirah (the giving of the ring) by the hatan (the groom) to the kallah (and her acceptance of the ring) and/or did not hear the hatan be mekadesh (consecrate in words) his wife. These Torah-committed participants may serve as “anan sahadi” (firm knowledge of something is equal to witnessing it), as if they are saying, “we are the witnesses of the kiddushin”. The fact that some of the participants in the audience may be non-observant does not preclude the invoking of the halakhic axiom of “anan sahadi” by the Torah-observant attendees, provided that the mesadeir kiddushin (the rabbi who officiates at the kiddushin) is Torah-observant and proficient in the halakhot of kiddushin.",
+ "However, the majority of Poskim endorse the earlier view of R. Weil of fifteenth-century Germany that once the witnesses are designated and they are found to be ineligible, one cannot validate the wedding based upon others who are present at the wedding that are qualified to give testimony. In effect, contrary to Rabbi Lavi, protecting the institution of marriage cannot be accomplished once the designated witnesses have been found to be invalidated by invoking “anan sahadi”.",
+ "Realizing that there are some eminent authorities who refute Hatam Sofer’s view, Dayan Lavi invokes two additional procedural requirements that in effect challenge the acceptability of deeming a witness as an ineligible witness without critical inquiry. Firstly, adopting Tumim’s view, witness invalidation is accomplished by definitive ruling of a beit din corroborated by two witnesses who testify to his disqualification. Dayan Lavi concludes that the majority of witnesses cannot be disqualified by their own admission or based upon the assessment of others. In other words, people who want to disqualify a witness to the act of kiddushin must submit their testimony in the presence of beit din. Hence, given the absence of a beit din determination, there would be no grounds to void the marriage. As aptly noted by Dayan Lavi, there are some Poskim who concur with the Urim ve-Tumim’s position;nevertheless, there are others who object to his view. Others point out that if the public is aware of the witnesses’ noncompliance with Halakhah, such as violating the Shabbat, or they have admitted to having transgressed Shabbat, one does not require formal testimony in beit din by two witnesses.",
+ "Secondly, buttressing his position, Dayan Lavi subscribes to Sma’s ruling that if the witness is unaware that he committed a sin, one cannot identify such an individual as an invalid witness. Though there are numerous Poskim, including R. Walkin, who align themselves with this position, there are others who object to Sma’s view. For example, relying on various Poskim, R. Shlomo Amar opines,",
+ "Today . . . the ignorant masses, their sins have been sanctioned (“heter gamur”). And they converse with themselves about transgressing Shabbat and Yom Tov just like they speak about other matters, and they tell each other what they did on Shabbat, and where they traveled. Nobody would cast a doubt regarding their words that in fact that they transgressed Shabbat and committed other sins, therefore a man is trustworthy to disqualify himself from submitting evidence.",
+ "Here again, Dayan Lavi and R. Walkin advance a procedural requirement that in effect will result in affirming the marriage because many, if not most, Jews today are unaware that their conduct is in violation of Halakhah. And consequently, by dint of their lack of cognizance, they would not be disqualified in serving as witnesses for affirming that a Jewish man and Jewish woman have consummated their kiddushin.",
+ "Finally, following in the footsteps of the scholars of Toledo, Spain, prior to invalidating a witness of kiddushin who committed a transgression, one must ascertain that he has not been repentant. However, if subsequent to the wedding he has been penitent, then the kiddushin is valid and therefore the execution of a get is required. Here again, as noted by Dayan Lavi, there are Poskim who refrain from factoring into consideration a witness’s repentance and validate the marriage.",
+ "In short, adopting any or all of these procedural requirements prior to invalidating an eid kiddushin almost guarantees that once a Jewish couple has been married by an Orthodox rabbi, the opportunity to void the marriage will be significantly diminished or nonexistent despite the potential issues with the acceptability of the eidei kiddushin.",
+ "On the other hand, a posek must be aware of the ramifications of either rejecting the technique of “anan sahadi” and/or the procedural requirements that the individual’s disqualification must have passed beit din muster.",
+ "Assuming one adopts the latter approach that upon discovery that there were ineligible witnesses for the huppah and therefore there are grounds to void a marriage, then the execution of a get isn’t mandated since the union failed to be consummated under the huppah. Nevertheless, since the marriage was performed publicly and the couple lived together for years and had children, there was a kol kiddushin (loosely translated—a rumor of marriage). However, there is also a kol gerushin (a rumor of divorce) that was confirmed by the act of beit din in which the get states explicitly that she is permissible to marry everyone except a kohen! Should we be concerned about reiah ha-get (lit. the fragrance of the get) that prohibits the divorcee to marry a kohen since there was a kol kiddushin? In a scenario where a get le-humra was executed, are we to be concerned about a reiah ha-get and therefore the divorcee would be unable to marry a kohen? Or do we stake out the position that the notion of reiah ha-get is applicable only when the get was given min ha-din, namely due to a certain ilat gerushin (a ground for divorce)? To state it differently, if the witnesses under the hupah were ineligible and therefore there are grounds to void a marriage, may a kohen marry the divorcee given that a get, albeit was executed as a rabbinical stringency?",
+ "In one case, it became evident after a divorce that one of the eidim for the kiddushin was invalid due to being a relative and the second witness transgressed the Shabbat in public, the Haifa Regional Beit Din under Dayanim S. Y. Cohen and M. Uriyah allow the divorcee to marry a kohen whom she knew well (in their words, “adukah”). Since there was a dissenting opinion on the panel, the beit din requested R. Shlomo Amar, the Chief Rabbi, to resolve the matter. And Dayan Tzion Boaron replies to the question. Implicit in the question is that given that the marriage was never established due to the presence of ineligible eidin, but given that a get nonetheless was executed, are we to be concerned about “reiah ha-get”? Shulhan Arukh rules,",
+ "if a kohen marries a divorcee even if she is safek gerushah (there is a halakhic doubt whether she is a divorcee), he must leave her . . . and even reiah ha-get invalidates her to a kohen and we coerce him to divorce her.",
+ "In his mapah concerning this ruling, Rema adds,",
+ "Even if she became divorced only because of kol kiddushin even though it is clear that there was no mamash (no substance) in the kiddushin and the get was given only because of a humra be-alma (a stringency) nonetheless she is invalidated to marry a kohen.",
+ "As we know, a get can be executed min ha-din (pursuant to the law) which means that a beit din will determine the grounds for a divorce such as a husband’s impotency, unwillingness to support his wife, or engaging in spousal abuse—physical or emotional. Alternatively, if a couple has been separated for either a minimum of a year or 18 months and it clear that we are dealing with “a dead marriage” and there are no hopes for marital reconciliation, according to certain dayanim today, such a situation would be grounds to either obligate or coerce a get. In addition, to mandating a get min ha-din, on rabbinic grounds one can direct the issuance of a get le-humra (a precautionary stringency). For example, according to most decisors today, in the case of a couple who only underwent a civil marriage, should they dissolve their relationship, a get le-humra is required.",
+ "In short, for Rema, regardless whether the execution of the get is mei-ikar hadin or le-humra, the divorcee is prohibited from marrying a kohen due to the Talmudic label of “reiah ha-get”. And in fact, there are numerous Poskim who would endorse Rema’s opinion and argue that one cannot nullify a kol kiddushin.",
+ "However, we need to examine the basis for Rema’s shita (position) prior to arriving at that conclusion.",
+ "Given the fact that a printer of Shulhan Arukh adds in parentheses after Rema’s ruling that the basis for his conclusion is a teshuvah of Rashba and, to the best of my knowledge, all Poskim—contemporaneous as well as subsequent to Rema—assume that Rashba’s psak is the basis of Rema’s position, we will briefly scrutinize Rema’s shitah within this context—through the lens of the aforementioned teshuvah of Dayan Boaron, whose argumentation and conclusion is accepted by Rabbis S. Amar, O. Yosef, Masash, Waldenberg, Zevichi, and others.",
+ "Many Poskim point out that though a read of the Rashba’s teshuvah that serves as the basis for Rema’s view would lead one to the conclusion of the recognition of the notion of “reiah ha-get”, nonetheless Rema’s contemporary the Beit Yosef (who is the author of Shulhan Arukh) presents another of the Rashba’s rulings, memorialized in his teshuvot, which contradicts the other teshuvah. On the one hand, Helkat Mehokeik raises this contradiction and concludes that one must distinguish between the fact patterns of the two cases, but he fails to articulate the differences between the two rulings. Beit Shmuel, on the other hand, cites Bah’s view that Rema’s position is dealing with a divorcee who has yet to remarry the kohen and the situation of the teshuvah found in the Beit Yosef deals with the situation of a kohen who married the divorcee and, in such a “be-diavad” (post facto) situation, the notion of “reiah ha-get” is inapplicable and the couple need not separate. However, Beit Shmuel presents Taz’s view who rejects this distinction and here again Beit Shmuel does not side either with Taz or Bach. Finally, there is another approach that, in accordance with Rashba’s ruling cited in Beit Yosef, if it is clear that a get was executed and the woman does not challenge the veracity of “kol de-la pasik” (the persistent rumor), then she is prohibited from marrying a kohen.",
+ "However, there is a fourth position: Given that there is a contradiction in Rashba’s teshuvot, we assume that the one cited by Rema reflects his earlier position and Beit Yosef is citing his later view. The proof given for this conclusion is based upon a read of the later teshuvah, where Rashba counters the proofs that he had brought to buttress his decision in the earlier teshuvah. In effect, Rashba, similar to other rishonim such as Rambam and Rosh changes his mind and both the original position and his final decision are memorialized in his collection of rulings.",
+ "Moreover, Dayan Boaron and the others argue that there are other Poskim who reject Rema’s view; in the forefront are Tosafot Ri ha-Lavan and Rabbi Eliezer of Metz, who nullify the kol kiddushin. In fact, in accordance with Rabbis O. Yosef and A. Kovo, the majority of Poskim reject Rema’s view. Finally, since we have a controversy whether to rule like Rema or not and we are dealing with a rabbinic matter, as Rabbis Avraham Boton and Maharhash note, we follow the lenient opinion. And, in fact, R. Akiva Eiger cites his position without disputing it. Other Poskim arrive at the same conclusion that one follows the lenient opinion.",
+ "Based upon the foregoing as well as additional lines of argumentation,Dayan Boaron affirms the Haifa beit din’s decision and, in light of the discovery of that the witnesses were disqualified, the kohen and the divorcee who knew each other quite well were permitted to marry each other, despite the earlier execution of the get le-humra. In fact, Dayan Boaron reiterates his conclusion in another teshuvah, which deals with a similar fact pattern.",
+ "By no stretch of the imagination are these two psakim of Dayan Boaron “a lone ranger”, which emerges from the particular fact patterns posed to him. He equally enbraces this view in other scenarios. One case involved a kohen who divorced his wife and afterwards returned to engage in conjugal relations and children were sired from that relationship after the divorce. Subsequently, they became ba’alei teshuvah, but it was discovered that one of the witnesses to the original kiddushin were transgressors of Shabbat in a public fashion. So the question posed to Dayan Boaron was whether they could remarry in accordance with Halakhah. Without even addressing the matter of the children, Dayan Boaron renders the same psak as we encountered in the other two teshuvot. Namely, the get was identified as a get le-humra due to the witness disqualification and therefore the rule of “reiah ha-get’ is inapplicable, and consequently he is allowed to remarry his former wife.",
+ "Moreover, addressing the case of a couple who were originally were married by a Reform rabbi and then separated, R. Amar rules that the divorcee would be permitted to marry a kohen. Notwithstanding R. Feinstein’s view that the act of kiddushin never transpired at a wedding ceremony which is officiated by a Reform rabbi, for those Poskim who rule that a get le-humra is required, he concludes that the divorcee may marry a kohen. In another case, there was a kol kiddushin (but clearly there was no basis for claiming that the kiddushin ever happened), a get was executed, and subsequently a kohen married her and they had children. The question posed to R. Waldenberg was whether the kohen could remain married to his wife or must he divorce her? Here again, the psak was that he may remain married her and the same line of reasoning as advanced by Rabbis Amar and Boaron was argued by R. Waldenberg. A case with a similar fact pattern to the case that we found by R. Waldenberg was equally posed to R. Pinhas Zevichi and he arrives at the identical conclusion.",
+ "Finally, notwithstanding that the majority of Poskim contend that a civil marriage does not constitute a halakhic marriage and therefore a get is not required, the Rogotchover, Ma’arkhei Lev, R. Winkler, Melamed le-Ho’il, and R. Henkin mandate the execution of a get le-humra. The question emerges: If a couple who is only civilly married and a kiddushin was never consummated due to the couple separating and get le-humra was issued due to the fact that the civil law mandates a get prior to finalizing a civil divorce, can that divorcee marry a kohen? On the one hand, adopting Rema’s view, Menahem Meishiv Nefesh and R. Dovid Kohen opine that the divorcee would be proscribed from marrying a kohen. On the other hand, relying upon the Rashba’s ruling cited by Beit Yosef and rejecting Rema’s position, R. Ya’akov Breisch claims that she can marry a kohen. Said position is endorsed in contemporary times by the Netanya Regional Beit Din as well as Rabbis O. Yosef, Tzvi ben Ya’akov, Amar and Algarbeli of the Beit Din- ha-Rabbani ha-Gadol in Yerushalayim.",
+ "In pursuance to R. Aron Soloveitchik, the demand for a get le-humra has only implications for the prohibition of eishit ish (the status of being a married woman). It is only relevant in connection to the relations between the husband and the divorcee. However, in relation to other prohibitions such as mamzerut (halakhic bastardy), one can be lenient. The rationale is that because the violation of eishet ish entails a severe prohibition that results in the punishment of karet, a beit din will therefore be concerned to sustain the kiddushin and therefore will mandate a get le-humra. On the other hand, the prohibition of mamzerut is an issur lav (its normative level is lower) and therefore there is lesser concern. To state it differently, a beit din will act less stringently regarding lineage of a child [i.e.mamzerut] than in a case of a doubt where the woman is to be considered still married. A similar line of reasoning would apply to the marriage of a divorcee and a kohen. Given that a marriage of a divorcee and a kohen entails a transgression of an isur lav, the marriage is valid by dint of the fact that it doesn’t constitute giluy arayot. As such, should a get le-humra be executed prior to their marriage, their marriage will be valid and need not be dissolved.",
+ "Assuming there are grounds to void a marriage subsequent to the issuance of a get based upon witness disqualification and allow a divorcee to marry a kohen, is there a basis to employ “kiddushei ta’ut”(loosely translated- an erroneous marriage) and permit a divorcee (who was divorced with a get) to marry a kohen? To state it differently, after receiving a get many years earlier, can a divorcee subsequently advance a claim of “kiddushei ta’ut” and should her claim be found justified, can she marry a kohen? In the wake of a finding that the execution of a get was in actuality a get le-humra due to the fact that after the divorce it was discovered that the witnesses at the kiddushin were ineligible to testify, therefore the divorcee is permitted to marry a kohen. Would we arrive at the same conclusion if the voiding of the marriage is based upon “kiddushei ta’ut”? To the best of my knowledge, such a question has not been addressed in the extant teshuvot and decisions of the Israeli battei din, but let’s try to flesh out the issues and the potential replies to our question.",
+ "As we discussed in chapter five, prior to a wife invoking the tool of kiddushei ta’ut to void a marriage retroactively and claim there was an error in the creation of the marriage, three preconditions must have been obtained: The first is that the husband’s defect must be a major one (a mum gadol) such as sexual impotency, refusing to have children, insanity, homosexuality, or apostasy; secondly, the wife must be unaware of the defect prior to the inception of the marriage and only discovered it after the marriage. On the other hand, if for example, a husband commits adultery or contracts Alzheimer’s during the marriage, though both may be characterized as a mum gadol significantly impairing the matrimonial relationship, nevertheless since the conduct or disease occurred after the onset of the marriage, there would be no grounds for a wife’s claim that the marriage was consummated in error.",
+ "Finally, upon a wife’s awareness of the major latent defect that her husband may have intentionally or unintentionally failed to disclose to her, she must decide to leave the marriage. Regarding this condition, whether she must immediately leave the marriage or not, is subject to debat as we have shown.",
+ "Assuming all of these conditions would exist, there would be grounds to invoke “kiddushei ta’ut”.",
+ "Seemingly, the implementation of “ta’ut” runs afoul of R. Mordekhai Eliyahu’s following psak din. A couple married and after the onset of the marriage she discovered that he was mentally dysfunctional and later divorced him. Subsequently, she married a kohen civilly and then married him in accordance with Halakhah based upon rabbinic advice that the first marriage was a case of “ta’ut”. Addressing this case, R. Eliyahu is unwilling to invoke “ta’ut” due to the fact that he is unsure whether the get was executed min ha-din or as a get le-humra. Clearly, our review of teshuvot did not reveal to us why the get was given and nevertheless the various decisors determined post facto that the execution of the get was rabbinically mandated as a humra and consequently there should be grounds to permit the divorcee to marry the kohen.",
+ "Should there be a determination that in fact there was a “ta’ut”, then there may be one of three options. One possibility is that the marriage ought to be voided and therefore she is free to remarry even a kohen due to the fact that she does not have the status of a gerushah (a divorcee). Alternatively, for those Poskim who claim that this case entails “a safek kiddushin” (a doubtful marriage), a get must therefore be executed le-humra. Since the get executed is rabbinically mandated as a get le-humra, in accordance to the above-cited Poskim, the divorcee would be allowed to marry a kohen. Alternatively, espousing the view of those authorities who contend that the rule of “reiah ha-get” is applicable even concerning a scenario where there is an issuance of a get le-humra would inexorably lead to the conclusion that the divorcee is proscribed from marrying a kohen.",
+ "Should one support the position that a divorcee may marry a kohen by invoking “ta’ut”, can one use as a “senif” (a supporting argument) that we are not 100% sure kohanim nowadays are kohanim and therefore permit the divorcee to marry a kohen? In accordance to Rivash, Yam shel Shlomo, Maharashdam, and others, such an argument may be advanced.",
+ "In conclusion, we began our discussion by noting that there are authorities who will refrain from invalidating a marriage that took place in the past due to the fact that it was now discovered that the witnesses who attested to the act of kiddushin were ineligible. As such, the matrimonial bond never existed. Such a tradition emphasizes the importance of sustaining the halakhic institution of marriage even in the face of an igun situation. At the same time, we observed that there are numerous decisors who would invalidate the marriage under such conditions.",
+ "In the context of these two diametrically opposed mesorot (traditions), we have addressed the question whether of there would be any scenarios where a divorcee would be permitted to marry a kohen. In light of the fact that there is a biblical proscription to recognize such a marital tie, there would seemingly be no circumstances where such a marriage ought to be validated. Yet, we found that there is a debate in regards to the discovery of invalid witnesses to an Orthodox wedding or a couple who were either civilly married or were married by a Reform rabbi and get le-humra was issued, whether a kohen could marry any of these Jewish women. As we encountered in the matter of discovering years after the marriage that the edei kiddushin were ineligible at the time of the union, there is ongoing controversy whether we protect the halakhic marriage and continue to affirm the existence of the marriage or not. Similarly, the propriety of a divorcee marrying a kohen where a get was issued in the wake of a Reform wedding or a civil marriage is subject to varying positions. Here, the locus of attention centers upon whether “reiah ha-get” is applicable or not. To state it differently, invoking this rule in effect means that one of our concerns is to stress the significance of the marital tie and that even in circumstances such as a civil marriage or a Reform marriage ceremony where a get would be mandated, a divorcee is prohibited from marrying a kohen. On the other hand, those who claim that “reiah ha-get” is inapplicable in these cases have argued that there are other concerns which lead one to the conclusion that such a marriage ought to be sanctioned. For example, one of the concerns mentioned in the teshuvot is that there is a need to minimize the possibility of the non-Torah observant divorcee continuing in engaging in the commission of prohibitions. Consequently, according to certain authorities, a divorcee from a civil marriage may be permitted to marry a kohen halakhically. Should we fail to sanction this halakhic marriage, the man and woman will continue to engage in sin. Finally, in the instance of discovery of “kiddushei ta’ut”, some Poskim will affirm the norm of “reiah ha-get” and will proscribe the divorcee from marrying a kohen, while others will invoke the discovery of a preexisting latent flaw in the husband’s persona and permit such a union.",
+ "Addressing the need to invoke one halakhic norm among a constellation of halakhic norms in exclusion of another one regarding the propriety of a union between a kohen and a divorcee, we even encounter situations where a get le-humra has not been issued. For example, there is a controversy whether a kohen who civilly married a daughter of a non-Jew is permitted to marry halakhically. Notwithstanding Beit Dovid, R. Feinstein, and Dayan Eliyahu Abergil, who contend that even if a kohen married a daughter of a non-Jew married civilly and had a child post factum, they would be unable to undergo a halakhic marriage, Rabbis Messas and Amar argue that one can a priori marry halakhically. Relying upon the rulings of Rabbis Yosef and Messas, R. Cohen contends that if a daughter of a non-Jew is pregnant and is living civilly with a kohen, we permit her to marry him halakhically. Similarly, in another scenario, the daughter of a non-Jew did not know the halakhic proscription of marrying a kohen and she fell in love and is engaged to him. Since according to many authorities it is a safek whether we are dealing with a rabbinic prohibition, we may rely on Maharashdam’s view that the priesthood of the kohanim nowadays is in doubt, and since she may never find another mate, under such circumstances, Rabbi Ehrenburg consequently allows her a priori to marry the kohen. Following in the footsteps of Rabbis O. Yosef’s and S. Amar’s rulings, Rabbi Messas sanctions this union in a series of rulings. And more recently, Rabbis Aharon Katz, Yishai Bucharis, and Eliyahu Edrei render a similar decision.",
+ "As such, our limmud (study) has demonstrated, we find countervailing halakhic norms emerging from the various situations addressed in our teshuvot (responsa) concerning the propriety of a divorcee marrying a kohen. Among those norms we find the importance of preserving the institution of marriage vs. addressing the igun situation and/or facilitating the religious observance of a member of the Jewish community vs. the norm of “reiah ha-get” in non-igun cases. Which norm(s) will be the determining factor in a particular ruling is subject to the posek’s discretion, which in itself is grounded in the canons of the decision-making process."
