Avodah Mailing List

Volume 03 : Number 081

Monday, June 7 1999

• MB / Psak
• RE: Avodah V3 #76
• Re: MB / Psak
• Re: Lashon Harah
• Hisha'arus HaNefesh
• Gemoro, may err in metzius
• re: Psychology
• Re: geirus ba'al korcha
• Re: metzius and chazal
• Halocho and Metzius
• Re: Avodah V3 #76
• chickens defining bein hashmasas
• Re: Avodah V3 #76
• Re: chickens defining bein hashmasas
• Re: chickens defining bein hashmasas
• Error in the Creation of Jewish Marriages: Part 1

>>A Posek not exercising the quest for YS as an integral - albeit subtle - 
component of the process, is like the Chazzan who knows the words, but not the 
nusach.

YGB<<

And I would say a poseik should be interested in arriving at a true clear Psak, 
w/o regard to chumro kulo and should be using Yiras Shomayim in the sense of 
Siyyato dishmayo to arrive at the proper psak RATHE than conside his Psak as 
PROMOTING Yir'as shomayim.

When I ask if this meat is kosher, I want the rav to analyze the facts and the 
halocho and come up with an honest-to-goodness decision, not a musar shmuz about
the possibility (albeit remote) that after all this meat MIGHT be treif.


Rich Wolpoe

       

On Sat, 5 Jun 1999 toramada@netvision.net.il wrote:

> I haven't read the relevant posts, but I would think that this kind of
> categorization was more suitable pre-WWII (more or less). 
> 
> One of the major differences between our present world and the one the
> above division represents is the understanding that a definition such as
> the above is irrelevant as it ignores the personalities and Techunot of
> the people following these paths. 
>

For those who have similar sentiments, I would suggest seeing my essay in
the Tammuz issue of Ha'Ma'ayan (the PAI quarterly) on R' Avrohom Eliyahu
Kaplan. Reprints available on request (Hebrew). (A part 2 will follow in
the Fall.)
 
> An old saying (that is usually said in jest) states that had Echad
> Ha'am, had been sent to a Litvische yeshiva and Bialik to a Chasidische
> Yeshiva - we would have had 2 more Gedolim today. 
> 

In the course of finishing the aformentioned Part 2 yesterday, I had to
consult Bialik for a poem. So, I read "HaMasmid" (Bialik wrote in
Ashkenazis) for the first time. All of a sudden, I realized for the first
time what the Yeshivos were up against at the time of the turn of the last
century. Wow! Our survival and victory, in the face of such foes with such
weapons - is nothing short of miraculous!

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

On Mon, 7 Jun 1999 richard_wolpoe@ibi.com wrote:

> And I would say a poseik should be interested in arriving at a true
> clear Psak, w/o regard to chumro kulo and should be using Yiras Shomayim
> in the sense of Siyyato dishmayo to arrive at the proper psak RATHE than
> conside his Psak as PROMOTING Yir'as shomayim. 
> 

Who can be guaranteed of Siyata d'Shmaya? MAybe the Chasam Sofer. The
average Posek?

> When I ask if this meat is kosher, I want the rav to analyze the facts
> and the halocho and come up with an honest-to-goodness decision, not a
> musar shmuz about the possibility (albeit remote) that after all this
> meat MIGHT be treif. 
>

There you go confusing Mussar with YS again. The Posek may, from a mussar
perspective, advise the questioner about "basar shehora bo chochom" but YS
very often dictates kulla, not chumra - as when hefsed merubeh or kavod
Shabbos etc. enter the picture. 

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

--- "sweinr1@icarus.cc.uic.edu" wrote:
> As part of the lashon harah thread, i would like to raise the
> question to
> a different level. What if as part of therapy with a
> psychotherapist one
> reveals things that would otherwise certainly be considered lashon
> harah.

It is my understanding that since speaking to a psychotherapist is
considered to'elet, all the rules of to'elet apply.  That means that
one is permitted to speak what is classicly considered LH to the
psychotherapist, but the psychotherapist is not necessarily supposed
to believe the veracity of the information.  Rather, the
psychotherapist should use the information to understand the thoughts
of the patient.

In any case, it is my understanding (my sister is a psychologist, but
I'm not) that psychotherapists never necessarily believe the truth of
what is said to them by their patients; rather they believe that the
patients truly believe the information and have reacted in a certain
way as a result.

The fact that the psychotherapist is forbidden--by reason of
confidentiality--from ever discussing the contents of the
psychotherapy is a plus from the perspective of LH.  Nevertheless,
this is not the basis of the heter; there is no need for
confidentiality when LH is repeated l'to'elet (of course, the rules
of LH create a certain "confidentiality" since the recipient of the
information is limited in the way he may use the information.)

Kol tuv,
Moshe
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Le'gabei Hisha'arus Ha'Nefesh and Olam Ha'Bo for goyim not shomrei sheva
mitzvos and eilu she'ein lahem chelek l'OH, l'ho'ir from the Gemoros in
Gittin where Unkelos was askei l'Bilam and Titus b'Ov, and in Sanhedrin
where Menashe came to R' Ashi b'chalom, and the Yerushalmi in Megilla
where twice the Gemoro says "Im bo'im Gerei Toshav l'Oh Antuninus
b'rosham" (there is a ta'us ha'defus "Tzedek").

Conclusion: There is Hisha'arus HaNefesh (Law of the Conservation of
Neshomo) for Akum and Resha'im (see end of Rosh Chodesh Haftara), and
sechar v'onesh - but in a different plane than OH (nicha tuva l'fi
ha'Ra'avad, ktzas tzorich iyun l'fi ha'Rambam, v'yesh l'yasheiv) -
perrhaps connected to the Shai Olamos shel kol Tzaddik v'Tzaddik, v'duk!

YGB

Yosef Gavriel Bechhofer
Cong