+ ]
+ },
+ "Part II; Rabbinic Authority; The Reality": {
+ "Chapter 8; Decisions in Even haEzer": {
+ "a) The validity of the act of kiddushin without the presence of two eidim": [
+ "Facts of the Case",
+ "On June 20, 1983, Esther Katz married Levi Mayer. The kiddushin (lit. halakhic betrothal-loosely translated, the marriage) was finalized when the hatan (the groom) placed a ring on the kallah’s (the bride’s) right index finger while pronouncing “harei at mekudeshet li be-taba’at zo, kedat Moshe ve-Yisrael”(you are betrothed to me with this ring, in accordance to the religion of Moses and Israel). Based upon viewing the video of the kiddushin ceremony which occurred under the hupah, the following individuals were under the hupah: the hatan and kallah, the hatan’s mother and sister, and the kallah’s father, mother, brothers, and sister. Except for these relatives who were present at the time of the giving of the ring, the only nonrelative present was the Rabbi, who was mesadeir kiddushin, overseeing that the proceedings would be conducted in accordance with Torah law and the audience who was comprised of both Torah-observant and non-observant Jews.",
+ "In 2010, the couple separated and at the time Esther requested a get. Subsequently, in August 2012 a civil divorce was executed. However to this date, Levi has refused to give her a get.",
+ "Discussion",
+ "A sina qua non to create the ma’aseh kiddushin (the act of halakhic betrothal) is the presence of two adult Jewish males who are qualified (i.e. unrelated to the hatan and kallah), Torah observant, and will testify that the hatan recited to his kallah “harei at mekudeshet li betaba’at zo, kedat Moshe ve-Yisrael”, gave a ring to the kallah, that and she accepted it. If needed, these two eidim (witnesses) may be called upon to serve as eidei ra’ayah to confirm in a beit din that in fact the execution of kiddushin was done in pursuance to the dictates of halakhic marriage law. Moreover, these two individuals serve as eidei kiyyum, who by dint of their presence and participation under the huppah, impart validity to the act of the kiddushin. Whereas the mesadeir kiddushin serves as the mashgiah (the supervisor), the two witnesses are an integral part in establishing the kiddushin. In their absence, or if they are present but they are ineligible to testify, the act of kiddushin cannot be created.",
+ "As Shulhan Arukh rules,",
+ "The mekadesh and the mekudeshet are obligated to see the witnesses. Other poskim agree with his psak. And Rema rules, “. . . and the witnesses have to observe the giving (of the ring) to her hand or her domain. However, if they didn’t observe the giving to her hand even though they heard him say that ‘you are betrothed to me with this object’ . . . it is not kiddushin until they observed the actual giving . . .",
+ "Given that there are no witnesses at the huppah who were seen by the couple and who witnessed the giving of the ring by the hatan to the kallah, the kiddushin was therefore never consummated.",
+ "Subsequently, over a thousand years later, Rabbis Elyashiv, Zolty, and Goldschmidt explain,",
+ "“The witnesses to the kiddushin are witnesses who establish the act of kiddushin rather than witnesses who confirm its existence. In other words, the presence of witnesses is an integral part of the kiddushin and their validity. And if there are no qualified witnesses present during the time of kiddushin, the kiddushin is invalid even if the act of kiddushin was consummated.”",
+ "Even in the absence of two witnesses or in the presence of two disqualified witnesses, there is the Hatam Sofer’s view that Torah-committed Jews who observed the kiddushin ceremony yet did not see the actual mesirah (the giving) of the ring by the hatan to the kallah may serve as “anan sahadi” (we are the witnesses) for the kiddushin. And even the presence of non-Torah observant Jews as onlookers to the kiddushin ceremony will not invalidate the testimony of the other Torah-observant Jews who are onlookers there. Given that at this wedding, the guests at the ceremony included both Torah observant and non-observant Jews, we may seemingly rely upon Hatam Sofer’s position that the act of kiddushin has been established.",
+ "Had we have been dealing with a kiddushin that was invalid due to an ineligible witness, and our intent was to validate the marriage via the avenue of onlookers to the huppah, we would have considered invoking the position of the Hatam Sofer. However, in our case, we are attempting to find a means to invalidate the kiddushin due to the matter of igun ! Even though many Poskim contend that there is a mesorah, a tradition in devar ervah, in matters of sexuality that we must factor into consideration all the strict views. Here, in a situation of igun, numerous Poskim contend that one is to rule leniently. As R. Sinai Sapir states,",
+ "In matters such as those involving agunot, it is improper to collect stringencies . . . In this situation, ‘the strength of leniency is more powerful’, since we are concerned with halakhot involving lives . . .",
+ "Since we rule leniently, we ought to follow Shulhan Aruch and the majority of Poskim.Consequently, since Shulhan Arukh and the majority of earlier authorities reject this position, we refrained from following this position. Furthermore, the authorities in contemporary times who align themselves with opposing Hatam Sofer’s and Havot Yair’s position are Rabbis Elyashiv, Yosef, Osher Weiss and Tzion Boaron.",
+ "Moreover, invoking “anan sahadei” is predicated upon the fact that the mesadeir kiddushin is Torah-observant in general and proficient in the halakhot of seder kiddushin ve-nissuin (the engagement and marriage ceremony) in particular. For example, take a case where the mesadeir kiddushin executed a double ring ceremony where the hatan gave a ring to the kallah and recited the prescribed halakhic text for kiddushin, “harei at mekudeshet li . . . ve-Yisrael” and the kallah gave a ring to the hatan and stated “ani le-dodi ve-dodi li”. Such an exchange of rings is against halakhah according to certain authorities. Therefore, the absence of two witnesses and the execution of a double ring ceremony for kiddushin in our case preclude one from invoking “anan sahadei”.",
+ "Despite the halakhic shortcoming of the absence of two witnesses, may one nevertheless invoke the rule of “ein adam oseh be’ilato be’ilat zenut” (a Jew does not engage in sexual relations as an act of illicit fornication)? If this rule is applied, the act of biah (intercourse) would consummate the marriage. Applying this rule presumes that the couple were religiously committed to a Torah way of life, including compliance with the halakhot of family purity, at the time of the marriage. The mere living together as a husband and wife does not suffice; their cohabitation must le-sheim ishut of kiddushin—to be conscious that the both are living together to the exclusion of others based upon a halakhic imperative rather than cohabitating with each other devoid of halakhic intent is the desideratum. It is our understanding that at the inception of marriage, the spouses were Conservative Jews who were not Torah observant such as keeping Shabbat and therefore the rule of “ein adam oseh be’ilato be’ilat zenut” cannot be applied.",
+ "Could the relationship of the cohabitating couple possibly be viewed as an example of pilgashut (concubinage)? Pilagshut is where there is a long-term commitment that is on one hand marked by exclusivity in terms of conjugal relations between the man and the woman and on the other hand is distinguished by the absence of the execution of kiddushin and the giving of a ketubah. In our case, we are dealing with a situation of a man who in effect chose a woman to be his pilegesh. Though a ketubah was signed, in light of the absence of eidei kiddushin, the act of kiddushin never was established and therefore the signing of a ketubah, which is predicated upon the existence of kiddushin, had no halakhic significance.",
+ "In the absence of kiddushin, the question is whether one may recognize such a relationship. A review of authorities shows that that there is no “hashash kiddushin” (concern that betrothal has happened). As R. Tzemach ben ha-Rashbash notes,",
+ "There is no ishut (marital relationship) here since a woman can be acquired . . . and even though he lived with her and engaged in intercourse a few times, she is not acquired in that fashion. There is no biah (intercourse) . . . because the biah . . . has to be for the sake of kiddushin in the presence of two witnesses and he must recite to her that she is consecrated to me via biah . . .",
+ "Consequently, she is not married to him.",
+ "Moreover, even if subsequent to the marriage this non-observant couple live within a Torah-observant neighborhood, in light of the fact that they were irreligious and ignorant of the dictates of Halakhah, there would be neither a basis to assume that they knew that two witnesses were required to create kiddushin nor that their cohabitation must be for the sake of kiddushin. Furthermore, their choice of a mesadeir kiddushin to execute their marriage implicitly assumed that their marriage would be solemnized in accordance with his understanding of the dictates of Halakhah. In the final analysis, this rabbi was unaware of the basic requirements of creating matrimonial ties to effectuate le-sheim kiddushei Torah (intending to establish a halakhic marriage) through the presence of two eligible witnesses. Consequently, to presume that the couple was consummating the marriage with the intent that their conjugal relations would be le-sheim kiddushei Torah (“hein hein eidei yihud, hein hein edei biah” ) is surely unwarranted based upon their own lack of religious observance including, but not limited to, complying with the halakhot of family purity. Moreover, even a Torah-observant Jew today doesn’t intend to consummate his marriage via intercourse. In fact, we live in a society marked by promiscuity. Consequently, there is no basis to impute such intent to a non-observant Jews! On the contrary, as Rabbi Feinstein notes, given that the couple did not intend to have relations le-sheim ishut of kiddushin but on the basis of the first kiddushin under the huppah, she therefore does not require a get and is permitted to everyone.",
+ "Finally, since the marriage was performed publicly and the couple lived together for years and had children, there is a “kol kiddushin” (loosely translated a rumor of marriage) and therefore the kol should trump the fact that there were no eidim at the wedding. Whether the kol should be determinative in such a scenario is subject to debate. Secondly, even according to those poskim who contend that the kol outweighs the formal impropriety of the kiddushin, in the case of an agunah the marriage may be voided.",
+ "Decision",
+ "Given the absence of two witnesses at the kiddushin who can testify to a valid netinah (the giving) of a ring by the hatan to the kallah while pronouncing aloud the amirah (“harei at . . .”), the act of kiddushin was never consummated. Therefore, Esther Katz is free to remarry without receiving a get."
+ ],
+ "b) Bittul Kiddushin; The invalidation of an eligible eid kiddushin": [
+ "Facts of the Case",
+ "The couple was married in March 2010. Until April 2012, she lived in the same bedroom with him and subsequently moved out of the house in June 2012. In a Deal Memorandum (“Agreement”) dated June 2, 2013, executed between the above referenced parties and signed equally by their respective legal counsel there was a provision that the husband would be give a get (a Jewish divorce) to his wife.",
+ "Ms. Aliza Friedman (hereafter: the Tova’at—the plaintiff) summoned Mr. Baruch Friedman (hereafter: the Nitva—the defendant), her husband, before our Beit Din for the purpose of receiving her get. The couple was civilly divorced in July 2013. To this very date, the Tova’at has not received her get. The Tova’at was informed by the Nitva’s attorney that the get would be granted on the condition that the Tova’at would sign a stipulation that she would waive her right to any share of the community property. Should she sign the waiver, the Nitva would give her a get.",
+ "Discussion",
+ "In Section IV of the Agreement it states,",
+ "The exact language of what needs to be done to obtain a Get shall be included in the Judgment and Respondent shall participate in the ceremony as required by Bet Din of Aliza’s choice. Said ceremony shall be initiated as soon as possible but the final step shall take place upon the date the parties execute the Judgment of Dissolution and the related forms.",
+ "According to Halakhah, the question is if a couple takes upon themselves the obligation to dissolve their marriage, is such an agreement valid? An Israeli rabbinical court gave the following reply:",
+ "it is clear that a divorce decree issued following a mutual agreement to be divorced, even though the parties undertook the obligation. . . . does not obligate them to become divorced . . . each party may withdraw from the agreement.”",
+ "That is, such an agreement is null and void. Numerous rabbinical courts in Eretz Yisrael have taken this position.",
+ "The agreement has may be characterized as “a promise”, which is binding because Halakhah mandates one to keep one’s word. However, this mandate is unenforceable by a beit din. A promise to perform an action in the future, such as the promise to give a get in the future, cannot constitute a hithayivut (the undertaking of an obligation).",
+ "Despite the fact that a beit din cannot mandate that the Nitva comply with his promise to execute a get, over three years have lapsed since they have been separated and this Agreement to address their end-of-marriage issues was executed over three years ago. Clearly, the circumstances indicate that we are dealing with “a dead marriage” with no hopes for marital reconciliation; therefore, the Nitva is obligated to give a get to the Tova’at.",
+ "In an earlier psak din, we therefore ordered the husband, the Nitva to give a get to his wife unconditionally. However, to this date, the Nitva refuses to give his wife a get.",
+ "The question that remains is whether there are grounds to authorize a heter nissuin (permission for the Tova’at to remarry) without the issuance of a get.",
+ "Let’s focus upon the wedding ceremony, the event that established the marriage between the couple. To understand the background and building blocks of this practice, we need to offer some halakhic background. Recognizing that marriage consists of two separate acts, called kiddushin (i.e. act of halakhic engagement without cohabitation) and nissuin (marriage with cohabitation) respectively, Rabbi Norman Frimer and Rabbi Dov Frimer note,",
+ "In practical terms, kiddushin as the primary state of Jewish marriage can be . . . normatively constituted through the presence of five halakhic elements . . . At the helm stands kavanah: intention. But intention for what? Two divergent directions emerge . . . According to one authority, the intent of the couple must be for at least the most minimal and natural characteristics of the marital experience . . . That decision, however, must also include the stipulation that the wife shall be exclusively related to her husband and prohibited to all others. From this intent of le-shem ishut will then flow all other authority which will bestow legitimacy and direction upon the formal ceremony and simultaneously form the foundation of the kiddushin. The other view finds the natural standard utterly inadequate . . . What, then, shall be the normative canon for kavanah? It must be lekiddushei Torah or leshem kiddushin . . . a conscious awareness that the ceremony must be kedin, in faithful fulfillment of the hallowed imperatives of Jewish law . . .",
+ ". . . the intention to marry must be visibly objectified, in order both to articulate as well as to inculcate the core ideas of that kavanah. Jewish tradition, therefore, devised two more patterns of action to achieve tangibility. One of them was the amirah, an official verbal declaration of marital kavanah to be made directly by the groom to his bride in a formal and public style . . . The other act . . . was the netinah, giving, initiated again by the groom and complemented by the parallel kabbalah, receipt, by the bride. These sequential acts of “give and take” involve an object . . . traditionally a ring . . .",
+ "But not only must these facets of kavanah be shared between bride and groom. Normally, the halakha also demands . . . ratson-a fourth element, involving the couple’s voluntary assent to all parts of the erusin (i.e. kiddushin –AYW) . . .",
+ "Finally, a Jewish marriage must be witnessed by at least two qualified edim, whose responsibility is two-fold. When necessary, they . . . can help establish the facts and certify the . . . degree of compliance with the prerequisites of Jewish marriage law. Yet, even more critical is their role . . . who by their very presence and participation at the ceremony constitute the validity of the ma’aseh kiddushin. (i.e. an act of engagement –AYW.)",
+ "In short, the subjective marital intentions of the Jewish man and Jewish woman are translated into reality via verbal articulation; concretization of this intent must occur under the scrutiny of two witnesses and in the presence of an officiating rabbi and public assemblage (minimally ten adult male Orthodox Jews) for the expressed purpose of establishing a consensual marital union.",
+ "Given the procedural requirements to establish whether in fact a marriage was created, we need to inquire whether there were two adult Jewish Torah-observant males who were present under the huppah who would corroborate that the hatan was mekadesh (halakhically engaged) his kallah. Generally speaking, notwithstanding the positions of some authorities, nowadays every adult Jewish male has a “hezkat kashrut” (a presumption of being Torah observant) and therefore qualified to be a witness to the act of kiddushin. That being said, we are not absolved from inquiring into the Torah observance of each witness.",
+ "Reviewing pictures of the huppah ceremony, based upon the Tova’at’s information, we found that under the huppah were the parents of the hatan and kallah, two relatives from the kallah’s family, one relative from the Nitva’s family, one woman who was a non-relative, one adult male Jew who was unrelated to anybody under the huppah and an rabbi who was mesadeir kiddushin he supervised the halakhic propriety of the kiddushin (halakhic engagement) as well as the nissuin (halakhic marriage) that were performed under the huppah. We contacted the mesadeir kiddushin and we were informed that the kiddushin was performed without designating (meyaheid) the witnesses. Moreover, we inquired and discovered that the mesadeir kiddushin violated the Shabbat (in the actual psak din the mesadeir kiddushin was Torah-observant).",
+ "All the relatives present under the huppah were be-dargat kirvah (in the class of relatives who would be invalidated to serve as witnesses for the act of kiddushin). Amongst the individuals present under the huppah during the performance of the kiddushin were relatives from the mother’s family. Notwithstanding most Poskim who rule that such individuals are invalid mi-de-oraita (on a biblical level), in accordance with certain interpretations of Rambam’s view such testimony is to be invalidated only on a rabbinic level. Consequently, even if one rules that the individuals are invalidated as witnesses on a rabbinic level, Rambam as well as Shulhan Arukh and Rema conclude that a get is required mi-safek, because of the existence of doubt that the act of kiddushin may have been valid.",
+ "The individuals who were invalidated as witnesses on a rabbinic level were not the only ones present under the huppah. Individuals who were invalid mi-de-oraita were present under the huppah. Seemingly, their presence invalidates the testimony of those witnesses who were eligible mi-de-oraita based upon the rule in matters of kiddushin “if any witness is a relative or invalid, the testimony of the others is null”. This rule is inapplicable if a party to the kiddushin designated only certain eligible individuals to serve as witnesses to the exclusion of others. The presence of ineligible persons under the huppah will not affect the eligibility of the designated witnesses due to the fact that the selection of two witnesses in effect halakhically separates them from the individuals surrounding them during the time of the kiddushin. In our case, as we were told by the mesadeir kiddushin, he did not designate any individuals as witnesses. Seemingly, the absence of designation invalidates any eligible witness present under the huppah during the performance of kiddushin.",
+ "The question is whether the actual presence of ineligible witnesses who are biblically invalid and who have no intention to testify to the act of kiddushin will invalidate an eligible witness as well as the relatives who are invalid according to certain Poskim? According to many Poskim, the rule of “if any witness is a relative or invalid, the testimony of the others is null” is in effect only if the ineligible witness intended to be a witness to the kiddushin. In our case, it is clear that the presence of these family members under the huppah was only for the purpose of being onlookers rather than serving as witnesses.",
+ "However, there exists the minority position of Ritva in the name of his teacher Ra’ah, which is agreed upon by some rishonim (early authorities), R. Akiva Eiger, and authoritatively cited as a senif (lit. an appendage—a supporting argument) by some contemporary dayanim that in the absence of designating the witnesses, if both eligible and ineligible witnesses are present under the huppah, that the testimony is invalid. In contemporary times, various Poskim and Israeli dayanim rule upon the propriety of a particular act of kiddushin by factoring into consideration Ritva’s view, along with other factors, in voiding a marriage under various circumstances. Disqualification of the eligible witnesses is contingent upon the fact that all or at least one of the ineligible witnesses saw the eligible witnesses.",
+ "Given that Ritva’s position is reflective of a minority view, why would we cite it as one of the bases of our judgment? Clearly there is an acute need to distinguish what transpires in the portals of the beit midrash (study hall) and the world of psak. As R. Aharon Lichtenstein astutely observes,",
+ "Hora’ah (halakhic decision-making) is comprised of two elements: psak and pesikah, respectively. The former refers to codification, the formulation of the law pertinent to a given area . . . of one position in preference to others. As such, it is, essentially the concluding phase of the learning process proper . . . and its locus is the bet midrash. Pesikah, by contrast, denominates implementation. It bespeaks the application of what has already been forged in the crucible of the learning to a particular situation . . . Its venue is, publicly, the bet din, or, privately, the meeting of the inquirer and respondent . . . Its challenge lies in the need to harness knowledge and responsibility at the interface of reality and Halakhah . . . (Leaves of Faith, vol. 1, 162–163)",
+ "Our psak’s reliance in part on Ritva’s position belies R. Lichtenstein’s understanding of what the process of psak entails for a dayan. Addressing the situation of the classical agunah where the husband has disappeared and his whereabouts are unknown and noting the uniqueness of each agunah situation, R. Ya’akov Reischer rules the following,",
+ "In the situation of an elderly woman who is not desperate to remarry, there is no need to act leniently and rely on a minority opinion, in particular where we are hoping that other witnesses will appear soon so that he may remarry . . . Who can be sure that this is an . . . hour of emergency, since possibly this leniency exists only when the young woman is predisposed to licentiousness, . . . but if we know that she is a virgin and moral . . . she is unlikely of this (and marry another man which is against Halakhah –AYW), it is conceivable to say that this is not viewed as “as hour of emergency” and why should we endorse this view and . . . be the subject of admonishment?",
+ "Dealing with the matter of igun (get recalcitrance) and the fear of promiscuity involves a sha’at ha’d’hak, an hour of emergency we may invoke those authorities who rely upon a minority opinion in a biblical matter dealing with uprooting the issur of eishit eish, the prohibition of a married woman such as our situation of voiding the marriage of a modern-day agunah by invalidating witnesses to the act of kiddushin. In particular, given that in our case we are dealing with a serious domestic tragedy, with a young woman who as yet had no children and given her traditional lifestyle (rather than Orthodox) we have a fear that she may become licentious. Moreover, it is a sha’at ha-dehak in order to prevent the possibility of mamzerut should she remarry without rabbinic approval. Consequently, despite the fact that the majority of Poskim reject the Ritva’s position, one of the bases of our psak din of bittul kiddushin, voiding the marriage hinges upon the acceptance of his position, albeit a minority one.",
+ "In our case, there was an adult Jewish male who was unrelated to the couple who stood under the huppah. Both the ineligible witnesses and the eligible one saw each other under the huppah. We were unable to ascertain whether the witness was a Torah-observant Jew at the time of the wedding ceremony or afterwards. Even if he was Torah-observant, in accordance with Ritva and others his testimony is invalid as well as the relatives who are invalid on a rabbinic level due to the fact that the eligible witness was not designated as a witness.",
+ "Decision",
+ "Even though many Poskim contend that there is a mesorah (tradition) that in devar ervah (in matters of sexuality) we must factor into consideration all the strict views, nevertheless many Poskim contend that in a situation of igun one is to rule leniently. As Rabbi Sinai Sapir states,",
+ "In matters such as those involving agunot, it is improper to collect stringencies. . . . In this situation, “the strength of leniency is more powerful”, since we are concerned with halakhot involving lives . . .",
+ "Seemingly, following in the aforementioned mesorah that under certain conditions a minority opinion ought to be determinative and release an agunah from her chains, we ought to be able to invalidate the one eligible witness based upon the minority view of Ritva.",
+ "However, in light of the fact that some Poskim argue that Ritva’s position may be only utilized as a senif to invalidate a kiddushin—because it is rejected by others or has been demonstrated by others to be a questionable halakhic position—and therefore may be only appended to other halakhic arguments in order to buttress a specific ruling of bittul kiddushin that would invalidate a kiddushin, is there any additional ground to invalidate the one eligible witness?",
+ "Firstly, the Halakhah is possibly in pursuance to Shulhan Arukh and many Poskim who would invalidate a kiddushin performed in the presence of one witness. Furthermore, if we accept Rema’s decision and R. Spektor’s ruling that in a situation of an agunah, the kiddushin is invalid when performed in the presence of one witness, we may employ a combination of Shulhan Arukh’s and Rema’s views accompanied by Ritva’s posture for nullifying (bittul) the kiddushin in our scenario.",
+ "Finally, since the marriage was performed publicly and the couple lived together for years there is a “kol kiddushin” (loosely translated a rumor of marriage). Lest the community assume that a wife can remarry without the issuance of a get, a get ought to be required. . Consequently, the kol should trump the fact that there was one invalid eid under the huppah and the couple should therefore be halakhically married. Following in the footsteps of other Poskim, in the wake of pesulei edut (invalid witnesses), we may nullify the kol kiddushin. Secondly, even those Poskim who contend that the kol outweighs the formal impropriety of the kiddushin will agree that in the case of an agunah the marriage may be voided.",
+ "Based upon the foregoing, in accordance with Ritva and others who would invalidate an eligible witness, in light of absence of witness designation at the wedding ceremony as well as invoking the positions of Shulhan Aruch (and others) and Rema we may void the act of kiddushin between Baruch Friedman and Aliza Friedman. Therefore, Ms. Friedman is free to remarry without receiving a get.",
+ "Final Thoughts",
+ "I.",
+ "Given that our case deals with uprooting a Biblical prohibition of eishit ish, a married woman based upon the minority opinion of the Ritva, we need to inquire whether in fact Halakhah allows one to rely upon a singular view entailing a Biblical injunction? Given that voiding the marriage of a modern-day agunah under certain conditions may entail a Biblical matter of eishit ish, this question is of reliance upon a minority opinion assumes primary significance.",
+ "As we mentioned earlier, there are Poskim who will only rely upon a minority opinion in a d’rabbanan, a matter of Rabbinic law (e.g. the case of a classical agunah “in endless waters”). In fact, as presented though R. Haviv of the latter half of the seventeenth century marshals numerous proofs from the Talmud and Poskim that one may rely upon a minority opinion in a biblical matter, nonetheless, he concludes that Poskim ha-Achronim, later decisors who live in recent generations who are “orphans of orphans” are reluctant to render any judgment, much less one that will uproot a biblical prohibition. Consequently, R. Haviv aligns himself with their approach and refuses to invoke a minority opinion in dealing with a biblical matter.",
+ "Nonetheless, based upon various Talmudic precedents, as we presented earlier, there are authorities who will rely upon a minority view in a d’oraita, a biblical matter such as the prohibition of being a married woman (e.g. our situation of voiding the marriage of a modern-day agunah by invalidating witnesses attesting to the act of kiddushin).",
+ "If in fact, the majority of aharonim, later authorities endorse the position that a minority opinion cannot be invoked in a biblical matter, then seemingly one must refrain from subscribing to the minority view of authorities who rely upon a minority view in a biblical matter? However, as we explained if following the majority view is inapplicable to Torah matters due to the fact that there is no face to face debate amongst the Poskim so from a biblical standpoint there exists a safek, a doubt what the Halakhah ought to be and it is due to a rabbinic enactment that we endorse the majority view even in matters dealing with Biblical prohibitions such as the biblical issur of eishit ish, which looms in some of the fact situations dealing with the modern-day agunah. Safek d’oraita le-humra me-derabbanan, rabbinically we rule strictly in biblical matters. As such, as we mentioned many Poskim argue that we may rely upon a minority opinion in a matter of rabbinic law.",
+ "Based upon the foregoing, subscribing to the view that one may rely upon Ritva as a shitat yahid, a minority view regarding a biblical matter may be more readily understandable and acceptable towards arriving at a halakhic decision involving a modern day agunah for one of two reasons: Either we may rely upon upon a minority opinion in a biblical matter such as the situation of a modern-day agunah. Alternatively, in light of the inapplicability of following the majority in intergenerational halakhic controversies and in view of invoking the rule of safek d’oraita le-humra me-derabbanan, as we explained earlier, we are in actuality dealing with a rabbinic matter and consequently we may rely upon a minority opinion which would void a marriage of a modern- day agunah.",
+ "Finally, relying upon this minority view of Ritva is premised upon demonstrating that there does not exist a normative halakhic resolution that rejected Ritva’s posture. The entitlement of an authority to invoke a minority position is predicated upon the fact that the Halakhah has not been established in variance to that posture, in Talmudic parlance it is known as “lo itmar hilkhita”. . That being said, if the Halakhah has been formally resolved, “itmar hilkhita”, a decisor is precluded from relying upon the minority opinion.",
+ "Itmar hilkhita has been understood within the context of three different literary sources of the corpus of Halakhah. Firstly, should the Talmud have ruled explicitly in favor of a majority view, one cannot invoke a minority view. Since the Talmud has not endorsed the majority view, in our situation, therefore a Posek may rely upon the minority view of Ritva if there is “a she’at ha-dehak”. Similarly, if Shulhan Arukh, the classical restatement of Halakhah and many Poskim have staked out a position against the minority position, one may invoke a minority position in a she’at ha-dehak even in a matter entailing a Biblical injunction. In our case, though SA HM 36:1 as well as many authorities reject Ritva’s view, in accordance to the above cited authorities one may still rely upon the minority view. The basic premise of the foregoing presentation is that we are dealing with a shitat yahid, a minority view attributed to Ritva.",
+ "The question is a shitat yahid a singular opinion of an authority or may it reflect the view of a few decisors who are in variance with the majority of Poskim? In other words, if the latter position is advanced, the result would be that if there exists a singular opinion one may not rely upon the minority view. A cursory glance of the Mishnaic and Talmudic sources would indicate that we are dealing with a view of “a lone ranger” rather than “a me’ut ha-Poskim”, a minority of authorities. Consequently, R. Schneersohn and R. Yosef conclude that even those decisors who will not rely upon a minority opinion concerning a Biblical matter in a state of emergency will invoke the view if it is supported by a minority of decisors. Consequently, given that Ritva’s view has been subscribed to by a few others, therefore we can rule in pursuance to their view in our case dealing with a Biblical injunction of eishit ish.",
+ "Alternatively, given that there are some authorities who claim that the halakhic rule that when there exists a state of emergency one may rely upon a minority view which encompasses me’ut ha-Poskim, i.e. a minority of authorities rather than a singular opinion, therefore as we explained there are grounds to invoke Ritva’s view who was endorsed by other decisors in a situation of a Biblical proscription such as the modern day agunah. Finally, we may rely upon Ritva’s opinion in a biblical matter due to the fact that there are a minority of decisors who subscribe to his position.",
+ "In sum, we may rely upon Ritva’s posture for one of three reasons: Either we may rely upon upon a minority opinion concerning a biblical prohibition such as the freeing a modern-day agunah without a get without contravening the Biblical prohibition of eishit ish. Alternatively, in light of the inapplicability of following the majority in intergenerational halakhic controversies and in view of invoking the rule of safek d’oraita le-humra me-derabbanan, we are in actuality dealing with a rabbinic matter and consequently we may rely upon a minority opinion which would void a marriage of a modern- day agunah. Finally, we may rely upon Ritva’s position in a biblical matter due to the fact that there are a minority of Poskim who agree with his view.",
+ "II.",
+ "A review of many teshuvot and the few piskei din of the rabbinical courts under the Israeli Chief Rabbinate that mandate bittul kiddushin (voiding a marriage), one encounters that the issuance of the piskei din is contingent upon third party rabbinic approval. A plausible explanation for desiring rabbinic approval is the following: The kiddushin (betrothal) relationship establishes a personal status, namely, that of a mekudeshet (a woman designated for a particular man and prohibited to all others). The establishment of this personal status known as ishut renders both spouses subject to various prohibitions, e.g. sexual relations with various relatives become prohibited. On one hand, a refusal to invoke bittul kiddushin means that the issur continues to exist; on the other hand, the implementation of bittul means that the issur no longer exists and the wife, in the case of an agunah, is permitted to remarry without the issuance of a get. Prohibiting bittul kiddushin in part is due to the lurking fear that the woman is an eishit ish and therefore should we permit her to remarry she would be living in sin and should she bear children her offspring will be mamzerim. As such, given the concern that the wife has a hezkat eishit ish (is presumptively married), a beit din may seek the approval of other(s) prior to rendering a decision to void a marriage.",
+ "The emerging question is whether the seeking of outside rabbinic approval is a nohag (a practice) devoid of any halakhic significance or if it is to be viewed as a halakhic norm, which requires an arbiter to seek approval. If the answer to our question is that it is to be understood as a halakhic obligation devolving upon the arbiter that means every arbiter, regardless of his rabbinic stature, is mandated to find rabbinic endorsement. Moreover, given the paramount concern to avoid undermining the presumption that the wife is a married woman, one would expect that a beit din would look for “a second opinion” in other areas of ishut (family relations) that impact upon the hazakah of eishit ish.",
+ "But in fact this is not the case. For example, there exists certain grounds for a Jewish divorce known in modern Hebrew parlance as “ilot gerushin”, which may serve as a basis for beit din to coerce a husband to give a get to his wife. As we know, the get must be executed with the consent of both the husband and wife. Should a beit din fail to have an adequate basis for coercing a husband to give a get, the net result is a “get meuseh” (a coerced get), which is null and void according to the majority of Poskim and she remains a married woman until a proper get is executed. Moreover, there are Poskim who rule strictly in accordance with a minority view and authorized get coercion only in the cases mentioned in the Mishnah and the Talmud. Adopting this approach, should a posek or beit din coerce a husband to give a get in a particular fact pattern which fails to correspond to one of the cases mentioned in the Mishnah and Talmud, the subsequent execution of a get would run afoul of the strictures of a get me’useh and the wife would still be viewed as a married woman. Despite the potential severity of issuing a decision to coerce a get that may result in a woman living in sin and proliferating mamzerut in the Jewish community, notwithstanding some authorities, many Poskim throughout the ages render get compulsion orders without seeking a rabbinic endorsement! Given the fact that the ramifications of R. Moshe Sofer’s and R. Yosef Elyashiv’s positions in the overwhelming majority of divorce cases precluded the possibility of coercing a get, in light of the seminal influence of these two authorities’ judgments, it is a wonder that various Poskim and Israeli dayanim issued a get compulsion order without receiving prior rabbinic endorsement! Moreover, in light of those authorities who adopt the position memorialized in Teshuvot ha-Radvaz 1228, Teshuvot Zemah Tzedek, EH 226 and dating back to the time of the Rishonim that a compulsion order entails the giving of a get via hafka’at kiddushin (annulling the kiddushin) one is surprised that there is no mention of the requirement of “a second opinion”. In fact, the focus of discussion amongst the international halakhic experts on get coercion centers upon whether one requires a beit din or not. Absent from the limmud (the study) is whether there exists a requirement for a posek (Poskim) to seek rabbinic endorsement. There is no such discussion because there is no such halakhic requirement! As recently as six years ago, Dayanim Sheinfeld, Abergil, and Toledano handed down a ruling to coerce a get due to the fact that the husband had been obligated to give a get and continued to be me’agein his wife. Here again, there was no mention of the need for “a second opinion”.",
+ "Another example is the propriety of dissolving a civil marriage between two Jews without the issuance of a get. Though in pursuance to the majority of authorities a get is required only if a Jewish couple married halakhically (“kedat Moshe ve-Yisrael”) and consequently there ought to be no requirement for the issuance of a get if the couple married only civilly, there are various Poskim who claim for various reasons that one requires minimally a get mi-safek (due to doubt). Here again, we have a question regarding her status as “an eishit ish” and yet in contemporary times there are many Israeli rabbinical court decisions where a get is not mandated in a civil marriage and yet there is no mention that outside rabbinical support must be sought prior to rendering a decision.",
+ "Given that prior to rendering get compulsion orders and the dissolution of civil marriage ties without a get there is no requirement for seeking rabbinic endorsement, why do many authorities void a marriage based upon a halakhic impropriety in the kiddushin only provided there is rabbinic approval? It would seem the genesis of this practice of seeking rabbinic endorsement began with the Poskim who freed the classical agunah where the husband has disappeared and his whereabouts are unknown. For centuries, Poskim enlist the support of an outside rabbi(s) prior to assisting a classical agunah. Given that this practice was implemented when dealing with the classical agunah, the practice emerged upon addressing the plight of the modern-day agunah.",
+ "But here again concerning voiding a marriage of a modern-day agunah, it is a nohag (a practice) devoid of a halakhic basis rather than a halakhic norm that obligates the receipt of support under all circumstances. Therefore, it is of no surprise to encounter that there were some authorities who issued rulings regarding the propriety of a particular kiddushin without having outside rabbinic endorsement. Given that this was a nohag, it is unsurprising that sometimes Rabbis O. Yosef, S. Messas, and S. Amar seek outside halakhic approval and sometimes they refrain from getting approval.",
+ "In sum, concerning matters of eishit ish, notwithstanding some authorities, according to most Poskim it remains a practice rather than a halakhic duty to enlist the support of an outside rabbinic authority (ies).",
+ "On the other hand, in situations when dealing with scenarios that entail arriving at a decision based upon engaging in “medameh milta le-milta” (reasoning by analogy), there is a clear mandate from the Talmud and classical sifrei psak (restatements) that under certain circumstances a dayan must seek halakhic counsel prior to handing down a decision. Such a duty not only devolves upon a dayan who is rendering a decision in monetary matters but equally extends to a dayan who is dealing with issur ve-heter, such as hezkat eishit ish. Therefore, an arbiter addressing a case of igun that involves “medameh milta le-milta” would be mandated to seek rabbinic consent prior to handing down a decision. On the other hand, according to the Talmud and classical sifrei psak, if we are dealing with a beit din panel composed of three dayanim dealing with an igun situation, there would be no such requirement since each dayan in effect will be presenting his reasoning to his colleagues and therefore there is no requirement to look for rabbinic consent prior to issuing their ruling.",
+ "Alternatively, according to some Poskim, an arbiter’s inquiry into the works of his predecessors and contemporaries which address the same fact pattern posed to the decisor may be akin to receiving “a second opinion” of a scholar of rabbinic stature."
+ ],
+ "c) A non Orthodox mesadeir kiddushin and ineligible eidei kiddushin": [
+ "The Facts of the Case",
+ "On May 26, 2013, David Reiss married Deborah Stone. At the wedding, the mesadeir kiddushin (the officiating rabbi) was a Conservative rabbi. At the huppah (wedding ceremony) there were two adult Jewish males who were designated to serve as eidei kiddushin (witnesses for the act of betrothal). Upon inquiry, we were able to determine that the married couples, as well as both men, were non-Orthodox. After being civilly divorced, on August 1, 2014 Deborah requested her get. To this very date, David has refused to give her a get.",
+ "Discussion",
+ "The role of the mesadeir kiddushin is to supervise that the entire gamut of halakhot that directly relate to the marriage ceremony are fully complied with by the hatan (groom) and kallah (bride). For example, the rabbi must inquire from the hatan whether the ring that he will be giving to the kallah at the ceremony belongs to him. If the hatan is young and his father is present at the ceremony, the rabbi must ask the father if the ring was given to his son as a gift. Prior to the giving of the ring, one must ask the witnesses whether the ring that will serve as the kinyan (a symbolic act of undertaking) is worth at least a perutah (an amount of acknowledged worth), whereby the woman and the witnesses become aware of the ring’s value. In other words, there is a “a meeting of minds” via the giving of the ring by the man to the woman that the Jewish man has kavanah (intention) to be mekadesh (betroth) his prospective wife, who together are brokering a marriage le-sheim kiddushin (for the purpose of becoming halakhically engaged to each other and to the exclusion of others in accordance with the dictates of Halakhah). Moreover, the man must recite the engagement formula to his prospective wife—“harei at mekudeshet li be-taba’at zo, ke-dat Moshe ve-Yisrael”. To insure that the text is pronounced correctly and clearly by the man and in order that it be heard by the two witnesses, it is the rabbi’s responsibility to recite the formula along with the prospective hatan. It is important that the rabbi communicates to the prospective couple the import of the giving of the ring, the parties’ intention, the prescribed text, and the presence of two witnesses in order that the man and woman be conscious of the fact that there is a halakhic-legal event that will allow the couple to embark on a Jewish marriage rather than simply participating in a ceremony. Given the pivotal role of the mesadeir kiddushin, it is unsurprising to find that in the Talmud it states that any rabbi who is not versed in these matters should not offer his services. In the event that the kiddushin was officiated by an individual who is not well-versed in the matter, a second kiddushin should be executed by a knowledgeable rabbi.",
+ "Being the officiating rabbi entails many more responsibilities, such as reviewing the text of the ketubah (the marriage agreement), that the couple be aware which individuals are the witnesses, and telling the witnesses to observe the giving of the ring.",
+ "A sina qua non to create the ma’aseh kiddushin (the act of halakhic betrothal) is the presence of two adult Jewish males who are qualified (i.e. unrelated to the hatan and kallah), are Torah observant, and will testify that the hatan gave a ring to the kallah. If needed, these two eidim (witnesses) may be called upon to serve as edei re’ayah to confirm in a beit din that in fact the execution of kiddushin was done in pursuance to the dictates of halakhic marriage law. Moreover, these two individuals serve as eidei kiyum who, by dint of their presence and participation under the huppah, impart validity to the act of the kiddushin. Whereas the mesadeir kiddushin serves as the mashgiah (the supervisor), the two witnesses are an integral part in establishing the kiddushin. In their absence, or if they are present but they are ineligible to testify, the act of kiddushin cannot be created. Based upon our inquiry, both eidei kiddushin were non-Orthodox and therefore their testimony is invalid and the act of kiddushin was never consummated.",
+ "Even in the absence of two witnesses or in the presence of two disqualified witnesses, there is the Hatam Sofer’s view which is cited by Pithei Teshuvah, as well as Havot Yair’s and Avnei Mi’luim’s position that Torah-committed Jews who observed the kiddushin ceremony yet did not see the actual mesirah (the giving) of the ring by the hatan to the kallah and the hatan’s recitation of the kiddushin formula may serve as “anan sahadi” (we are the witnesses) for the kiddushin. And even the presence of Jews who are not Torah-observant as onlookers of the kiddushin ceremony will not invalidate the testimony of the other Torah-observant Jews who are onlookers there. Given that at this wedding, the guests at the ceremony included both Torah-observant and non-observant Jews, we may seemingly rely upon the aforementioned position that the act of kiddushin has been established, despite the disqualification of the designated witnesses.",
+ "Nonetheless, many Poskim (authorities of Halakhah) of earlier generations reject this approach. Among the Poskim in contemporary times who align themselves with this view is Rabbis Elyashiv, O. Yosef, O. Weiss and Tzion Boaron. Moreover, invoking “anan sahadei” is predicated upon the fact that the mesadeir kiddushin is Torah-observant in general and proficient in the halakhot of seder kiddushin ve-nissuin (the engagement and marriage ceremony) in particular. For example, the mesadeir kiddushin executed a double ring ceremony where the hatan gave a ring to the kallah and recited the prescribed halakhic text for kiddushin, “harei at mekudeshet li . . . ve’yisrael” and in an expression of reciprocity the kallah gave a ring to the hatan and stated “ani le’dodi ve’dodi li”. Such an exchange of rings, according to some Poskim is against Halakhah. Therefore, the absence of two eligible witnesses and the execution of a double ring ceremony for kiddushin in our case preclude one from invoking “anan sahadi”.",
+ "Despite the halakhic shortcoming of the two ineligible witnesses, nevertheless may one invoke the rule of “ein adam oseh be’ilato be’ilat zenut” (a Jew does not engage in sexual relations as an act of illicit fornication)? Consequently, the act of biah (intercourse) would consummate the marriage. Applying this rule presumes that the couple were religiously committed to a Torah way of life, including compliance with the halakhot of family purity at the time of the marriage. The mere living together as a husband and wife le-sheim ishut of kiddushin (to be conscious that the both are living together to the exclusion of others based upon a halakhic imperative rather than cohabitating with each other devoid of halakhic intent for the purpose of kiddushin) is the desideratum. It is our understanding that at the inception of marriage, the man and woman were Conservative Jews and therefore the rule of “ein adom oseh be’ilato be’ilat zenut” is inapplicable.",
+ "Decision",
+ "Given that the two witnesses at the kiddushin who can testify to a valid netinah (giving) of a ring by the hatan to the kallah as well as the hatan’s pronouncement aloud of the amirah (“harei at . . .”) were nonobservant as prescribed by Orthodox Jewish law, the act of kiddushin was never consummated. Therefore, Deborah Stone is free to remarry without receiving a get.",
+ "Final Afterthoughts",
+ "We have voided the above marriage due to the halakhic impropriety of the two witnesses who are an integral to the establishment of a halakhic marriage.",
+ "The question is whether we could have invalidated the marriage by dint of the fact that the mesadeir kiddushin is a Conservative rabbi? In other words, ought we scrutinize on a case-by-case basis whether the marriage was executed properly or it sufficient to invoke a hazakah (a presumption) that a marriage performed by a Conservative rabbi is invalid unless there are facts that would indicate to the contrary? To focus upon this issue, let’s understand how halakhic authorities viewed the propriety of a Reform rabbi as a mesadeir kiddushin and then we will be better able to address our scenario of a Conservative rabbi who officiated at a wedding ceremony.",
+ "Our brief summary of the role of the mesadeir kiddushin is buttressed by numerous sources found in the restatements of Halakhah, commentaries, and responsa literature. Clearly, the officiating rabbi ought to be molded not only by the imperatives found in the Five Books of Moses, Prophets, and Later Writings, but equally what is stated in the Oral law. To state it differently, functioning properly at a wedding ceremony means that the rabbi accepts the traditional view that establishes an organic connection between the Written Law and Oral Law, where the latter is a concomitant elucidation of the former rather than a subsequent modification. A cursory glance of Reform theology would demonstrate that the Oral Law and its divine origins aren’t recognized. Consequently, it is unsurprising that in a series of teshuvot (responsa) authored between 1957 and 1969 by R. Moshe Feinstein, he labels adherents of the Reform movement as nonbelievers who neither believe in the divinity of Torah (Torah min ha-Shamayim) nor fulfill Biblical as well as rabbinic prohibitions that emerge from the rabbinic interpretation of Written Law and Oral Law. Absent evidence to the contrary, a marriage conducted by a Reform rabbi who is theologically, ideologically, and—in terms of religious observance—out of sync with the norms of Halakhah is null and void. In other words, there is a hazakah (a presumption) that any wedding performed by a Reform rabbi is null and void.",
+ "However, as noted by others, there is a second approach endorsed by Rabbis Schwadron, Grossnass, and Felder that investigate the propriety of the ceremony rather than focusing upon the identity of the mesadeir kiddushin.",
+ "One of the differences between adopting one approach in lieu of the other is when there is a safek (a doubt) regarding one of the facts. For example, let’s say that it isn’t factually clear that the two witnesses are invalid. In such a situation, if one adopts the approach that there is a presumption that a Reform rabbi does not meet the requirements as a mesadeir kiddushin, if there then exists a doubt, we follow the presumption and invalidate the kiddushin. On the other hand, advocating the approach of evaluating the matter on a case-by-case basis propels us to the conclusion that when there is a safek, we act stringently and therefore we conclude that the marriage is valid and requires a get mi-safek (a get due to an existing doubt).",
+ "The question is whether one can extrapolate the two varying approaches employed concerning a Reform Jewish wedding to our scenario of a Conservative Jewish wedding. Seemingly, the fact that numerous adherents to the Conservative movement have aligned themselves ideologically with the tenets of “Historical Traditional” Judaism would place them in the camp of those Jews who reject the divinity of Torah. From their perspective, the Oral Law represents a stage in the evolutionary process of Judaism that finds itself in a state of flux and therefore we may choose whether we want to accept the authority of the Talmud and/or the rulings of post-Talmudic decisors. In fact, there are Conservative rabbis who do not observe the dietary laws of kashrut or will ride to synagogue on Shabbat. On the other hand, in 1980’s as R. Feinstein astutely notes, there were Conservative Jews who are Shabbat observant and eat kosher and therefore R. Feinstein concludes that should such Conservative rabbis officiate at weddings, there exists a doubt whether their kiddushin are invalid. As such, unlike Reform rabbis whose ideology and observance places them beyond the pale of halakhic Judaism, Conservative rabbis tend to fall into different camps. Therefore, if a wedding is performed under the auspices of a Conservative rabbi, one cannot invoke a hazakah that the marriage is invalid absent any evidence to the contrary. Aware of this reality, this panel scrutinized if the wedding ceremony which was officiated by a Conservative rabbi procedurally complied with the dictates of Halakhah rather than focusing upon the religious affiliation of the mesadeir kiddushin."
+ ],
+ "d) \"If he acts improperly, we may act improperly\"": [
+ "Bayla Stein v. Levi Stein",
+ "On June 1, 1992, Bayla (the Tova’at) and Levi (the Nitva) were married. In the wake of the issuance of an order of protection filed on January 9, 2011, which directed the Nitva to refrain from assaulting, stalking, harassing, etc. his five children, the Nitva was directed by a civil agency to leave the marital home. Despite the fact that the Tova’at requested a get from the Nitva and summoned him regarding this matter to appear at another beit din, the Nitva nonetheless failed to appear and remained recalcitrant regarding giving her a get. On September 8, 2014, the rabbinical court issued the following psak din:",
+ "Harhakot de-Rabbeinu Tam (“isolating measures”)",
+ "“Harhakot de-Rabbeinu Tam” for a wife who pleads “ma’is ali” (he is repulsive to me) and the husband refuses to divorce her:",
+ "To all our brothers of the house of Israel in every place:",
+ "Appearing in front of us was Levi Stein with his wife Bayla with her argument of “ma’is ali”. However, the aforementioned man refuses to divorce her because he wants to be me’agein her (chain her to him –AYW) and pain her.",
+ "Therefore, this beit din decrees with a severe oath (be-alah hamurah) that every man and woman of the house of Israel is forbidden to speak with him, to do business with him, to circumcise his son, to provide him with food and drink, to interact with him, to visit him during his time of illness and to bury him in a Jewish cemetery.",
+ "It is our understanding that the above psak din informs us that upon hearing the evidence of both parties, the beit din arrived at the conclusion that there is merit in Tova’at’s argument that she is repulsed by him. That being said, in light of such a plea, following in the footsteps of Rabbeinu Tam, the beit din listed specific measures of social isolation that may be meted out to the husband. To date, the Nitva has continued to refuse to give a get to the Tova’at.",
+ "Given Nitva’s continuing get recalcitrance, the Tova’at has submitted her case to our beit din. The threshold question is a procedural. Given the fact that the matter of the get has already been addressed by another beit din, is this panel entitled to revisit the matter? Absent any knowledge that the beit din erred, clearly the earlier beit din’s decision is final. In the event that the review of the case entails an error, should another beit din seek to revisit the case, it is their duty to hear the entire presentation of the parties as well as the testimony of the witnesses prior to arriving at a decision.",
+ "That being said, we are dealing with an issue of a get that entails severing the marital ties of eishit eish, a matter of issura (a ritual prohibition) and we are seemingly mandated to refrain from revisiting such an issue once it has been resolved by a rabbinic authority. As the Talmud instructs us in two places,",
+ "“A scholar who is proscribed something- his colleague may not sanction it” or “If one inquires from a scholar and he states it is impure, he should ask a scholar and he will say it is pure . . .”",
+ "Nonetheless, this Talmudic dictum was established in the context of disputes dealing with sevara (halakhic logic). But dating back to the thirteenth-century Ashkenazic tradition that decision-making has been expended and is ensconced in studying our books, in R. O. Yosef’s words, “the books are our masters”, and therefore the rule is inapplicable. By dint of the dissemination of hiddushin, sifrei psak, and teshuvot, one resolves issues without taking cognizance whether a previous authority had already addressed the same case. Even if there are numerous Poskim who would contend that the rule still remains applicable in contemporary times, there are authorities who claim that the rule is inapplicable in cases of igun. Consequently, regardless of whether the rule is employed today, there is a sound basis for abstaining from invoking it in our case, which addresses the plight of an agunah.",
+ "That being said, we need to elucidate the basis for the earlier beit din’s recognition of the wife’s plea for “mais ali”. Secondly, if the claim is valid, will it serve as grounds for invoking the isolating measures as propounded by Rabbeinu Tam and invoked by the rabbinical court?",
+ "Expounding upon the Talmudic discussion whether a moredet (lit. a rebellious wife) who is repulsed by her husband can be forced to live with her husband, Rambam states,",
+ "A woman who refuses to engage in conjugal relations with her husband is called a rebellious wife. [The beit din –AYW] inquires from her the reason why she is rebelling. If she says “I find him repulsive and cannot voluntarily engage in conjugal relations with him,” the beit din forces him to divorce her immediately because she is not a captive woman who must have sexual relations with one whom she despises . . .",
+ "For Rambam, a husband cannot coerce a wife to have sexual relations with him. And in the event that she is repulsed by him, Rambam rules that a beit din ought to coerce (“kofeh”) the husband to give a get to his wife. Many authorities have endorsed his position and some claim that the majority of Poskim endorsed his opinion.",
+ "However, in the wake of a wife’s “mais ali” plea, some authorities such as Rabbeinu Gershom, Rabbeinu Hananel, Rashi, Rabbeinu Tam, Ba’al ha-Maor, Ittur, Ramban, Rashba, Meiri, Rosh, Ritva, Maharil, Ran, Nimukei Yosef, and Shulhan Arukh opine that a husband cannot be forced by a beit din to give a get. Nonetheless, some of these authorities would claim that there is a hiyyuv le-gareish (an obligation upon the husband to divorce his wife).",
+ "The threshold question is whether or not in our scenario there were grounds to contend that the wife advanced a plea of “ma’is ali”?",
+ "After undergoing a hysterectomy in 2000, the Nitva turned to the Tova’at and exclaimed, “You are not a woman anymore, you can’t have any children!”",
+ "Though the Tova’at had spoken to the panel about various alleged shortcomings in the Nitva’s persona, such as failing to financially support the family, emotionally abusing his wife, failing to be involved in raising their children, gambling, and engaging in illicit affairs, it was this comment which mortified her and clearly left an indelible ink on her psyche. Subsequent to this interaction and her subsequent realization that he was possibly engaging in illicit affairs, the Tova’at chose to refrain from engaging in conjugal relations with him.",
+ "At first glance, the Nitva’s comment and her decision to live at least sexually “separate lives” can be construed as “ma’is ali”. However, Rambam and others always speak in terms of a wife who articulates the words “ma’is ali” and that did not transpire here. The question is whether there is a requirement to express the plea in such fashion or does a wife’s words and/or behavior that reflect her revulsion towards her husband suffices for us to conclude that her words and conduct are equivalent to her stating “ma’is ali”? Authorities note that as long as her words and/or behavior convey the idea that she is repulsed by him, that would be sufficient. For example, if she pleads that she hates him, no longer wants to remain with him, or his actions (such as abuse) demean her, we can state that she is constructively raising the argument of “ma’is ali”.",
+ "Upon reflection, the words of Rambam are clear. We may coerce a get in the case of a plea of “ma’is ali” provided that due to his repulsive behavior, she cannot live sexually with him. Though others point out that the plea may encompass hatred due to other improper behavior or simply an unwillingness to remain married to him such as age difference, we need not address the parameters of this plea. Given that in our scenario, the Tova’at’s immediate response was to refrain from engaging in conjugal relations, she was in fact pleading the “ma’is ali” plea in a Maimonidean fashion. In other words, his alleged comment and alleged infidelity inexorably led to the Tova’at’s decision to refrain from having sexual relations with him. In effect, the constructive plea of “ma’is ali” is interconnected to her inability to continue living with her husband.",
+ "Given that the Tova’at has advanced an “amatla mevureret” (a clear pretext) why she abhors his conduct, we therefore do not need to inquire whether for the plea of “ma’is ali” to be accepted there must be an “amatla mevureret”. However, the issue is whether such reasons must be verified via the testimony of two eligible witnesses. Notwithstanding some authorities who require testimony to assess the veracity of her claim, Tosafot Rid, Avnei Miluim, and Helkat Mehokeik do not mandate such verification. Upon listening to the pretext of the plea and awareness of the circumstances, a panel must sincerely believe that she is raising the claim of “ma’is ali” for substantive reasons relating to her marriage rather than as a ploy because she has an interest in another man. Or if it is clear that she is waiving her right to the value of her ketubah, we can impart credence to her plea of “mais ali”. In a recent decision, the Beit Din ha-Rabbani ha-Gadol ruled that we follow the view of those decisors who require that a beit din discern whether in fact the plea is sincere and genuinely relates to the reason(s) for demanding the dissolving of the marital ties. Based upon the foregoing, given that she never advanced a claim for her ketubah and has no intentions whatsoever to pursue any monetary claims against her husband either in beit din or in civil court (should a heter arkaot, permission to litigate in civil court be forthcoming), we arrived at the conclusion that her “ma’is ali” plea is credible. Since we were unable to verify if in fact he was silent, her readiness to waive any and all monetary claims imparted credence to her plea of “ma’is ali”.",
+ "Subsequent to his conduct, had the Tova’at separated from him by either his departing the marital home or moving elsewhere, we would have had to address whether upon submitting a claim of “ma’is ali” a beit din can obligate the husband to give a get or not. However, to our surprise, the couple only separated a decade later and no explanation was communicated to us by the Tova’at why she remained in the marriage for another ten years. Moreover, the reason for the separation at that time was due to a directive of child services that he must leave the marital home due to neglect of his children. Consequently, in light of his wife’s claim and the fact that it has been three years since he left the marital home and there was no chance for shalom bayit (marital reconciliation), we rule that “hiyuv le-garesh” (a duty to divorce) that the husband give a get to his wife.",
+ "Our utilization of “hiyuv le-garesh” as a vehicle of get enforcement is to emphasize the Talmudic point that “one who transgresses the ruling of the rabbis is to be labeled a transgressor”. Or as Poskim state in the context of addressing divorce cases, “it is a mitzvah to listen to Torah scholars”. Moreover, in cases where we cannot coerce a get, the community may show its displeasure and label him a sinner. Labeling a transgressor of Halakhah as “a sinner” in most cases will not propel a husband to give a get to his wife. The question is whether there are grounds to invoke economic and social sanctions against him. As we noted at the outset, in the case before us, the other beit din had ruled:",
+ "“Harhakot de-Rabbeinu Tam” for a wife who pleads “ma’is ali” (he is repulsive to me –AYW) and the husband refuses to divorce her:",
+ "To all our brothers of the house of Israel in every place:",
+ "Appearing in front of us was Levi Stein with his wife Bayla with her argument of “ma’is ali”. However, the aforementioned man refuses to divorce her because he wants to be me’agein her (chain her to him –AYW) and pain her.",
+ "Therefore, this beit din decrees with a severe oath (be-alah hamurah) that every man and woman of the house of Israel is forbidden to speak with him, to do business with him, to circumcise his son, to provide him with food and drink, to interact with him, to visit him during his time of illness and to bury him in a Jewish cemetery.",
+ "Though in accordance with Rabbeinu Tam, in the wake of a wife’s ma’is ali plea, one cannot coerce a husband to give a get, numerous Poskim nonetheless understood that Rabbeinu Tam obligates a get under such circumstances. In the absence of sanctioning coercion, there is a hiyyuv le-garesh (a duty to give a get), and therefore Rabbeinu Tam introduces these harhakhot in order to induce the husband to give a get to his wife. Nonetheless, in contemporary times, Israeli rabbinical courts sanction the use of these isolating measures even if a panel would rule mitzvah le-garesh. The mandating of these harhakot, as R. Herzog observes, serves as an avenue to facilitate that a husband fulfills the mitzvah to divorce his wife.",
+ "And given that the other beit din refrains from articulating the grounds for invoking these harhakhot, we are assuming that it was not staking out a position regarding the level of get enforcement in our case, namely whether hiyyuv le-garesh, mitzvah le-garesh or even recommending divorce would apply in our situation. And we have followed in the footsteps of the Israeli battei din to mandate such sanctions in light of our ruling of hiyuv le-garesh.",
+ "The outstanding question is what is the basis of invoking such sanctions?. As we know, the dissolution of a marriage requires the voluntary agreement of both spouses; failure of one party to assent to the divorce precludes execution of the get. Coercing a recalcitrant spouse to either give or receive a get produces a get that is arguably invalid, i.e. a get me’useh. As such, ought a beit din mandate the implementation of these harhakhot to effectuate get compliance lest these measures be viewed as coercive and resulting in a get me’useh? The isolating measures introduced by Rabbeinu Tam have been characterized by others as “meniat tovah” (withholding a benefit). Is withholding a benefit from a recalcitrant husband tantamount to coercing the delivery of a get? Following in the footsteps of the Gaon of Vilna, since the husband has a choice to move to another place and thus be accorded these benefits and the application of the harhakhot are not directed at the body of the recalcitrant husband, therefore their implementation does not entail coercion. Furthermore, Hazon Ish introduces a third reason for validating the propriety of these harhakhot, namely that all the sanctions entail “shev ve-al ta’aseh”. In other words, the measures involve refraining from certain types of conduct such as abstaining from burying the husband or interacting with him. Abstention from behavior isn’t construed to be coercion. Moreover, even R. Yosef Ibn Lev, who claims that withholding a benefit constitutes a form of coercion, would mandate these sanctions in certain extenuating circumstances when get compulsion was not an option.",
+ "Finally, if one contends that these measures that attempt to withhold benefits from the recalcitrant husband are coercive in nature, then prior to imposing any harhakot, a beit din must assess any and all pressures if they rise to the level of being intimidating and coercive. But in fact, our halakhic sources have been meticulous in defining what constitutes coercion or not. Whatever is labeled coercive will generate a situation of a get me’useh if applied. And those that have not been identified as coercive do not result in a get me’useh.",
+ "In fact, Dayan Uriel Lavi, formerly av beit din (presiding dayan) of Tzfat Regional Beit Din and presently av beit din of the Jerusalem Regional Beit Din astutely observes that Rabbeinu Tam views the measures through the prism of how the community ought to relate to get recalcitrance without even suggesting the need to ascertain if these sanctions are coercive. As Rabbeinu Tam notes,",
+ "That they will be unable to speak with him, engage in business with him, to host him or feed him or to drink with him . . . to visit him when he is sick . . . if he will not divorce and allow this young woman (to be free –AYW), this does not constitute coercion. If he wants to fulfill it, he will not be flogged by this excommunication but we will separate from him.",
+ "If in fact the focus was whether such measures were coercive or not, there would have been no need to accentuate the differences between excommunication that impacts upon the body and economic and social sanctions that harm the individual indirectly. Furthermore, there is no advice being given by Rabbeinu Tam that there is a need to assess whether these isolating measures constitute coercion and therefore outlawed.",
+ "A similar understanding of these harhakhot is presented by R. Mordekhai Yaffe, who observes,",
+ "If a beit din perceives . . . that there is a value for the woman in the matter such as if she pleas “ma’is ali” and the like . . . and even if this (is not one of the examples –AYW) that we force a husband to divorce, nonetheless, beit din may impose a herem (social shunning –AYW) . . . that they will not be permitted to speak and engage in business with him . . .",
+ "Others such as Tashbetz, Beit Ephraim, and Seder Eliyahu argue that the determining factor is whether coercive measures such as corporal or financial duress that would invalidate the get have been implemented rather than assess whether the husband was pressured due to “oneseh de-nafesheih” (self-imposed duress), harhakhot, or a third party. A similar line of argumentation has been advanced in contemporary times by Israeli battei din. As one beit din states,",
+ "The majority of Poskim opine that the harhakhot of Rabbeinu Tam are not subsumed in the category of herem and niddui (forms of social shunning –AYW). Whereas herem and niddui are directed vis-a-vis the person (the recalcitrant husband –AYW) and impact the husband himself, the harhakhot of Rabbeinu Tam are addressed to the community rather than the husband and primarily concern the abstention of members of the community from conferring benefit to the husband by distancing themselves from him. As such, since we are not dealing with ones (duress), we well understand that if the isolating measures are imposed, Rabbeinu Tam would agree that any subsequent execution of the get would be valid ex post facto.",
+ "Notwithstanding a mesorah that will not mandate the employment of harhakot when there is a plea of “ma’is ali”, in the wake of the Tova’at’s plea of “m’ais ali” that has resulted in the absence of conjugal relations and given her “igun” situation, we obligate the giving of a get and in the event the get fails to be forthcoming, we endorse the LA’s beit din’s directive to authorize the community to withhold social and economic benefits from the recalcitrant husband.",
+ "Even in the absence of her ma’is ali plea, there would be a hiyyuv le-garesh and therefore grounds to invoke these isolation measures. As we know, one of the primary duties that a husband has vis-a-vis his spouse is the requirement to fulfill the mitzvah of onah (engaging in conjugal relations). Assuming the wife agrees, he may abstain from engaging in onah. In our scenario, if the Tova’at would have consented to having relations with the Nitva and was precluded from this possibility due to the civil authorities who removed him from the marital home, he would have the status of a moreid (a rebellious husband who refuses to engage in this mitzvah) and such abstention allows a wife to request that beit din coerce him to give a get.",
+ "However, if his abstinence is due to circumstances beyond his control such as being sick, then there would be no grounds to coerce (or obligating) him to give a get. Seemingly, since in our scenario, the Nitva was precluded from engaging in onah due to the civil authorities’ decision to remove him from the home, he should equally be not labeled a moreid.",
+ "Nonetheless, it is our contention that whereas being sick or feeling weak are examples of being an ones (a person under duress) and therefore a husband is exempt from engaging in sexual relations, here we are dealing with the Nitva, who committed a peshia (an act of negligence) and therefore he should be labeled as a moreid. In fact, our case should be treated no differently that the case of a husband who is imprisoned for a crime and is deemed a posheia and therefore a moreid! Our conclusion has found support in the Israeli battei din decisions as well as in teshuvot authored by Rabbis Eliezer Waldenburg and Uriel Lavi. In short, had the Tova’at wanted to resume relations and subsequently the Nitva was forced to leave the marital home by civil authorities, there would be grounds to obligate a get and invoke the harhakot.",
+ "Since the time of the issuance of the harhakhot, the Nitva has continued to refuse to give his wife her get. The question is what relief can the beit din offer to the agunah and hopefully induce her spouse to give a get. By failing to give a get, the Nitva was transgressing a prohibition to be me’agein his wife. Following in the footsteps of Talmud Yerushalmi, according to R. Moshe Feinstein, he is violating an issur gadol (a major prohibition). The fact that numerous Poskim stress the importance of finding avenues to free a woman from “the chains of igun” underscores the idea that allowing such a situation to persist finds “displeasure in the eyes of the scholars”. Moreover, without elaborating the reason(s), both Hut ha-Meshullah and Maharitz label a husband who is me’agein his wife as “an avaryan” (a sinner). As R.Eliyahu Alfandri notes, get recalcitrance entails “withholding good from our friends” and as such is an infraction of “loving your neighbor like yourself” and “failing to rescue him”. The withholding of a get not only causes a wife needless mental anguish (ona’at devarim) but, as Poskim note, it may propel a wife to engage in tarbut ra’ah (loosely translated as licentiousness). As such, the Nitva is acting improperly by withholding the giving of the get.",
+ "Given the Nitva’s improper behavior regarding the matter of the get, a beit din is halakhically empowered to act improperly towards him. We know there is a prohibition to litigate one’s monetary matters in a civil court. Nevertheless, Rema, Maharashdam, and more recently the late R. H. Shlomo Sha’anan a former dayan serving on the Beit Din ha-Rabbani ha-Gadol in Yerushalayim and others rule that in cases where a Jew does not act properly towards another Jew, Halakhah sanctions the aggrieved party to proceed to file monetary claims in civil court, a forum which resolves matters in accordance with secular law!",
+ "In our scenario, the parties never summoned each other to appear in a beit din to address any financial matters. Optimally, in the event that there are differences between the parties, it is halakhically incumbent upon the parties to resolve the matter either through mediation or litigation in a beit din setting. Nonetheless, in this particular case, given that the Tova’at believes that she can receive financial relief in court that exceeds what she would receive in beit din, we are permitting her to proceed to civil court. Since the Nitva continues to act improperly towards the Tova’at, we are authorized to act improperly toward him. Consequently, though generally speaking a heter arkaot (permission to litigate in civil court) is only given in the wake of a defendant who refuses to appear in beit din, in our scenario we will refrain from mandating that the Tova’at summon the Nitva to appear in beit din and empower her to proceed to civil court in order to submit her financial claims.",
+ "Should the Tova’at submit her claims in civil court and find relief in that forum, should he or she want to negotiate waiving her right to the entire or a portion of the award(s) in exchange for receiving her get, Halakhah deems such financial inducements to receive a get as legitimate.",
+ "Decision",
+ "We permit the Tova’at to file any and all monetary claims relating to end-of-marriage matters including, but not limited to, spousal maintenance, child support, and tuition in civil court. Upon receiving an award(s) in civil court, should the Nitva fail to pay, we permit the Tova’at to notify the civil authorities in order to facilitate enforcement of the award(s)."
+ ],
+ "e) The scope of the mais ali plea and the imposition of harhakot (\"the isolating measures\") of Rabbeinu Tam": [
+ "The Facts of the Case",
+ "The couple was married in 2000. Over a period of eleven years, they had four children. Four to five years into the marriage, the Tova’at read the Nitva’s text messages that he sent to other women such as “thank you for the last night” and overheard him having a lengthy telephone conversation with a woman. As a result of these events, the Tova’at confronted him regarding these liaisons and conversations. Subsequent to this conversation, in October 2008, he accused her of sleeping with other men. These accusations did not subside and when her siblings were asked, “what can you say about their marriage”, their immediate reply focused upon his allegations of the Tova’at’s cheating. These were allegations because the Nitva was never able to corroborate that such behavior occurred. Nevertheless, the Nitva’s accusations abounded about his wife. If he saw a tissue or napkin, he thought she was throwing away sperm. He would arrange the pillows at night and if they were not perfectly arranged the way he left them, he accused her bringing over a man. Due to her alleged cheating, he would keep her in their home and not let her leave. A few times, he stalked her, recorded her conversations, and put GPS tracking on her phone. He installed cameras in and outside of the house in order to monitor the Tova’at’s activities. From time to time, he had hallucinations that made life difficult for the couple. With the onset of his allegations of cheating, the Nitva began to engage in emotional and physical abuse, including spousal rape.",
+ "Upon observing some of this behavior, the Nitva’s parents took him to a psychiatrist and the diagnosis given was that he had “delusional jealousy disorder”. It is a psychiatric phenomenon in which an individual has a delusional belief that his spouse is being unfaithful. Individuals who suffer from a jealousy disorder, but who fail to experience delusions, will not fit the diagnostic criteria for this type of a disorder. The Tova’at’s representation of his conduct confirms the psychiatrist’s diagnosis. Though the Nitva went for therapy a few times between the end of November 2008 and January or February 2009, the Nitva refused to continue the counseling because he felt that “the Tova’at was the problem, not him”. The Nitva started to take medication for his disorder in December 2008 but ceased taking the medication because the Nitva claimed that “the Tova’at was the problem, not him”. In reply to our question of “what can you tell us about their marriage”, her family members responded that the Nitva continuously claimed that the Tova’at is cheating, but he has never brought any evidence to support such accusations.",
+ "Given that the situation failed to improve, the Nitva’s parents suggested to their daughter-in-law to leave him. In July 2010, the couple separated. Given that the marital situation had deteriorated already in October 2008, the Beit Din asked her- why she waited until July 2010 to leave the marriage. Her reply was she had tried to save the marriage for her children and herself and that her in-laws were supportive of her mission; but at the end of the day, she realized (and her in-laws agreed) that there were no prospects to restore her husband to psychological normalcy and therefore she separated from him. (Subsequent to the separation, her in-laws wanted the couple to reconcile). Her reasons for divorce were the emotional abuse, physical abuse, and spousal rape perpetrated by the Nitva. However, on November 2, 2009, the Tova’at reported an incident to the police and from that time onwards, she had a full order of protection. Though in May 2010 the Nitva was allowed to return to the marital home, the abuse did not subside; two months later, the couple separated.",
+ "She does not want to return to him under any circumstances and since the separation transpired over a year ago, she is requesting her get. Though sometimes he agrees to give it, at the end of the day he has been recalcitrant both to the pleas of local rabbis as well as to this Beit Din and to this very day continues to want shalom bayit (marital reconciliation). However, the Tova’at informs us that he is living with a non-Jewish woman at the same time that he is requesting shalom bayit.",
+ "Discussion",
+ "Given the fact that the Tova’at refuses to continue to live with the Nitva, is she deemed “a moredet” (a rebellious wife who refuses to engage in conjugal relations)? A moredet can be subdivided into two different situations. One case involves a wife who wants to remain with her husband but refuses to have conjugal relations with him in order to cause him pain and distress without offering reasons for her recalcitrance. On the other hand, there is a plea called “ma’is ali” (he is repulsive to me), which consequently prevents her from engaging in conjugal relations with her husband.",
+ "The question is whether the claim of “ma’is ali” is limited to circumstances where the wife cannot live sexually with her husband or encompasses a situation where she declares that “I do not want this man”. Notwithstanding some authorities who argue that the two pleas are to be distinguished, various Poskim conclude that the plea includes a scenario where she doesn’t want to be her husband anymore. For example, Ba’al ha-Maor notes,",
+ "Who is a moredet? For example, I want him but I will cause him pain. And when she says I don’t want him, that means that I am repulsed by him.",
+ "Or as R. Yosef Kolon observes,",
+ "It is simple . . . not only a plea of “repulsive to me” but anytime she wants to receive her get.",
+ "Concurring with R. Kolon, R. Shmuel de Medina rules,",
+ "In accordance with Rambam z’l and other great scholars concerning a wife who says ma’is ali we coerce and not only “ma’is ali” as Maharik z’’l said . . .",
+ "Or as Tzemah Tzedek states,",
+ "And the meaning of being repulsive to me means that she says that she wants to be divorced.",
+ "After listing numerous Poskim who link the “ma’is ali” claim with an inability to have sexual relations, R. Yosef Goldberg, an international expert of halakhot of get coercion, invokes Mahara Sasson and concurs that ma’is ali encompasses “I do not want this man”.",
+ "Following in their footsteps as well as invoking other decisors, in contemporary times, various Israeli battei din and Dayan Uriel Lavi have ruled accordingly. In other words, the halakhot that govern the “ma’is ali” claim ought to be applicable to the declaration “I do not want this man”. ",
+ "This notion that the wife’s claim of “ma’is ali” means that she no longer is interested in being married to him is reflected in the Halakhah that a husband is exempt from paying spousal support should his wife desire to end the marriage.",
+ "Must this plea be verifiable or is it sufficient that a wife claim that she is repulsed by the conduct of her husband? In the absence of verifying the claim, how does a panel ascertain that the wife is speaking the truth?",
+ "On one hand, as R. Herzog observes,",
+ "Ma’is ali does not only entail plain hatred but an emotional fear of her husband and this is a secret from the secrets (inner dynamic) of the psyche . . . a person’s soul recoils from touching the person . . .",
+ "On the other hand, despite the emotional component of the “ma’is ali” plea, a victim has the ability to articulate the psychic and emotional feelings in rational terms by communicating to a third party (in our case the beit din panel) the genesis for these feelings via an “amatla mevureret”.",
+ "Following in the footsteps of numerous authorities, in defining what an “amatla mevureret” entails, R. Kook states,",
+ "It has to be clear to the beit din that justice is with her and he deserves that his improper actions and practices that she would be repulsed by him . . . that he caused everything . . .",
+ "However, the issue is whether the “amatla mevureret” must be verified via the testimony of two eligible witnesses. Notwithstanding some authorities who require testimony to assess the veracity of her claim, Tosafot Rid, Avnei Milluim, Helkat Mehokeik, and others do not mandate such verification.",
+ "Nonetheless, even in the absence of requiring the submission of evidence, the advancing of an “amatla me’vureret” does not suffice to impart validity to the “ma’is ali” plea. As Dayanim Nissim, Elyashiv, Zolty and Daichovsky note, the beit din determines the veracity of the plea “according to the discernment of their eyes”. Therefore, upon listening to the plea and in light of the awareness of the circumstances, a panel must sincerely believe that she is raising the claim of “ma’is ali” for substantive reasons relating to her marriage rather than as a ploy because she has an interest in another man. Additionally, if it is clear that she is waiving her right to the value of her ketubah, we can impart credence to her plea of “ma’is ali”. In a recent decision, the Beit Din ha-Rabbani ha-Gadol rules that we follow the view of those decisors who require that a beit din discern whether in fact the plea is sincere and genuinely relates to the reason(s) for demanding the dissolving of the marital ties. Similarly, Hazon Ish argues,",
+ "Everything depends upon the discernment of the arbiters if there is a cause for suspicion due to her claim for the ketubah (the value of it –AYW). But if it seems clear why she is repulsed by him but requests her ketubah in order to have a means of support . . . she does not lose because of her claim . . .",
+ "Based upon the foregoing, the question is whether we are dealing with the narrow plea of “ma’is ali”, which is limited to an abhorrence of sexually living with her partner, or whether it extends to her refusal to live with him under all circumstances. Clearly, the Tova’at admitted to us that she was repulsed by him and did not want to be sexually involved with him anymore, as he is an individual who raped her and due to his psychological condition of exhibiting a “delusional jealousy disorder”—which resulted in all types of abuse—she is unable to continue to live with him. As such, the “amatla mevureret” accompanying the “ma’is ali” plea encompasses both her unwillingness to continue to live with him under any circumstances, whether “in the bedroom” or in the marital home.",
+ "Based upon her presentation, the Tova’at has no intentions whatsoever to pursue any monetary claims against her husband either in another beit din or in civil court (should a heter arkaot, permission to litigate in court, be forthcoming). Therefore, we arrived at the conclusion that her “ma’is ali” plea, couched in the fashion of “I do not want this man”, as well her refusal to engage in conjugal relations is credible rather than being advanced in a manipulative fashion! Furthermore, the Tova’at’s continued and persistent attempts to save the marriage for her children and for herself undermine the allegation that she “cast her eyes on another”. Despite her allegations that in 2006 the Nitva was seeing other women and in 2008–2009 he was texting other women, the Tova’at remained steadfast in trying to save the marriage and during “the ups and downs of the marriage” in April 2010, the Tova’at gave birth to their fourth son. In sum, the case that was presented before us deals with a Tova’at who is advancing a credible claim of “ma’is ali” on both planes—the inability to live under the same roof with him lest she be a victim of abuse and the unwillingness to engage in conjugal relations with him.",
+ "The emerging question is whether there are grounds to obligate a get in a case—one where a wife submits a plea of “ma’is ali” accompanied by an “amatla mevureret”. A review of the Israeli battei din decisions reveals that there are four types of divorce judgments—namely, coercing a get, obligating a get, mitzvah to divorce, and recommending a divorce. Without addressing the differences between these four different types of judgments, let us note that coercing a get today may only transpire in Eretz Yisrael, where the rabbinical courts are empowered to imprison a recalcitrant spouse based upon a decision that coerces the giving or the receiving of a get. Unlike in earlier centuries, where the Jewish community, via its battei din, wa empowered by the foreign government to either physically coerce or imprison a recalcitrant spouse to give or receive a get, nowadays in the Golah (the Diaspora) such authorization is not delegated to the Jewish community.",
+ "On the other hand, despite the fact that we are not authorized to coerce the giving of a get, we are empowered to obligate a get. The threshold issue is whether there are grounds to coerce a get in a case where a wife submits a plea of “ma’is ali” accompanied by an “amatla mevureret”. Notwithstanding numerous authorities who reject this possibility, there are Poskim who contend that if a wife advances the argument of “ma’is ali” and provides an “amatla mevureret”, a beit din can coerce a get.",
+ "As noted by some authorities, the reason why a beit din is bereft of authority to coerce a get involving a “ma’is ali” plea is grounded in the fact that such a plea is not enumerated as one of the ilot gerushin (grounds for compelling a divorce) in Mishnah Ketuvot 7:9–10. Therefore, it is unsurprising to find that many decisors will equally refrain from obligating a get in a situation of “ma’is ali”. However, there are Poskim who recognize such a plea on the condition that the wife submits “amatla me’vureret”.",
+ "Since, in our scenario, we are dealing with a Tova’at who has submitted a plea of “ma’is ali” accompanied by an “amatla mevureret” and in our estimation there is veracity to the plea, we are obligating the Nitva to give a get to his wife.",
+ "Though in accordance with Rabbeinu Tam one cannot coerce a husband to give a get in the wake of a wife’s ma’is ali plea, numerous Poskim nonetheless understand that Rabbeinu Tam obligates a get under such circumstances. In the event that the Nitva refuses to comply with our judgment to obligate the giving of a get, we are invoking harhakot introduced by Rabbeinu Tam—isolating measures in the format of withholding certain economic and social benefits. Throughout the ages, Ashkenazic, as well as Sephardic, Poskim endorse the execution of these “harhakot” and today such measures are implemented in some New York City battei din as well as Israeli battei din. In fact, for Rivash, the employment of these measures is due to the fact that the husband is obligated on a rabbinic level to avoid being recalcitrant regarding the granting of a get. Should he refuse to comply with this mitzvah, Rivash concludes that the withholding of these benefits ought to be introduced by the community. Even where it is forbidden to coerce a get such as in our case, numerous Poskim claim that there are grounds to invoke these isolating measures. Even if in our case the wife would not be an agunah, we may deploy these measures due to the credibility of the “ma’is ali” plea, which serves as grounds to give a get.",
+ "Decision",
+ "Based upon the cumulative evidence submitted to us, we are obligating the Nitva to give a get immediately to the Tova’at.",
+ "Should a get fail to be forthcoming within two weeks of receipt of this psak din (decision), we are directing the community to implement the following measures:",
+ "Harhakot de-Rabbeinu Tam (“isolating measures”)",
+ "“Harhakot de-Rabbeinu Tam” for a wife who pleads “ma’is ali” (he is repulsive to me) and the husband refuses to divorce her:",
+ "To all our brothers of the house of Israel in every place:",
+ "Appearing in front of us was the Tova’at with her argument of “mais ali” concerning her husband. However, the aforementioned man refuses to divorce her because he wants to be me-agein her (chain her to him) and pain her.",
+ "Therefore, this beit din decrees with a severe oath (be-alah hamurah) that every man and woman of the house of Israel is forbidden to speak with him, to do business with him, to circumcise his son, to provide him with food and drink, to interact with him, to visit him during his time of illness and to bury him in a Jewish cemetery."
+ ],
+ "f) A husband's premarital misrepresentations; A case study in bittul kiddushin": [
+ "Rivka Teitelbaum v. Moshe Teitelbaum",
+ "Mrs. Rivka Teitlebaum (hereafter: the Tova’at—the plaintiff), an agunah (“chained wife”) for the past five years, summoned Mr. Moshe Teitelbaum, her husband (hereafter: the Nitva—the defendant), to beit din for the purpose of freeing her from her status of igun (chained to a marriage). During December of 2009, the Tova’at requested a get and the couple separated in January of 2010. In the summer of 2011, the marriage was civilly annulled. To this very date the Nitva will only grant her a get in exchange for monetary remuneration in the amount of $100,000.00. The Tova’at refuses to comply with his condition and therefore the Nitva refuses to give her a get.",
+ "Now let’s briefly summarize the facts of the case: Prior to the marriage, which took place during the summer of 2004, the couple courted each other extensively. Both parties had been married previously and sired children from their respective marriages. There were over a dozen conversations between the parties during their courting and one-third to half of these conversations dealt with what each one expected of the other should they marry each other. Each one was very concerned to have their second marriage be successful. Though the Nitva spoke to the Tova’at about his expectations in the marriage, the majority of these conversations centered on the Tova’at’s hopes. The Tova’at alleges that she wanted to marry a person who would be kind and considerate to her and to her two sons and was looking for someone who would be economically supportive in their marriage. In particular, she was concerned about her two sons who were treated inappropriately by their father and behavior required psychological counseling for an extended period of time as a result of his improper conduct. And, in fact, the Tova’at concedes that the Nitva treated her children nicely prior to their marriage. The Tova’at’s claim of expectations that the Nitva would be amiable, good-natured, and caring with her children was corroborated by a woman who initially was a friend of the Tova’at and subsequently during the marriage became a friend of the couple and had been told by the Tova’at about this expectation during the marriage prior to Tova’at’s decision to seek a divorce.",
+ "Immediately after the marriage, the Nitva’s attitude to her children changed radically. As a controlling personality who dictated that her children accede to his many requests, the Nitva instilled fear in the minds of the Tova’at’s two children and ejected one of her children who challenged his authority from the marital home. This ejection of one of the Tova’at children from the marital home was corroborated by various individuals, including the family rabbi. At the same time, the Tova’at alleges that the Nitva was emotionally abusive to her and slapped her on a few occasions. Though none of the witnesses (children, relatives, friends and third parties) were able to corroborate the physical abuse allegations, nonetheless the family rabbi as well as a woman who was living with the couple from the winter of 2009 until the summer of 2009 stated that her allegations of emotional abuse were true and one witness said that he treated her “like a slave”. After being in the couple’s home for a month or two, the boarder asked the Tova’at, “Why are you staying in the marriage?” Her (approximate) reply was that “she was worried about the situation but she didn’t know what to do”.",
+ "Initially, in order to address their marital concerns, the couple attended various sessions with their family rabbi. Despite the prudent counsel that was given by the rabbi, the marriage continued to disintegrate. However, already from 2006 through 2007, at the Tova’at’s request, the couple was attending marital therapy sessions. Though the couple saw three therapists during this period, the Nitva allegedly felt that the problems in the marriage stemmed from the Tova’at’s behavior and he therefore failed to attend future sessions after attending one or two sessions with every therapist. After completing the sessions in 2007, the Tova’at remained adamant in trying to keep the marriage for the sake of her children from her first marriage and her daughter sired from this marriage.",
+ "During the marriage her husband’s earned income was expended for the most part for his own personal needs rather than maintaining the domestic household. . Moreover, in certain years, the Nitva failed to pay tuition for his daughter and his wife’s two children and to this very day, the Nitva only pays basic child support for his child (refusing to pay additional monies for child support as mandated by the civil court). However, for the sake of her children she still wanted the marriage to succeed and therefore acceded to his every request. Moreover during the marriage, the Tova’at worked as a dietician 4 days a week, supported herself, her two sons of the first marriage and their daughter and paid their tuition.",
+ "As noted above by the boarder in early 2009, the Tova’at still was unsure how to handle her marital situation and she therefore again enlisted the guidance of a health care professional. From 2008 until the time of marital separation, the Tova’at availed herself again of professional counseling and attended marital counseling sessions given by a therapist for the express purpose in trying to determine who was responsible for the marital tensions. The Nitva participated in six sessions and again refused to continue to participate in the hearings. Nonetheless, still desiring to keep the marriage and the family intact, the Tova’at attended dozens of sessions hoping to find “a light at the end of the tunnel”. By the end of 2009, the Tova’at realized there were no prospects for marital reconciliation and therefore requested of her husband to give her a get. Subsequent to the marital separation in January 2010, the Family Court handed down an order of protection against the Nitva during the summer of 2010, mandating that he “refrain from assault, harassment . . . threats of any criminal offense against” the Tova’at and her three children. In reply to the question posed by the beit din panel of “if your husband would have acted properly to you and your children, would you have remained in the marriage”, the Tova’at’s (approximate) reply was, “No. Given that his misrepresentation regarding how he would treat my children only showed his lack of trustworthiness and his unwillingness to support my family propelled me to get divorced.” At the end of the day, the picture that was portrayed to us by family members, friends of either the Tova’at and/or the couple and third parties, men and women (young and old) alike is that though the Nitva was perceived outwardly in the public eye either as charming, kind and considerate, “a harmless, easygoing, guy”, and sometimes prone to “blowing up”, regretfully, in his marital and familial ties, he was controlling, domineering, emotionally abusive, and subject to fits of anger.",
+ "Discussion",
+ "I. Kiddushei Ta’ut (lit. A mistaken betrothal, loosely translated as a mistaken marriage)",
+ "Prior to a wife invoking the tool of kiddushei ta’ut to void a marriage retroactively and claim there was an error in the creation of the marriage; three preconditions must have been obtained:",
+ "(1) The husband’s defect must be a major one (a mum gadol) such as sexual impotency, refusing to have children, insanity, homosexuality, apostasy, a marital expectation communicated by the prospective husband prior to the marriage which turns out to be a misrepresentation, engaging in criminal behavior such as business fraud, or exposing one’s mate to a contagious disease such as syphilis or HIV, a flaw which must have been existent prior to the onset of the marriage. All of the aforementioned examples of a husband’s flaws have been characterized by one or more Poskim as a mum gadol. Whether a particular defect serves as a major defect and is therefore grounds for voiding a marriage is subject to the discretion of the beit din.",
+ "Based upon the cumulative evidence submitted, we find that the grounds for kiddushei ta’ut in our case are that during the days of their courting, the Nitva misrepresented to the Tova’at that he would be considerate and kind to her children from her first marriage and would be financially supportive of his new family. In fact, during the Nitva’s first marriage he acted inappropriately toward his biological children and failed to support his family.",
+ "Clearly, in our scenario common sense dictates that a couple who both were previously divorced and contemplating a second marriage (in which the Tova’at’s two children from a first marriage will be living with the Nitva), any representation regarding such matters is significant. Is there any reason to assume that the mutual representations of the man and woman who are considering embarking into marriage will not be crucial in determining whether a particular party will buy into the marriage? In fact, such matters were under discussion between the two of them. As we mentioned above, we have the submission of one of the couple’s friends that prior to requesting a divorce, the Tova’at confided in her that the Nitva deceived her prior to the marriage regarding how he would treat her children.",
+ "As such, as we encounter other Poskim who will void a marriage retroactively based upon different types of deception, we find grounds to void this marriage based upon the aforementioned misrepresentation advanced by the Nitva during his days of courting. The existence of two mumim gedolim, major flaws namely the Nitva’s behavior toward his children of his first marriage and his failure to support his first wife and their children serve as the grounds for viewing his promises during his courting days with his prospective second wife as a misrepresentation.",
+ "The following question arises: If the man had simply misrepresented to the woman during their courting days that he promised that he would treat her children of her first marriage properly or would support her, would his statement be construed halakhically as a misrepresentation and therefore a case of “kiddushei ta’ut”? Or is the fact that he had a track record, namely of mistreating his own children from his first marriage and failing to support his first wife, serve as the grounds for viewing his promise as a misrepresentation and consequently a situation of “kiddushei ta’ut”? In the absence of any past history of mistreating his own children from his first marriage or failing to support his wife, various aharonim conclude that given that he could have changed his mind, his failure to keep his word to act properly would not be viewed as grounds for voiding a marriage based upon error. However, in our case, at the time of the courting had the woman known about his improper behavior during his first marriage, she never would have married him. Consequently, in light of her husband’s past marital history, his representation during the courting constituted a misrepresentation and therefore grounds for invoking kiddushei ta’ut.",
+ "To state it differently, Halakhah does not only ascertain if misrepresentation exists by utilizing subjective standards such as a spouse’s testimony that deception occurred, but equally must arrive at this conclusion by employing “objective” criteria to determine if one can assume that deception transpired. Addressing the scenario of a marriage ceremony that was finalized with the giving of a brass ring by the hatan to the kallah and subsequently invalidated by a rabbi, R. Shimon bar Tzemach Duran (known by the acronym: Tashbetz) notes,",
+ ". . . Perhaps his reasoning is that given that it is not the usual practice to marry with a brass ring, it is as if he verbally indicated that it was gold. And therefore upon discovery it was brass, she would not be considered married . . . But the matter needs further deliberation.",
+ "To state it differently, “usual practice” concerning marital expectations is defined by what the community considers proper conduct.",
+ "Whereas R. Duran concludes that his observation requires further deliberation, invoking the instrument of kiddushei ta’ut, centuries later R. Avraham Yudlovich rules that one of the grounds for claiming kiddushei ta’ut due to a husband’s misrepresentation is the following,",
+ ". . . How is it possible . . . for her to marry a man whom she observes with her own eyes as a cruel person, who has no compassion on his wife and three children . . .",
+ "The communal expectations are that a husband support his wife and be considerate to his children, regardless if they are biological or not. Given Nitva’s past history from his first marriage and his subsequent misrepresentation to his second wife during their courting days, we invoked kiddushei ta’ut.",
+ "(2) The wife must be unaware of the defect prior to the inception of the marriage and only discovered it after the marriage. On the other hand, if for example, during the marriage a husband commits adultery or contracts Alzheimer’s, though both may be characterized as a mum gadol that significant impairs the matrimonial relationship, nevertheless since the conduct or disease respectively occurred after the onset of the marriage, there would be no grounds for a wife’s claim that the marriage was consummated in error.",
+ "Based upon the cumulative evidence submitted, we find that the Tova’at only became aware of the Nitva’s persona in general and his treatment of her children and failure to support his family in particular after the onset of the marriage. As we mentioned above, we have the submission of one of the couple’s friends that prior to requesting a divorce, the Tova’at confided in her that the Nitva deceived her prior to the marriage regarding how he would treat her children.",
+ "(3) Finally, upon a wife’s awareness of the major latent defect, she must decide to leave the marriage. Regarding this condition, whether she must immediately leave the marriage or not is subject to debate. Though in accordance with certain Poskim, upon discovery of a major latent defect one must leave the marriage immediately or refrain from remaining in the marriage for an extended period of time, nonetheless, in pursuance to R. Moshe Feinstein, Dayanim E. Goldschmidt, S. Karelitz, Y.Bavliki, and others she may continue to live with him provided she offers a reasonable explanation for remaining in the marriage.",
+ "Based upon the cumulative evidence submitted to this panel, the marriage was consummated in the summer of 2004 and she requested a get towards the end of 2009. Clearly, the maltreatment of her children occurred early on in the marriage and in accordance to some Poskim she should have requested a get before the end of 2009. However, our rendition of the facts of the case clearly indicates that given that she was a divorcee with two children she desired to “make this marriage work”. As she communicated to us in the final session, despite the fact that she was emotionally abused and in the eyes of one observer “she was fearful of him”, she set aside her personal reservations and concerns in order to attempt to promote “shalom bayit” to the fullest extent of the word—peace and tranquility for her entire family, their daughter, and her two children from her previous marriage. As such, she enlisted the guidance of her family rabbi on three different occasions, the counsel of four therapists, which lasted until she requested her get and sought the advice of family members and friends. As we mentioned earlier, the reply to the boarder in early 2009, almost four years into the marriage says it all. The boarder asked the Tova’at, “Why are you staying in the marriage?” Her (approximate) reply was that “she was worried about the situation but she didn’t know what to do”. In other words, despite the fact that “the writing was on the wall” dating back a few years regarding his treatment of the Tova’at and her children, the Tova’at was a driven person who had already been divorced once and wanted to try every avenue to save this marriage for herself as well as for her kids. We asked one therapist the following question: “If the couple would have seen you earlier, could the marriage have been saved?” The informed and educated reply from a well-seasoned professional was, “It would not have made one iota of a difference. This marriage could never have worked.” After reading the facts of this case, someone may say that that this marriage was doomed from its inception and therefore how could she have stayed with the marriage. Yes, it is very possible that some women would have opted out of the marriage much earlier and, in fact, two women who appeared in front of us submitted such a representation, but as a beit din we are dealing with the Tova’at, her personality, and her expectations and aspiration and it is crucial to rule in light of her situation. As such, the facts of the case indicate that there are reasonable explanations why she remained in the marriage for an extended period of time hoping to salvage it. Once there was no hope in her mind, she requested a get and separated from her husband.",
+ "In short, all three conditions have been met prior to employing the instrument of kiddushei ta’ut.",
+ "Our conclusion is seemingly open to challenge. Firstly, the Mishnah in Kiddushin clearly states that the dissolution of matrimonial ties is effected either through the delivery of a get by the husband to the wife or by the husband’s demise and our Amoraim (Talmudic sages) as well as the authors of our classical restatements of Halakhah such as Alfasi, Mishneh Torah, Tur, and Shulhan Arukh never authorized voiding a marriage retroactively based upon the existence of major latent defects found in a spouse without the delivery of a get. Lest one argue that silence regarding kiddushei ta’ut does not imply opposition to this solution, we are contradicted by the fact that the Shulhan Arukh and others address the case of latent defects found in a wife and concludes that though the marriage is doubtful, there is a rabbinic requirement of get le-humra (as a precautionary measure). The same conclusion ought to apply concerning discovery of hidden flaws found in the husband. Consequently, it is unsurprising that there are Poskim who reject the technique of kiddushei ta’ut as a means to void a marriage.",
+ "Yet in an effort to define what constitutes a mum gadol in a husband’s persona, we encounter numerous authorities who utilize the instrument of kiddushei ta’ut under certain conditions as a solution to free an agunah from her marital bonds without the requirement of a get. Those who claim that one can utilize the model of mekah ta’ut (a mistaken transaction) from halakhot of sales for defining what constitutes a major latent defect conclude that anything that the majority of the community considers a defect in an item and is neither obvious nor disclosed to the buyer generates the buyer’s right to void the sale. Similarly, numerous contemporary Poskim and dayanim contend that any defect viewed by society that relates to the essence of the marriage and/or its ongoing stability is to be understood as a mum gadol and therefore, under certain prescribed conditions, may free a wife from her marriage without the requisite need for a get.",
+ "Seemingly, the employing of the instrument of kiddushei ta’ut is open to challenge from a passage in the Talmud. In Bava Kama, the Talmud addresses the situation of a “mekah ta’ut” (a mistaken transaction) where the buyer has to rescind the sale due to a defect found in the item that was bought. Upon discovery of the flaw, the buyer has a right to return the object to the seller. One of the conditions for the rescission is that the buyer was unaware of the defect when he purchased the item. If at the time of the sale the buyer was aware of the defect, the sale is final. Among the mekah ta’ut matters that the Talmud addresses is the case of a yibum (levirate marriage). A yevamah is the widow of a man who died childless and was survived by his brother. Under Halakhah, they are obligated to marry one another. Should the brother-in-law refuse to marry her, he must release her by means of a ceremony called halitzah (removal of one of his shoes). Should the surviving brother, known as the yavam (levir), neither marry the yevama nor perform the halitzah, she becomes an agunah. Dealing with a childless widow, the Talmud states,",
+ "A childless widow whose lot falls for yibum consideration before a brother-in-law who is afflicted with a severe skin disease (boils) (and as a result is physically repulsive to her) should be released without halitzah because she did not betroth herself in marriage to her brother-in-law with this in mind.",
+ "However, rejecting the wife’s reasoning, the Talmud cites Resh Lakish’s following ruling approvingly,",
+ "In that case we can attest that a woman is ready to accept any conditions (provided she is married to her first husband) . . . for Resh Lakish said: it is better to live as two than to remain in widowhood.",
+ "Consequently, given that marrying a brother-in-law who is afflicted with boils is preferable to remaining a widow, her first marriage cannot be considered a mekah ta’ut. Consequently, Tosafot extrapolates that in all situations where a husband exhibits major defects a wife cannot argue that there is a mekah ta’ut because she prefers living with any man rather than live a life of spinsterhood. Therefore, it is unsurprising to find that many Poskim who prohibit implementing the method of kiddushei ta’ut rely upon this Talmudic passage as one of the grounds for their position.",
+ "On the other hand, argues R. Elchanan Spektor, if the tav le-meitav (Reish Lakish’s reasoning above) is operative under all circumstances, how did the authorities mandate a husband to divorce his wife in a situation where the wife cannot tolerate her husband’s behavior? Moreover, according to Rashi’s interpretation of the passage, the two Talmudic statements “she is satisfied with anything” and “it is better for her to live in this state” refer specifically to the case of a yavam who has a serious skin disease rather than to latent flaws in all marriages. Espousing Rashi’s position, others conclude that a wife may claim mekah ta’ut in many other instances that entail a major defect because she is unwilling to live with a husband who is repulsive to her.",
+ "Given the fact that today outside of Eretz Yisrael, civil authorities will not enforce a beit din’s directive to coerce a get, Rabbis Klatzkin, Feinstein, Tzvi P. Frank, O. Yosef, and others state there is a need to implement this type of bittul kiddushin. Upon our review of the world of she’eilot and teshuvot in general and the aforesaid reasons in particular, and the concomitant realization that in the absence of kefiyyah (legal coercion) a beit din is bereft of offering a solution to the matter of igun, we have chosen to follow in the footsteps of a well-trodden mesorah of two rishonim and numerous aharonim who advocate freeing an agunah without a get based upon the technique of kiddushei ta’ut.",
+ "This psak din was approved by a renowned rabbinic authority."
+ ],
+ "g) A mentally dysfunctional husband; A case study in kiddushei ta'ut": [
+ "Miriam Bloom v. Yisrael Bloom",
+ "Mrs. Miriam Bloom (hereafter: the Tova’at—the plaintiff), an agunah (“chained wife”) for the past five years, summoned Mr. Yisrael Bloom, her husband (hereafter: the Nitva—the defendant) to beit din for the purpose of freeing her from her status of igun (chained to a marriage). During December of 2010, the Tova’at requested a get; the couple separated in January of 2011. By the time of separation, the couple had sired one son and one daughter. In the summer of 2012, a civil divorce was executed.",
+ "Now let’s briefly summarize the facts of the case: Prior to the marriage, which took place during the summer of 2003, they courted. At the time, the Tova’at was 18 years old and the Nitva was 19 years old. He projected himself as a nice Orthodox Jewish boy attending a Yeshiva who had a positive outlook on life, was charming, and was ready to begin studying at a business school in order to earn his MBA degree and embark on a career in the investment world. They married in the fall of 2003.",
+ "Approximately a year into the marriage, according to the Tova’at’s representation, he admitted to her that something was wrong to him and therefore decided to proceed to have therapy. But she had already sensed on their wedding night that something might be wrong. At that time, she was “a huppat niddah” and therefore was proscribed from engaging in conjugal relations with her husband. His reaction was that it was her fault that this happened and he became very angry. Subsequently, he got angry for matters that would be insignificant for most people. In effect, his reaction to an event—in terms of “acting out” with anxiety and panic attacks—was not proportionate to the seriousness of the event. Moreover, the Nitva was a controlling personality who chose her friends, single as well as married.",
+ "As she communicated to us, during the marriage the Nitva allegedly engaged in risky driving, sometimes wearing headphones and texting while driving, driving down a one way street in the wrong direction, and smashing cars quite a few times. Additionally, he consumed alcohol and was found once by his oldest son with a bleeding nose and lying in front of the synagogue on a Shabbat morning. One DUI (driving under the influence) police report was submitted regarding his level of intoxication and in the report there was mention that his license had been suspended previously for reckless driving.",
+ "Though the Nitva did not consume recreational drugs, he medically took a daily regimen of drugs, including Prozac for depression, clonazepam for anxiety, and adderall for attention deficit hyperactivity disorder for his entire life From time to time, he allegedly overmedicated himself with his regimen of medications and exposed his family and himself to danger while driving in this overmedicated state.",
+ "Though during the early years of the marriage, the Nitva admitted to her that he went to a strip club, he subsequently apologized for his indiscretion. The Tova’at felt that he continued to go there and/or be involved in illicit affairs. But she did not provide us with any proof of such. Credit card transactions allegedly showed that he was at strip clubs, but supporting evidence was not provided to the panel. After their separation, her oldest son—who spent time with his father—confided in her that during one of his stays a woman was there and was in the bedroom with his father.",
+ "He experienced feelings of being alone [stating that he was “out of his body”] and being abandoned. On a few occasions, he threatened to commit suicide should she leave him.",
+ "After earning his MBA degree, he gained employment at an investment company. Shortly after the hire, he was fired. Subsequently, he joined an investment partnership but after a year and a half, that employment opportunity soured. Given that he was allegedly an insomniac, he always woke up late and had no regular schedule as to when his workday began. Having erratic working hours did not gain him friends in the financial world of investments. His business partner testified that he walked into the office at different hours every day. Moreover, the partner testified that the Nitva was manipulative and he never agreed how to address certain business matters. Every issue was “the end of the world and it was his way or the highway”. Though the partnership lasted for a year and half, the primary reason the partnership was not dissolved immediately was that the partner was a friend of his and was hoping that as time passed the working relationship would be improve. But matters only deteriorated even further with the passage of time and the business partnership eventually collapsed.",
+ "Though outwardly he was an Orthodox Jew in terms of his synagogue affiliation and his children’s attendance at a local Yeshiva, he nevertheless did not regularly go to synagogue on Shabbat, admitted to the Tova’at that on a few occasions he listened to TV on Shabbat, ate treif (nonkosher food) on three different occasions while at business meetings, and allegedly told his 11-year-old son that one is permitted to watch TV on Shabbat.",
+ "Regarding his parenting, the Tova’at alleges that he had no relationship with his children. The oldest one was scared of him and allegedly one of the straws that broke the camel’s back was that he allegedly shook his twelve-year-old son and continued to yell at him for three hours. During this encounter, the Nitva allegedly said to his son that “his grandfather is a thief and your mother doesn’t love you”. For years, despite his lack of ties to his children, the Tova’at “stayed with the marriage”, an avowed position of many Orthodox Jewish mothers who attempt to save their marriage. However, at this point she came to the realization that there was no hope and she had to protect her children and therefore the couple separated. Her decision to leave was reinforced by one act of physical abuse committed against her at that time. Though earlier on in the marriage there were, in her words, “sporadic attempts of abuse”, she didn’t feel that there were in actuality events of abuse. (It is our conjecture that these incidents constituted abuse but either she was not ready to accept that conclusion at that time or did not understand what constitutes abuse.) Two months before separation, he was ready to hit his one-year-old child and she had to stop him. Then, in front of the three children, he sat on her and she almost couldn’t breathe. After he got off her, his response was “it was a joke”. The kids were stunned and scared. In an earlier time, one of the children forgot to cover his mouth when he coughed and the Nitva then pushed the child’s head under the table. This event provides another example of lack of proportionality between the misbehavior and the punishment meted out by the Nitva.",
+ "In terms of the Tova’at being emotionally abused, it was defined by his manipulation and lying to her. And when the Nitva did something wrong, she had to apologize for what he did and he sometimes cursed her. In her (approximate) words, “He was a manipulative human being, dishonest, had a narcissistic personality, and exhibited symptoms of having borderline personality disorder, fraught with anxiety and subject to depression and panic attacks.” In fact, in the Nitva’s e-mail communications to the Tova’at’s family, he admitted that he had been combative, disrespectful, and verbally abusive toward the Tova’at and admits his failure as a father.",
+ "The Tova’at’s psychological depiction of the Nitva was corroborated by a civil court judge, who stated that “he ought to be committed” and by the Tova’at’s attorney, who testified that he was “out of control” and that her law firm had to hire a bodyguard who would protect the attorney from him both at home and work. An invoice provided by the security company supported the attorney’s allegation.",
+ "In response to the wife’s detailed communications of her interaction with her husband, after a psychologist interacted with the Nitva, he testified to us the following: “He is a person with borderline personality disorder (BPD) accompanied by severe depression, is anxiety ridden, and has severe obsessive compulsive disorder and post-traumatic distress disorder.” The psychologist stated that there was no medication for treating BPD. Though there were therapeutic methods to address BPD, given that the person exhibited the aforementioned psychotic conditions, he concluded that therapy was difficult.",
+ "His alleged ability to manipulate people was substantiated in the Tova’at’s father’s testimony. In his testimony, the Nitva’s father-in law recounted to the panel that the Nitva behaved nicely to his father-in-law as long as he provided financial support to him. Initially, the father-in-law did not understand that he was manipulative. In fact, a person who was a neighbor to the couple while they resided in an apartment building in the early years of their marriage told the father-in-law via a third party that he always heard “yelling and screaming” coming from their apartment. However, the father-in-law was unwilling to believe at the time that the marriage was tottering. Therefore, he continued to remain silent and continued to financially assist them. However, once the Nitva’s father-in-law saw “the writing on the wall”, he decided to intervene and tried to extricate his daughter from the marriage. But she failed to heed his advice to bolt the marriage. The Nitva threatened the Tova’at that he would leave her and the children if anyone would become involved in their marriage. The Nitva’s father-in-law testified that his reactions were out of proportion when a particular event happened. The father-in-law witnessed fights that the Nitva had with people in the synagogue that he was regularly attending.",
+ "After the marital separation, a civil court noted his irresponsible behavior toward his children and stated,",
+ "The wife shall have sole parental responsibility of the three children . . . This Court is manifestly aware of the stress and emotional turmoil that these type of proceedings at times inflict on its participants. However, it is abundantly clear that Husband’s demeanor and speech reflect that he has serious psychological issues that he must attend to in order to properly parent his three minor children. . . . Husband was, until recently taking about five prescribed medications, including Prozac, Adderall and Clonazepam. . . .",
+ "Based upon the above psychological evaluation of the Nitva, the court concluded that it was in the children’s best interests that the Tova’at retains sole parental responsibility over the major decisions affecting their children. Furthermore, the Nitva was entitled to eight hours of supervised visitation with both children.",
+ "Discussion",
+ "I. Kiddushei Ta’ut (lit. a mistaken betrothal, loosely translated as a mistaken marriage)",
+ "Prior for a wife invoking the tool of kiddushei ta’ut to void a marriage retroactively and claim that there was an error in the creation of the marriage, three preconditions must have been obtained:",
+ "(1) The husband’s defect must be a major one (a mum gadol) such as sexual impotency, refusal to have children, insanity, homosexuality, apostasy, a marital expectation communicated by the prospective husband prior to the marriage that turns out to be a misrepresentation, if he is engaging in criminal behavior such as business fraud or if he exposes one’s mate to a contagious disease such as syphilis or HIV; this flaw must have been preexisting at the onset of the marriage. All of the aforementioned examples of a husband’s flaws have been characterized by one or more Poskim as a mum gadol. Whether a particular defect serves as major defect and therefore grounds for voiding a marriage is subject to the discretion of the beit din.",
+ "Based upon the cumulative evidence submitted, we find that the grounds for kiddushei ta’ut in our case is that the Nitva failed to disclose that he was mentally dysfunctional and was taking a daily regimen of Prozac for depression at the time of their courting. Failure to disclose this mum gadol is viewed as improper behavior. As Rema rules,",
+ "If he conducted himself improperly and consummated kiddushin (a halakhic engagement) by acting deceitfully and with trickery, we coerce him to give a get.",
+ "Addressing this conduct, an Israeli Rabbinical Court observes,",
+ "He acted improperly . . . Had the Tova’at been aware of this behavior it is logical to assume that she would not have married him . . . This concealment and misrepresentation of the marriage concerning this serious matter is an improper act . . . Such indecent behavior is a grounds to coerce a get . . .",
+ "In fact, even if a husband’s flaw cannot be characterized as a mum gadol, the deception alone serves as grounds to coerce a get. ",
+ "In short, a failure to disclose certain a behavior, which entails deception and misrepresentation, may serve as grounds to coerce a husband to give a get to his wife. Given that this couple lived their married life in the United States, a country that legally will not coerce a husband to give a get, numerous Poskim such as Rabbis Borenstein, Klatzkin, and Feinstein will under certain conditions empower an arbiter or beit din to engage in bittul kiddushin (voiding a marriage). In fact, there is a mesorah of authorities who would void a marriage due to a husband’s misrepresentation prior to the marriage. In short, the kiddushei ta’ut was not only in his failure to disclose his psychological condition, but equally due to his misrepresentation prior to marriage that he was a mentally healthy and stable individual.",
+ "(2) The wife must be unaware of the defect prior to the inception of the marriage and only discover it after the marriage. On the other hand, if, for example, during the marriage a husband commits adultery or contracts Alzheimer’s, though both may be characterized as a mum gadol significantly impairing the matrimonial relationship, nevertheless since the conduct or disease respectively occurred after the onset of the marriage, there would be no grounds for a wife’s claim that the marriage was consummated in error.",
+ "Based upon the cumulative evidence submitted, we find that the Tova’at only became aware of the Nitva’s persona in general and his treatment of her children in particular after the onset of the marriage.",
+ "Since we are unable to determine whether in fact the Nitva exhibited BPD prior to his marriage, seemingly we fail to have a basis for employing the technique of kiddushei ta’ut and thereby void their marriage. However, as we already noted Nitva failed to disclose at the time of the courting that he was taking medication for depression and misrepresentation and deception serve as grounds for invoking kiddushei ta’ut.",
+ "(3) Finally, upon a wife’s awareness of the major latent defect, she must decide to leave the marriage. Regarding this condition, whether she must immediately leave the marriage or not is subject to debate. Though in accordance with certain Poskim, upon discovery of a major latent defect one must leave the marriage immediately or refrain from remaining in the marriage for an extended period of time, nonetheless, in pursuance to R. Moshe Feinstein, Dayanim E. Goldschmidt, S. Karelitz, and Y. Bavliki, and others argue that she may continue to live with him provided she offers a reasonable explanation.",
+ "Based upon the cumulative evidence submitted to this panel, the marriage was consummated in the fall of 2003 and they separated in January 2011. Given that he admitted that he was taking a daily regimen of Prozac for depression most of his life, a fact that the Tova’at only discovered after their separation, it is clear that during the courting he was taking his meds. Despite this fact, the Tova’at did not observe any “red flags” that would indicate any mental dysfunction. Obviously, during the brief period of courting, nothing triggered him to react psychotically and therefore no signs of mental dysfunction emerged. In fact, had the Tova’at told us that had she known about his taking of Prozac she never would have married him.",
+ "Yet, during the first year of the marriage, the Nitva admitted that he had problems and decided to undergo therapy. During the early years of their marriage, the Tova’at witnessed various incidents that were strange to her. For example, the Nitva’s inability to keep to a regular work schedule, that he was subject to bouts of anger regarding insignificant events, and that he chose her friends and engaged in risky driving and yelled and screamed at the Tova’at and their children ought to have served as “red flags”. However, for many years the Tova’at for was unable to discern what was “lurking behind” the Nitva’s conduct. It is important to note that the Tova’at was 18 years old when she married. Being a young woman and unaware of the psychological dynamics of BPD, she was unable to assess what was transpiring in front of her. Addressing the case of a mother of two children who during the span of seven years was living with a psychologically dysfunctional husband before separating from him, Dayan Ben Tzion Boaron, serving at the time as a dayan on the Beit Din ha-Rabbani ha-Gadol, astutely notes, ",
+ "And one cannot say that since she lived with him seven years and had two children and observed the defect, she forgave him. That is not the case since in these matters one cannot comprehend the disease in clear terms for an extended period of time because sometimes due to her love she explains his anger and anxiety . . . (she views it –AYW) as a temporary psychological state and she craves and hopes that his situation will improve. In particular, when a person regularly takes medicine, there are periods that he is relaxed and quiet. Such is the situation in particular after he explodes and then becomes relaxed and pleads for forgiveness . . . Minimally this “lowers” the kiddushin to the level of a doubtful marriage . . . In the case of a doubtful marriage one may be lenient . . . and she has the status of being single . . .",
+ "His observations of human nature and their significance in terms of voiding a marriage, as he explains, have been noted by earlier authorities. Similarly, in our case, it took the wife seven to eight years to be able to be educated regarding her husband’s condition and arrive at the realization that it is was time to separate. Consequently, even after this extended period of time, she still retains the right to claim that the marriage was “in error” and request that we void the marriage without the execution of the get. Given the reasonable explanation for the delay in invoking “kiddushei ta’ut”, as R. Feinstein and others note, said delay should not undermine her claim to be freed!",
+ "Moreover, as an Orthodox Jewish wife who was committed to the marriage, her initial reactions to the Nitva’s conduct was to attempt to assist the Nitva in trying “to make him whole” and was fearful of leaving him; apprehensive what he would do to the kids and her. On numerous occasions over the years, the Nitva promised to mend his ways and his words were quite convincing to her but clearly now the Tova’at realizes it was all an act. As the panel understood, the Tova’at became a victim of emotional abuse. Though initially the Tova’at‘s father did not comprehend the Nitva’s problems, he eventually grasped the situation and attempted to persuade his daughter to leave the marriage. Nonetheless, she insisted that she wanted to remain in the marriage in the hope of being able to “save the marriage” for herself and for her children. Being a single mother with children would compromise the family’s good name and status in the Orthodox Jewish community as well as damage the children’s marriageability and will affect the possibility of finding them a “shidduch” (a good marital match). The Tova’at wanted the abuse to end, but as an Orthodox Jewish woman she desired to preserve the family relationship.",
+ "In short, the Nitva, who is the abuser, is the person the victim/survivor loves. Like other abusers, the Nitva was remorseful after committing his abuse. He showed moments of contrite behavior, included promising never to hit again, and pointed out the incredible stresses under which he was operating. Such representations make leaving the abuser especially difficult where violent episodes or bouts of anger and panic attacks are followed by periods of affection and positive attention. When the Nitva acknowledged the error in his ways and conceded the need for change, hope was renewed for the Tova’at. Eventually, after six years, she enlisted the services of a health care professional for the purpose of receiving a professional assessment of the situation. Once the nature of Nitva’s psychological disorder was explained to the Tova’at, she realized that BPD cannot be treated with medication and employing therapy was very difficult due to his other psychological complications; after witnessing the Nitva’s physical abuse of her children, she then realized whom she was living with all these years and that there was no hope to salvage the marriage and separated from Nitva.",
+ "2. A wife’s umdana (assessment of expectations) after the onset of marriage",
+ "In contradistinction to kiddushei ta’ut which focuses upon an event prior to the marriage, namely the existence of preexisting grave flaw in the husband’s physiology or behavior, umdana deals with an event(s) which transpires after the inception of marriage. For example, “had I known that my husband would have been physically abusive to me or would become mentally dysfunctional during our years of marriage I never would have married him” may serve as illustrations of a wife invoking an umdana.",
+ "Seemingly, the employment of an umdana here is open to challenge. As we know, an umdana to be effective is dependent upon both parties. For example, a sales transaction involves the agreement of parties, the seller and the buyer: “taluy be-da’at shenhem”. The voiding of the sale with the appearance of a defect subsequent to purchase would be predicated upon two conditions:",
+ "1. The buyer would have not consummated the deal if he had realized that the item sold would be defective within a reasonable time.",
+ "2. The seller would negotiate the sale contingent upon the utility of the item being sold. In other words, the voiding of the sales transaction is dependent upon the existence of both the seller’s and buyer’s implied conditions.",
+ "The requirement of “taluy be-da’at shenhem” as a precondition prior to the invoking of an umdana equally applies to marriage which is based upon the consent of both a man and a woman. For example, if a husband is engaged in criminal activity while married, the fact that a wife would exclaim “had I known he would be a criminal, I never would have married him” would seem to offer no basis for voiding the marriage, since a similar statement must have either been articulated by the husband or be presumed on the husband’s behalf. In fact, the husband may not want to void the marriage in order to avoid his sexual intercourse being viewed as be’ilat zenut, an act of fornification. However, in contradistinction to R. Bezalel Stern’s view, adopting the views of Rabbis Mordekhai Hillel, Zvi Ashkenazi, Shmuel Landau, Hayyim Halberstam, Zvi Shapiro, Moshe Zweig, Moshe Feinstein, Ezra Batzri and others, in cases of a major umdana or what has been labeled as an umdana demukhach, a major inference expressed by one person suffices in order to void a marriage. Relying on talmudic precedent, Rashi’s interpretation of the passage, and a teshuvah penned by Maharam in a few situations such as a husband who became a mumar, an apostate or a mentally dysfunctional husband, Poskim invoke umdana as a vehicle for bittul kiddushin.",
+ "Addressing the situation of a husband who upon marriage becomes dysfunctional and is placed in a mental health care facility, R. Zvi Pesah Frank states,",
+ "I saw in Hessed le-Avraham . . . that writes to our pending matter, if a husband became an apostate clearly she did not have in mind to marry him. And equally in our case where he became dysfunctional and no person will live together with a snake and this is much worse than a person afflicted with boils that we say that she had no intention of marrying him and therefore we have to deliberate whether to void the marriage . . . and in a situation of an insane person one cannot live with him and it is analogous to an apostate . . . and therefore we permit her to remarry (without a get –AYW).",
+ "In effect, invoking medameh milta le-milta (reasoning by analogy), extrapolating from the scenario of voiding the marriage of an apostate Jew based upon employing the tool of umdana to the situation of an insane husband living in a hospital for lunatics who refuses to give a get where a wife ought to be freed without a get serves as the grounds for R. Frank voiding the marriage.",
+ "In fact, addressing the situation of husband who failed prior to his marriage to disclose to his spouse the existence of his mental insanity, R. Avraham Shapiro, a former Israeli Chief Rabbi argues,",
+ "It is clear that it is impossible that a wife would be enslaved to live with a man who is afflicted with a skin disease, this is an absolute debt, and surely she is not interested in it and this matter cannot be understood and it is against common sense . . . and surely it is an erroneous marriage . . . Therefore a severe defect such as being mentally insane . . . a woman does not desire and it is meaningless for everyone.",
+ "To state it differently, R. Shapiro contends that no woman would be willing to live with a man who is mentally dysfunctional. Though dealing with a case of mum gadol which predates the inception of marriage, R. Shapiro formulates an argument for invoking an umdana in a situation where the insanity emerges after the onset of marriage. As other authorities observe, there exists an umdana that no one wants to be married to a spouse who is mentally dysfunctional.",
+ "In light of those Poskim who employ umdana as a means to void a marriage in general and R. Frank’s ruling in particular, we are dealing in our case with a husband who is mentally dysfunctional and as Talmud states “no person will live together with a snake”. Our rendition of the facts of the case including the Tova’at’s presentation, family and third parties’ testimonies and the psychological evaluation of the Nitva demonstrate the workings of an umdana, namely “had I known that my husband would be become mentally dysfunctional during our years of marriage I never would have married him”",
+ "In short, focusing upon a husband with BPD as well as communicating false misrepresentation to the Tova’at that he was a mentally healthy individual during their courting, we find grounds based upon umdana as well as kiddushei ta’ut to void the marriage.",
+ "This psak din was approved by two renowned rabbinic authorities.",
+ "Final Thoughts",
+ "1.",
+ "Are there grounds to void the marriage based upon the fact that the Nitva exhibited behavior that was symptomatic of an individual with BPD? Describing the Nitva, the Tova’at observed (her approximate words),",
+ "He was a manipulative human being, dishonest, had a narcissistic personality, exhibited symptoms of having borderline personality disorder, was fraught with anxiety and was subject to depression and panic attacks.",
+ "Signs of the disorder are impulsive and risky behavior, such as reckless driving, drug use, wide mood swings, short but intense episodes of anxiety or depression, inappropriate anger, and antagonistic behavior that sometimes escalates into physical fights. Additionally, feeling misunderstood or abandoned as well as fear of being alone are symptomatic feelings of an individual with BPD. All of the above were told to us by the Tova’at and her family, described by the Nitva in his e-mail communications to the family or a friend, and corroborated by some documentation.",
+ "Here again, such a psychological condition ought to be viewed as a mum gadol. Even those Poskim who contend that a psychological disorder that is curable must be viewed as a minor defect would agree that a person who is diagnosed with BPD, which cannot be cured through any medication, ought to be viewed as a husband possessing a major defect. Lest one argue that such an individual may be curable through therapy, in our scenario where the Nitva suffers from major depression and is a victim of anxiety attacks, the health care professional testified that therapy would be very difficult. And in fact, the Nitva underwent therapy and until the time of separation was still mentally dysfunctional and upon separation developed an additional psychological disorder of ADD.",
+ "Though, as we have mentioned, the Tova’at communicated to us (and members of the family testified) regarding Nitva’s alleged psychological conditions, these representations are nonetheless at best the opinions of lay people and therefore are open to challenge.",
+ "On the other hand, as we mentioned earlier these characterizations have been confirmed by a health care professional who offered the following diagnosis of the Nitva’s psychological profile:",
+ "“He is a person with borderline personality disorder (BPD) accompanied by severe depression, is anxiety ridden, and has severe obsessive compulsive disorder and post-traumatic distress disorder.”",
+ "Except for a psak din rendered by R. Osher Weiss that, assuming certain conditions are met, who advocates in principle that voiding a marriage of a husband who is professionally diagnosed with borderline personality disorder ought to be recognized, to the best of our knowledge no other posek addresses this scenario. However, the fact that a particular psychological condition has not been the focal point of a psak din should not construe utilizing it as “charting a new course” within the context of bittul kiddushin. For example, recently, addressing the situation of a schizophrenic husband, a Haifa rabbinical court invokes multifarious rulings that dealt with preexisting latent defects of a husband involving physiological, medical, and psychological conditions as grounds to void the marriage of a dysfunctional husband. To date this is the lengthiest teshuvah which has been published dealing with kiddushei ta’ut. Among the teshuvot cited by the Israeli beit din were the following: a husband who was castrated, blind in two eyes, sexually impotent, and a shoteh (mentally dysfunctional in accordance with halakhic criteria). The common denominator of these major flaws can be summarized in the words of R. Feinstein, who addresses a situation of a shoteh and states,",
+ "Surely a shoteh is a major flaw that in effect precludes ishut (marital relationship –AYW) . . . one cannot live with a snake . . . one cannot live with him.",
+ "To state it differently, engaging in conjugal relations is not only contingent upon the physical ability of a couple “to go through the motions”. A couple may physically and medically be capable “to perform”. But at the end of the day, there may exist psychological conditions that preclude either a wife or a husband to engage in marital relations. For the Haifa beit din, a schizophrenic husband impacts the stability of the home in general and the intimate relations of a couple in particular. But interestingly enough, a review of the Haifa case shows that the panel was unable to demonstrate that “the mum gadol” existed prior to their marriage. As we have explained, in order to void a marriage based upon kiddushei ta’ut one must prove that the husband was schizophrenic prior to the marriage and he failed to disclose his psychological disorder to his wife prior to their marriage. However, based upon the assessment of a health care professional, the various dayanim who proffered their approval of the decision inform us,",
+ "The phenomena that were discovered with the husband prior to the marriage attests in a clear fashion that he was sick with this disease even before his marriage. In the first stage there were no psychotic attacks but it expressed itself in negative and positive signs which characterize its presence (of the disease –AYW) . . . It was dormant for a few years, but according to his professional experience, the outcome was clear. There was a high degree of probability that sooner or later the psychotic attack would manifest itself, in particular during the marriage which is linked to particular tensions.",
+ "In other words, despite the fact that there was no evidence demonstrating that prior to the marriage the husband was schizophrenic, nonetheless, there was behavior which was a precursor to developing this mum gadol, this major psychological disorder. Consequently, relying upon a health care professional’s assessment of the situation, “the second opinion” communicated to the Haifa panel their approval of their decision to void the marriage based upon kiddushei ta’ut.",
+ "Similarly, in our case, we have no signs that the Nitva exhibited BPD prior to the marriage. The question is whether there existed any precursors which would indicate that subsequently BBD would rear its head?",
+ "The threshold issue is whether the panel can trust the findings of a health care professional. A cursory review of the Talmud will show that medical opinions have been factored into consideration prior to arriving at a psak. Whether a study of each passage would support our conclusion may be subject to debate. But clearly there are passages that invoke reliance upon a physician’s assessment that a patient has a certain sickness prior to issuing a decision. The common denominator of the various Talmudic passages is that we are dealing with the trustworthiness of a physician.",
+ "Despite the fact that the Talmud focuses upon the credibility of a doctor’s findings, it is clear from studying the Poskim’s writings that the guidelines for ascertaining whether one may rely upon a physician’s determination has been equally extended to encompass the assessments of health care professionals such as a psychiatrist, psychologist, or social worker. For example, there are numerous rulings that have been based upon the findings of the aforementioned professionals concerning the determination of whether a particular individual is halakhically a shoteh (mentally dysfunctional as per halakhic criteria) in dealing with matters of Even ha-Ezer.",
+ "That being said, whatever the parameters of defining the contours of the reliability of the findings of a physician ought to be applied to the assessments of other health care professionals. One of the issues is whether one may trust a physician’s determination when addressing matters of issurei de-oraita (matters of biblical prohibitions) or only issurei de-rabbanan (rabbinical prohibitions)? Clearly, in our scenario, for those Poskim who reject the employment of kiddushei ta’ut to void a marriage results in the need for a get on a rabbinic level, otherwise known as a get le-humra (the requirement of a get as a precautionary measure). As such, we are dealing with a rabbinic prohibition. Consequently, notwithstanding certain authorities who reject any reliance upon a physician’s (and by extension a psychologist’s) findings, in instances where there are “raglayim la-davar” (there is credible evidence supporting the psychologist’s determination), there is rabbinic consensus that we trust his conclusions in matters of issurei de-rabbanan. On the other hand, for those who sanction the use of kiddushei ta’ut to void a marriage, we are neither involved with biblical or rabbinic prohibitions and therefore, the professional findings are to be recognized.",
+ "That being said, what is the scope of matters in which Halakhah would deem his findings credible? Placing our question in the context of the psychological findings of our case, will the psychologist’s diagnosis that his patient has BPD and in his professional opinion had a childhood history of sexual abuse be accepted? The former assessment is based upon counseling his patient and the latter determination is grounded upon the psychologist’s general knowledge of the professional literature that links a patient who has BPD with prior child experiences of abuse. Whereas the latter findings emerge from an awareness of the conclusions of professional literature, the initial findings are based upon the psychologist’s interaction with his patient. Given that there an intrinsic difference between these two types of findings, it is no surprise to encounter a controversy amongst the Poskim whether one can recognize the trustworthiness of both types of determinations. On one hand, some contend that a doctor’s (and by extension a psychologist’s) trustworthiness is limited to the patients he actually examines. Arriving at a finding regarding a patient based upon accepted psychological studies without actually meeting and interacting with a patient will not suffice. However, others claim we can rely upon their understanding of findings that emerge from the professional literature. Our reliance upon a health care professional opinion is no different than similar opinions of Tur and Shulhan Arukh, who permit enlisting the services of an expert to determine whether a particular sales transaction was executed in error.",
+ "As the psychologist testified to us, BPD is characterized by a pervasive pattern of mental instability that is marked by tension, including rage, sorrow, terror, suicidal attempts, and chronic feelings of emptiness and loneliness. The cumulative evidence submitted to us during the Tova’at’s presentation and the testimonies of members of the family, an attorney, and a business partner corroborate the psychologist’s appraisal of the Nitva.",
+ "Furthermore, as we mentioned, the psychologist offered to us the following diagnosis of the Nitva. “He is a person with borderline personality disorder (BPD) accompanied by severe depression, is anxiety ridden, and has severe obsessive compulsive disorder and post-traumatic distress disorder.” Moreover, as we mentioned he testified that most individuals who have been diagnosed with BPD have been victims of abuse during their childhood. In the therapist’s approximate words “BPD is almost always as a result of trauma in childhood due to parental abuse”. The Tova’at informed us that during his childhood the Nitva was physically abused by his father and in various e-mail communications to members of the family, the Nitva admitted that he was a victim of abuse. Moreover, professional literature has shown that BPD occurs in childhood or no later than either adolescence or early adulthood.Based upon Nitva’s childhood experiences as well as his diagnosis of the Nitva, the psychologist concluded that he experienced BPD prior to the age of 19 when he embarked upon his marriage.",
+ "Regarding the psychologist’s observation that there is a link between individuals who exhibit BPD and their childhood experiences of abuse, upon our review of the literature we find that most studies indicate that a childhood history of child abuse is associated with BPD patients. Lest one challenge our conclusion by invoking the position that a review of the professional literature must be accompanied by actual proof that the BPD patient was a victim of child abuse, as we noted, the Nitva admitted that as a child he was physically abused by his father.",
+ "Placing our matter in a halakhic context, in pursuance to Ramban’s observation, one may conclude that if the signs of mental dysfunction do not manifest itself prior to the marriage, should doctors testify that the disease which appears after the onset of marriage, in actuality was present before the marriage, we can rely upon their professional assessment and if one agrees that invoking kiddushei ta’ut is valid, the marriage may be voided. Moreover, some Poskim have implicitly contended that even if a physiological or psychological disorder appeared after the onset of the marriage, we may assume the disease existed prior to the marriage.",
+ "Finally, some Poskim claim we can rely upon their understanding of findings that emerge from the professional literature. That being said, possibly the fact that professional literature has shown that there is a link between parental abuse and the emergence of BPD in the victim of the abuse as well as demonstrated that BPD occurs in childhood or no later than early adolescence or early adulthood, we may arrive the conclusion that the malady preexisted the marriage may invoke kiddushei ta’ut.",
+ "Had our panel employed the technique of kiddushei ta’ut based upon the aforementioned argumentation in general and reliance on the psychologist’s testimony and the findings of the professional literature in particular, our posture would have “chartered a new course” in contemporary times beyond the innovative thinking of the dayanim who approved of the Haifa decision. Whereas, in the Haifa case, professional opinion contends that there were psychological precursors to the emergence of schizophrenia, in our case, prior to marriage Nitva’s behavior does not reveal any symptoms which indicate the subsequent emergence of BPD. At best one may argue that the psychologist’s testimony as well as the findings of the professional literature may impart credence to the Poskim who seem to invoke kiddushei ta’ut regarding certain behavior even though the conduct only manifests itself after the marriage.",
+ "We leave this matter as unresolved and left for further discussion.",
+ "2.",
+ "In our case, we have been addressing a situation where a husband had certain psychological disorders that the husband failed to disclose prior to the marriage. However, it took many years for the wife to discover his impairment.",
+ "However, how would a beit din address a scenario where prior to the marriage the husband communicated to his wife that he had a psychological disorder? Let us assume that nonetheless, in consultation with a health care professional, she understood his impairment and yet she chose to marry him. Subsequently, a few years into the marriage, his psychological condition deteriorated and she exclaimed, “Had I known that his condition would degenerate, I never would have married him.” Whereas prior to the marriage she felt that she would be able to handle the situation, the depth and severity of the disorder now preempts that possibility.",
+ "Shulhan Arukh rules,",
+ "A man who is mentally dysfunctional on a daily basis and his wife says, “my father in the time of his stress married me off and I thought I would be able to deal with the matter. Now, I realize that he mentally dysfunctional and I fear that in his rage he will kill me.” [In such a case] we don’t coerce him to give a get.",
+ "Despite the fact that the wife’s situation is life-threatening, Shulhan Arukh does not sanction get coercion! Explaining the rationale for this ruling, Gaon of Vilna states,",
+ "Since she knew we do not say that say “she thought she could handle the situation . . .”",
+ "To state it differently, a wife cannot initially claim that she thought she would be capable of dealing with her husband’s condition and now realizes that she can’t deal with him. Therefore, we do not coerce a get.",
+ "Nonetheless, many Poskim disagree with Vilna Gaon’s view.",
+ "Even though she knew that her prospective husband had skin boils prior to the marriage and she accepted this defect in the form of a tenai (a condition to the marriage), nonetheless the students of Rabbeinu Yonah note,",
+ "Except for a husband who has skin boils (mukeh shehin) that she can say “now I am unable to deal with it since daily the sickness becomes more severe” . . .",
+ "In other words, her change of heart regarding her ability to live with a husband who was afflicted with boils would trump her tenai and get coercion is permissible.",
+ "The question is what is the reason why the persistence of a husband’s skin boils ought to undermine the tenai? Addressing a young woman who was dysfunctional the majority of the time and exhibited moments of sanity only portions of the time prior to the marriage and subsequently became a shoteh (completely mentally dysfunctional), R. Aryeh Leibush observes,",
+ "Accepting a mum only is applicable if the condition remains the same. However, the degree of mental dysfunction changes from one period to the next therefore he accepted the situation in her condition that she was prior to the marriage; and the insanities that emerged afterwards he could not tolerate them and therefore one cannot say that he accepted it.",
+ "On the basis of this reasoning, R. Feibish lifts the herem of Rabbeinu Gershom, which prohibits a husband to give a get against his wife’s wishes, and permitted him to remarry.",
+ "The notion that the depth and severity of a medical condition may change for the worse is also noted regarding a wife who had epilepsy and a wife who exhibited a neurological and cerebral disease. As such, should there be a behavioral change, a prior statement that he accepts the situation may be discounted. Consequently, these authorities allowed the husband to remarry without the wife receiving her get.",
+ "All the aforesaid rulings deal with grave defects concerning a wife; it is open to debate whether we could apply the same conclusion regarding the flaws of a husband. In recent years, two Israeli rabbinical court decisions apply this conclusion dealing with a wife’s defects to a husband’s flaws and stated that such a conclusion is acceptable among the Poskim without citing support to their judgment."
+ ],
+ "h) May a beit din obligate a husband to give a get due to \"igun\"?": [
+ "Plonit v. Ploni",
+ "The Facts of the Case",
+ "In June 2000, Ploni and Plonit were married. In the wake of acts of domestic violence, such as unauthorized touching of private parts of her body by Ploni, Plonit filed a police report on July 23, 2005. After the police took depositions from both parties, the police placed Ploni under arrest for forcible touching. Subsequently, Ploni was arraigned in Kings County Court in Brooklyn, NY. In early August 2005, a temporary order of protection was issued against Ploni directing him to refrain from assault, stalking, harassing, forcibly touching, and other matters against Plonit. This order of protection was extended until November 1, 2006 and became a full order of protection in early 2006.",
+ "Though they both remained in the marital home, the couple has led separate lives since the time of the incident reported in July 2005. In mid July 2006, the court directed both parties to leave the marital home by the end of the month.",
+ "In August 2007, Plonit summoned her husband to the beit din regarding the matter of the get. Despite being summoned to our beit din three times, Ploni refused to appear and we issued a seruv (an order of contempt) against him. Subsequently, Ploni deposited a get al tenai (a conditional divorce) with another beit din. Prior to giving the get, Ploni wanted Plonit to reimburse him for the monies she had absconded from him. To date, Plonit has neither reimbursed the monies nor received her get.",
+ "We convened a yeshivat beit din where the panel listened to Plonit’s concerns during the marriage and her request to address the matter of her receiving a get.",
+ "Discussion",
+ "Whether a husband is obligated to give a get hinges generally on whether there exists an “ilat gerushin” (a ground for the divorce). Without providing a systematic presentation of the various ilot gerushin, the ilot may be subdivided into two categories. One type of an ila relates to the inability of a wife to have conjugal relations with her husband due to the fact that he is afflicted by a contagious and/or dangerous disease or by dint of her revulsion of his body odor which is linked to his occupation. On the other hand, a husband’s inappropriate behavior may serve as a justification for divorce. For example, spousal rape, refusal to cohabitate with his wife, physical and/or emotional abuse of his wife, or refusal to financially support her may serve under certain conditions a claim for obligating a husband to give a get.",
+ "Based upon the cumulative evidence submitted to this panel, none of the above claims were advanced by Plonit. Therefore, the question is are there any grounds to obligate the husband to give a get?",
+ "Rabbeinu Yeruham rules,",
+ ". . . . when the woman says “I don’t want him and he should give a get and ketubah” and he also says “I don’t want you but I don’t want to give you a divorce”. She is not considered a moredet (a rebellious wife). But we wait twelve months maybe they may rethink (their decision). After a year we force him to divorce her. . . .",
+ "In accordance with Rabbeinu Yeruham’s position, we are dealing with a “dead marriage” where both parties mutually separate and each one does not want to remain with the other. The wife has left the husband voluntarily and the husband does not want her. The separation began with the wife’s plea for her get by stating, “I don’t want him and he should give a get and ketubah” and as a direct result of her plea, the husband responds, “I don’t want you but I don’t want to give you a divorce.” In such a case, Rabbeinu Yeruham directs the husband to give a get. Rabbeinu Yeruham does not inquire whether the husband’s statement of “I don’t want you” is a result from his wife’s rebellion or is unrelated to this fact. Since neither party wants to live with the other and twelve months have elapsed, the husband is obligated to give her a get and is prohibited from being “me’agein” his wife by withholding a get. In accordance with Rabbeinu Yeruham, we are not concerned as to who is responsible for the separation. Once the couple separates and does not want to live with each other, a get is coerced in order to preempt the possibility of “igun”.",
+ "Though Rabbeinu Yeruham’s view has not been memorialized in Shulhan Arukh or Rema, numerous contemporary dayanim endorse his position. In fact, the late R. Shlomo Sha’anan, a dayan who served on the Tel Aviv Regional Beit Din and Beit Din ha-Rabbani ha-Gadol in Yerushalayim, adduces various proofs that both Shulhan Arukh and Rema, as well as other Poskim, implicitly endorse Rabbeinu Yeruham’s view.",
+ "Notwithstanding some Poskim who contend that “a dead marriage” per se will not serve as grounds to obligate a husband to give a get to his wife unless there exists an “ilat gerushin” (a specific ground for the divorce), such as the unwillingness to sire children, refusal to support his wife, or being physically and/or emotionally abusive towards his spouse, as we mentioned there are Poskim who will obligate a get solely based on the view of Rabbeinu Yeruham. In fact, in part relying upon a ruling of R. Akiva Eiger, the commentary of Penei Yehoshua, Shulhan Aruch’s ruling, and Hazon Ish, and invoking Rabbeinu Yeruham’s concern to avoid the possibility of “igun”, some battei din obligate a husband to give a get to his wife.",
+ "Based upon the cumulative evidence submitted to this beit din, it is our understanding that the couple has been separated for over a year. Notwithstanding Rabbis Hayyim Pelagi and Moshe Feinstein as well as numerous Israeli rabbinical courts who mandate the obligation of giving a get only after a year and half of separation provided that there are no prospects for marital reconciliation, in accordance with Rabbeinu Yeruham’s position and concern to avoid “igun” in a situation of “a dead marriage”, we are obligating Ploni to give a get to Plonit.",
+ "Given that it is clear to this panel that Ploni is entitled to be reimbursed for the monies that were stolen from him by Plonit, the question is whether Ploni has a right to withhold giving the get until Plonit reimburses him? Addressing the scenario of a husband who was imprisoned for 15 years and, when individuals begged him to give a get, he agreed to give a get contingent upon the wife’s readiness to return some of his assets to his father. Though the wife agreed to the return, the husband’s father refused to accept them. As such, the issue arose for Rabbi Shalom Schwadron whether the husband’s giving of the get could be conditional upon the return of his assets. His reply was that in these circumstances we cannot coerce him to give a get. Some aharonim and some panels of Israeli dayanim have adopted this approach.",
+ "Responding to the situation of a childless marriage, (which served as the grounds for the beit din judgment to coerce a get), the husband desirous to remarry stipulated that his wife would receive her get provided that she agrees to refrain from marrying any man who was a member of the Jewish municipal government. Rashba rules,",
+ "Regardless of the circumstances, anyone who is obligated to divorce cannot stipulate that she cannot marry whomever she wants, and anyone who divorces thus (under such a condition), we coerce him to divorce with a definitive divorce (get gamur) without a condition.",
+ "Seemingly, one may contend that Rashba’s opposition to imposing a condition prior to a husband’s granting a get is limited to the specific condition of the case which circumscribes a wife’s inability to remarry anyone she desires. But, in fact, Rashba’s words “we coerce him with a definitive divorce” teaches us that, in the wake of a beit din’s decision to coerce (or to obligate) a get, a precondition is proscribed under all circumstances. Such is the understanding of his position by Maharsham and others. Other rishonim (early authorities) such as Rosh, Tashbetz, and Rashbash did not explicitly mention Rashba’s view but agree with him. Already in the sixteenth century, normative Halakhah coalesces around Shulhan Arukh’s acceptance of Rashba’s position. In fact, concerning this matter, R. Ya’akov Kastro, a contemporary of R. Karo (the author of the Shulhan Aruch), states that “we listen to the rishonim.” As R. Zalman Nehemiah Goldberg astutely notes, this position dates back to Tosafot. In subsequent generations, various Ashkenazic as well as Sephardic Poskim have argued that in the wake of a beit din directive to obligate a get, a husband cannot impose any conditions prior to giving a get.",
+ "Based upon the aforementioned authorities we rule that since we are obligating Ploni to give a get, therefore conditions cannot be advanced that in effect would delay the giving of the get.",
+ "In the event that Ploni refuses to comply with our psak din, we are invoking the harhakot introduced by Rabbeinu Tam in the format of withholding certain social and economic benefits.",
+ "Decision",
+ "Therefore, we are obligating Ploni to give immediately a get unconditionally to Plonit. Should a get fail to be forthcoming within two weeks of receipt of this psak din (decision), we are directing the Jewish community to implement the following isolating measures:",
+ "“Harhakot de-Rabbeinu Tam” for a wife who pleads “ma’is ali” (he is repulsive to me) and the husband refuses to divorce her:",
+ "To all our brothers of the house of Israel in every place:",
+ "Appearing in front of us was Plonit with her argument of “ma’is ali” concerning her husband. However, Ploni refuses to divorce her because he wants to be me’agein her (chain her to him) and pain her.",
+ "Therefore, this beit din decrees with a severe oath (be-alah hamurah) that every man and woman of the house of Israel is forbidden to speak with him, to do business with him, to circumcise his son, to provide him with food and drink, to interact with him, to visit him during his time of illness, and to bury him in a Jewish cemetery.",
+ "Additionally, he should neither receive kibbudim (honors) and aliyot (being called up for the reading of the Torah) in any beit knesset nor be accorded honors by any Jewish institution."
+ ],
+ "i) A wife's refusal to receive a get and \"the lifting of the herem of Rabbeinu Gershom\"": [
+ "Facts of the Case",
+ "On December 31, 2004, Shlomo Samuels married Dina Stein. Both were Ashkenazic and in their late forties at the time of their marriage. The couple separated on April 19, 2012. It is our understanding that the couple mutually agreed to dissolve the marriage. Approximately a year ago, Dina allegedly told Shlomo she would only receive a get (a Jewish writ of divorce) upon the final resolution of a financial settlement. As of the date of this decision, Dina has refused to receive a get from Shlomo. Shlomo has told us that he would like to remarry and have children and has requested the beit din to address the matter of the get. We have summoned Dina three times to appear at a hearing. However, on June 21, 2014, she communicated to us that upon the finalization of the settlement she would be prepared to receive a get and refused to attend a beit din hearing. Given her unwillingness to appear at the beit din hearing, on July 19, 2014, we convened a hearing and heard Shlomo’s claim regarding the get. Among Shlomo’s statements at the hearing was that it would take between one to two years to finalize the monetary settlement and he was not prepared to wait such an extended period of time to execute a get. It was already over two years since their separation and he argued it was time to be divorced in accordance to Orthodox Jewish law. In reply to our question how he could corroborate his desire to have children, he submitted invoices attesting to the fact that some of Dina’s eggs were frozen for reproductive purposes and he had some of his sperm frozen during their years of marriage prior to separation. After deliberating on the case, we rendered a psak din, a decision that Shlomo ought to give a get to his wife and Dina ought to receive the get from him. To date, Dina has refused to comply with our beit din decision.",
+ "Discussion",
+ "According to the classical sources of Halakhah, namely the Mishnah and Talmud, whereas a woman is proscribed from marrying more than one man at a time, a man is permitted to be married to more than one woman. Second, whereas a man must consent to divorce his wife, the woman’s consent is not required for her husband to divorce her, and if she is given a get against her will, she is halakhically divorced.",
+ "Over the course of time and for varying reasons, during the eleventh century there emerged rabbinic legislation known as takanot of Rabbeinu Gershom. Among the pieces of legislation enacted at the time, there was a prohibition upon a man to marry more than one woman and that the wife must consent to a divorce. The former prohibition guaranteed that a husband could not marry a second wife without dissolving his first marriage. In effect, a husband was now on equal footing with his wife when it came to divorce. Neither could end the marriage unilaterally and neither could remarry without a get. Many Poskim were of the opinion that this legislation was in force until the end of the fifth millennium. Others claim that there was no time limit on its operation. However, even those authorities who argue that the legislation lapsed at the end of the fifth millennium agreed that it became minhag (a customary practice) today to comply with its prohibitions. In other words, the herem (the sanction of excommunication) of Rabbeinu Gershom for failure to comply with the legislation continues to be in force.",
+ "This double prohibition outlawing bigamy and forbidding the coercing of a get against a wife’s will may result in a husband being unjustifiably fettered in a situation where he would otherwise not be required by Halakhah to maintain his marital ties and yet he may not divorce her against her will. For example, in our scenario, given the duration of time since the separation and the desire of the husband to remarry, there are grounds to obligate a get. However, in accordance with takanot of Rabbeinu Gershom, he is unable to divorce her against her will.",
+ "Given that Dina has chosen to refrain from accepting a get, we must address whether there are grounds for a “heter” (release) from this prohibition against bigamy which would permit Shlomo to remarry by depositing a get in a beit din. That being said, that does not mean that the first wife is divorced, but that the husband is granted permission to contract an additional marriage. Should such a heter be given based upon an exhaustive examination of the facts, the husband is obligated to deposit a get (hashlashat ha-get) and the value of the ketubah (assuming the wife is entitled to receive it) or provide security for ketubah payment in a recognized beit din where his first wife may pick up the get at anytime.",
+ "In light of the circumstances of our case, can a husband receive a heter from the prohibition of bigamy via a hashlashat ha-get and deposit of the value of the ketubah and thus receive permission to remarry? Is the legislation applicable in all situations or are there cases where the legislation is inapplicable and therefore a husband may marry a second wife? Assuming there are situations where the legislation is inapplicable, may a beit din allow him to remarry without a heter me’ah rabbanim(permission from 100 rabbis from three different countries and three different communities)?",
+ "The question is whether the fact that a wife refuses to appear in a beit din has ramifications for the applicability of Rabbeinu Gershom’s rabbinic legislation.",
+ "The Sanzer Rov and R. Yehoshua Heschel rule if a wife refused to comply with a beit din’s psak din to accept a get, Rabbeinu Gershom’s legislation is inapplicable under such circumstances. As such, despite the wife’s protestations, a get may be deposited by a husband in a beit din and the husband is free to remarry.",
+ "Other Poskim (decisors of Halakhah) have expanded this heter (permission), which deals with a wife who refuses to comply with a beit din judgment, to the situation of a wife who refuses to appear in beit din. R. Teitelbaum testified that his brother-in-law R. Ashkenazi testified that the author of Havot Da’at allowed a husband to remarry in such a situation with the approval of other scholars of the generation. Others, including but not limited to Rabbis Akiva Eiger, Ya’akov of Lisa, and Ya’akov Katz agree with this position. As such, despite the wife’s protestations, a get may be deposited in a beit din and the husband is free to remarry. Whether one requires a heter me’ah rabbanim prior to remarriage in this situation is subject to debate.",
+ "Despite the fact that we sent out three hazmanot (summonses) to appear in beit din, she refused to appear. Failure to appear in a beit din labels her as a “mesarevet le-din” (one who refuses to appear in beit din) and may result in a communal sanction known as “niddui” (excommunication). Given that Dina is a mesarevet le-din, there are grounds for divorce based on her being (or being akin to) “overet al da’at yehudit” (lit. transgressing the religion of Judaism). Conventionally, if a wife exhibits continued immodesty or slights her husband by cursing or assaulting him and/or behaves in a fashion that undermines family stability in front of their children, there would be grounds to label her as an “overet al da’at yehudit”. Consequently, there are Poskim who argue that as an overet al da’at yehudit, a get may be deposited in a beit din despite the wife’s protestations and the husband is free to remarry without the need to receive a heter me’ah rabbanim. Nonetheless, there are Poskim who disagree and claim that refusal to appear in a beit din would not be an example of overet al da’at yehudit, which deals with conduct directly affecting her husband in general and family tranquility in particular. Nonetheless, relying upon Beit Shmuel and Helkat Mehokeik, R. Hayyim Halberstam (the Sanzer Rov) contends that failing to appear in a beit din preempts the husband from engaging in having children and therefore directly relates to her husband. And therefore she is an overet al da’at yehudit. R. Shmuel Engel expands this notion by claiming that a wife who withholds a get indirectly causes her husband to engage in “hirhurei aveirah” (i.e. thoughts of sin) and therefore she is to be labeled as an overet al da’at yehudit and we may release him from the prohibition of polygamy.",
+ "Given that we afforded the opportunity for Shlomo to advance his arguments and for Dina to respond to his claims, based upon the evidence submitted, there are grounds to permit the husband to remarry without transgressing the prohibition against polygamy. Implicit in this position is that when a wife is overet al da’at yehudit, one may divorce her against her will and the herem is inapplicable.",
+ "Moreover, based upon the foregoing position that a wife who refuses to resolve a matter in beit din may serve as a reason for allowing a husband to remarry without his wife receiving the get, it is not unsurprising to find Poskim who have expanded a husband’s release from the prohibition of bigamy to the situation of a wife who refuses to accept the judgment of a beit din. In our scenario, we obligated Dina to receive the get but she has chosen to refrain from complying with our judgment.",
+ "Furthermore, in a situation where the husband has yet to fulfill the mitzvah of having children, R. Ovadiah Yosef argues this is an additional reason to allow him to remarry. In fact, the Tzemach Tzedek (the third Lubavitcher Rebbe) states that most authorities hold that in a situation of fulfilling a mitzvah, Rabbi Gershom’s legislation is inapplicable. As such, despite the wife’s protestations, a get may be deposited by a husband in a beit din and a husband is free to remarry. Whether a heter me’ah rabbanim is required in this situation prior to the deposit of the get is equally subject to controversy.",
+ "In our case, Shlomo who presently is 50 years old, wants to remarry and sire a child, and does not want to wait any longer, and therefore he requests relief from our beit din. Should a Jew marry a Jewess and have no children for ten years, he is still required to fulfill the mitzvah of siring children and he ought to divorce her and marry another woman who is capable of having a child. Some decisors, Ashkenazic and Sephardic alike, argue that the herem of Rabbeinu Gershom is inapplicable in this situation. Even if there they were childless before the lapse of ten years, the husband would be released from the herem. Furthermore, in accordance with R. Schneersohn, most Poskim contend that the herem is inapplicable in a case where there is a delay in fulfillment of a mitzvah. Finally, though there are authorities who argue that a husband may be released from the herem in a case of igun when he is young and therefore may be subject to thoughts of sin which may lead to engaging in illicit affairs, in our scenario we are dealing with an older man who is not Torah-observant and has been separated from his wife for two years already and may continue to be separated for another year or two until the outstanding financial matter is resolved, those authorities may concur that he should be equally released from the herem!",
+ "Another basis for the inapplicability of the prohibition against polygamy is that we are dealing with an igun situation. As we mentioned in our first psak din, in a situation where there exists no prospects for marital reconciliation and a couple have been separated for at least a year (some argue eighteen months), a get should be given by the husband and received by the wife. Our conclusion is based upon a ruling emerging from a fourteenth-century Sephardic case. A wife was a moredet (she refused to engage in conjugal relations with her husband) for an extended period of time and a beit din attempted to broker shalom bayit. However, their efforts to promote domestic tranquility were unsuccessful and therefore the panel mandated that a get be given. Though the husband was ready and willing to give a get to his wife, his spouse was unwilling to receive the get. Relying upon the well-known position of Ra’avan concerning a rebellious wife, Rabbis Hayyim ben Yona, Yisrael ben Yoel Zuslin, and Eliezer ben Yitzhak rule that in a situation of igun the prohibition against bigamy is inapplicable. During the same century, the teacher of Rabbi Hayyim ben Yona issues a psak with the approval of the Torah scholars of Prague that a husband could divorce his wife against her will when she was me’agein him. Though in the fifteenth century Maharil rejects their position, R. Yisrael Kutna, R. Shmuel de Medina, and an Israeli rabbinical court rely upon the earlier rulings of Ravan and others, stating that in a case of igun a husband can divorce her against her will and there is no requirement of receiving a heter me’ah rabbanim.",
+ "In short, there are four grounds for releasing Shlomo from the herem of Rabbeinu Gershom: his desire to have a child, Dina’s recalcitrance in appearing for a hearing, failure to comply with our beit din decision, and the fact that she is me’agein him.",
+ "Whether we can issue a heter ni’ssuin (permission to remarry) without the permission of 100 rabbis from three different countries is contingent upon how one understands the scope of the rabbinic legislation of Rabbeinu Gershom. One approach espoused by Bah and endorsed by R. Moses Issereles is the following:",
+ "What is found in the words of Aharonim (later authorities –AYW) that will agree with a heter me’ah rabbanim and this is the mesorah they received from the beit din of Rabbeinu Gershom . . . when a matter arises between a husband and wife that would be improper to apply the herem, permission ought to be given with the agreement of 100 rabbis in order that it would not be easy in the eyes of future generations to allow for him to marry another woman. Therefore the practice has been by our rabbis to allow him to marry another woman when his wife has become mentally dysfunctional with the concurrence of 100 rabbis and this has been done a few times.",
+ "And in pursuance to Ahiezer, under all circumstances the minhag is that we need a heter rabbanim prior to permitting a husband to remarry. Rabbis Moshe Sofer, Shalom Schwadron, and others require a heter me’ah rabbanim where a wife refuses to appear in beit din. When dealing with a mitzvah, some require a heter me’ah rabbanim. Consequently, in the case of a childless marriage, Maharash Engel mandates a heter me’ah rabbanim prior to permitting a husband to remarry where the wife refuses to accept a get.",
+ "On the other hand, other Poskim claim that the scope of the rabbinic legislation is much narrower. In the words of R. Meir of Padua,",
+ "Even if they (the dayyanim –AYW) have a clear reason they required 100 men from three countries . . . Nonetheless, it seems that when he (Rabbeinu Gershon –AYW) said “a clear reason to release” we are referring to a situation where the legislation was inapplicable but the legislative was operative . . . Nonetheless, where we can determine that in a particular place Rabbeinu Gershom did not legislate ever . . . the authority and permission is given to us”",
+ "Consequently, where the wife is at fault one does not requires a heter me’ah rabbanim. In accordance with this view, Rabbeinu Gershom does not proscribe polygamy in situations where a wife was me’agein her husband, a recalcitrant wife who would neither attend a beit din hearing nor comply with a psak of beit din, and/or where there was a childless marriage. Under such circumstances, a beit din is empowered to allow a husband to marry a second woman provided there was hashlashat ha-get and the value of the ketubah was deposited at a recognized beit din. Based upon our foregoing presentation of the various grounds for allowing a heter nissuin, it is clear that those authorities have explicitly or implicitly adopted the latter approach regarding the scope of Rabbeinu Gershom’s takanah. As such, being me’agein a husband, failure to attend a beit din hearing, failure to abide by a beit din judgment, and a childless marriage are grounds for a heter nissuin without a requisite need for the issuance of a heter me’ah rabbanim. Addressing the scenario of an Ashkenazic husband whose wife refused to receive a get, who was recalcitrant concerning appearing in a beit din, and who did not have a child, the late Chief Rabbi R. O. Yosef, relying upon numerous Ashkenazic decisors, contend that he would deposit a get in a beit din accompanied by the value of the ketubah and the husband was free to marry without a heter me’ah rabbanim. More recently, a Tel Aviv-Yaffo Regional Beit Din opine that a husband would receive a heter nissuin (without the need to execute a heter me’ah rabbanim) in a case where the wife refuses to receive a get and is me’agein her husband while awaiting the resolution of whether she is entitled to a ketubah. Based upon these two contemporary rulings, the support of numerous aharonim, and the additional ground that Dina refused to comply with our psak din, we rule that Shlomo may remarry without a heter me’ah rabbanim by executing a hashlashat ha-get, i.e. depositing of a get in beit din.",
+ "To buttress our ruling, admittedly there are Poskim who clearly will mandate that a heter me’ah rabbanim is either required prior to allowing a husband to remarry when his wife refuses to appear in beit din or when dealing with a childless marriage. Given that there is a debate whether a heter is mandated in certain situations, there emerges a sefek sfeika (a double doubt). Firstly, since according to most authorities we are dealing with rabbinic legislation, we invoke the rule kol sfeika de-rabbanan le’kula (a matter of doubt that relates to a rabbinic issue such as herem of Rabbeinu Gershom is resolved according to the lenient opinion). And even if you argue that the stringent opinion is to be determinative due to the fact that some contend that a violation of this herem is akin to transgressing a de-oraita (a biblical matter), there remains the safek that this herem was only in force until sof elef hahamishi (i.e. the year 1240). Given the safek sfeika, we rely on the lenient opinions, which would release the husband from the prohibition of bigamy.",
+ "Given that there is an outstanding financial matter between the couple, the question is whether a wife is entitled to withhold a get until the issue is resolved. To state it differently, even if the wife is me’agein her husband, can this situation continue until all financial matters have been resolved between the couple? In accordance with at least three Israeli rabbinical court decisions, the question is which party is responsible for the divorce. If the dissolution of the marriage is due to the fact that the husband acted improperly and left the marriage, then the wife may refuse to receive the get prior to resolving her financial claim(s). On the other hand, should the wife be liable for the marital breakdown then she is obligated to receive the get unconditionally and the pending financial issue(s) ought to be resolved after the get has been executed.",
+ "However, implicitly following Pithei Teshuvah’s view and foreshadowing an Israeli psak din, as we mentioned, R. Moshe Feinstein rules,",
+ "In the matter of a husband and wife who have for many years have not experienced marital tranquility, and they have been residing in separate homes for one-and-a-half years already . . . and we have a signed beit din statement that marital reconciliation is impossible, therefore according to Halakhah they are obligated to divorce. And neither party has permission to be me’again (chain) his partner, neither the husband of the wife nor the wife of the husband, by delaying [the get] due to a monetary claim.",
+ "In other words, in pursuance to R. Feinstein’s position, neither party can be me’agein his/her spouse regardless of who is responsible for the marital dissolution due to an outstanding monetary matter.",
+ "Since Dina never appeared in front of this panel and therefore we were unable to ascertain who was responsible for the breakdown, we aren’t required to decide whether we would follow the view of R. Feinstein or the Israeli beit din rulings. As such, in light of the aforementioned authorities, in a situation where a wife is me’agein her husband there are grounds for a husband to remarry without requiring a heter me’ah rabbanim.",
+ "Therefore, Shlomo is not obligated to pay the value of the ketubah.",
+ "Decision",
+ "Shlomo is directed to personally or via the appointment of a shaliah (an agent) to deposit a get at an Orthodox Jewish beit din or provide a shtar, a bonified halakhic document noting that Shlomo is obligated to pay the value of the ketubah and Dina may receive the get from the beit din at her earliest convenience. Upon depositing the get at the beit din, Shlomo is free to remarry."
+ ]
+ }
+ }
+ },
+ "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 ג",
+ "categories": [
+ "Halakhah",
+ "Modern",
+ "Rabbinic Authority Series"
+ ],
+ "schema": {
+ "heTitle": "סמכות רבנית כרך ג",
+ "enTitle": "Rabbinic Authority III",
+ "key": "Rabbinic Authority III",
+ "nodes": [
+ {
+ "heTitle": "פתח דבר",
+ "enTitle": "Preface"
+ },
+ {
+ "heTitle": "חלק א",
+ "enTitle": "Part I; Rabbinic Authority; The Vision",
+ "nodes": [
+ {
+ "heTitle": "פרק א",
+ "enTitle": "Chapter 1; The Consensual Nature of Halakhic Divorce"
+ },
+ {
+ "heTitle": "פרק ב",
+ "enTitle": "Chapter 2; The Propriety of a Conditional Divorce"
+ },
+ {
+ "heTitle": "פרק ג",
+ "enTitle": "Chapter 3; A divorcee's relief from the consequences of an exploitative divorce agreement"
+ },
+ {
+ "heTitle": "פרק ד",
+ "enTitle": "Chapter 4; Division of marital assets upon divorce; From Metz Rabbinical Court of the Eighteenth Century to the Israeli Rabbinical Courts in Contemporary Times"
+ },
+ {
+ "heTitle": "פרק ה",
+ "enTitle": "Chapter 5; Two types of Bittul Kiddushin; Kiddushei Ta'ut and Umdana"
+ },
+ {
+ "heTitle": "פרק ו",
+ "enTitle": "Chapter 6; The efficacy of \"get zikui\"; From conferring an absolute benefit upon a wife (\"zakhin le'adam\") to acting for the absolute benefit from a husband (\"zakhin me'adam\")"
+ },
+ {
+ "heTitle": "פרק ז",
+ "enTitle": "Chapter 7; An Inquiry into some of the varying halakhic traditions regarding the appropriateness of a divorcee marrying a kohen"
+ }
+ ]
+ },
+ {
+ "heTitle": "חלק ב",
+ "enTitle": "Part II; Rabbinic Authority; The Reality",
+ "nodes": [
+ {
+ "heTitle": "פרק ח",
+ "enTitle": "Chapter 8; Decisions in Even haEzer",
+ "nodes": [
+ {
+ "heTitle": "א",
+ "enTitle": "a) The validity of the act of kiddushin without the presence of two eidim"
+ },
+ {
+ "heTitle": "ב",
+ "enTitle": "b) Bittul Kiddushin; The invalidation of an eligible eid kiddushin"
+ },
+ {
+ "heTitle": "ג",
+ "enTitle": "c) A non Orthodox mesadeir kiddushin and ineligible eidei kiddushin"
+ },
+ {
+ "heTitle": "ד",
+ "enTitle": "d) \"If he acts improperly, we may act improperly\""
+ },
+ {
+ "heTitle": "ה",
+ "enTitle": "e) The scope of the mais ali plea and the imposition of harhakot (\"the isolating measures\") of Rabbeinu Tam"
+ },
+ {
+ "heTitle": "ו",
+ "enTitle": "f) A husband's premarital misrepresentations; A case study in bittul kiddushin"
+ },
+ {
+ "heTitle": "ז",
+ "enTitle": "g) A mentally dysfunctional husband; A case study in kiddushei ta'ut"
+ },
+ {
+ "heTitle": "ח",
+ "enTitle": "h) May a beit din obligate a husband to give a get due to \"igun\"?"
+ },
+ {
+ "heTitle": "ט",
+ "enTitle": "i) A wife's refusal to receive a get and \"the lifting of the herem of Rabbeinu Gershom\""
+ }
+ ]
+ }
+ ]
+ }
+ ]
+ }
+}
\ No newline at end of file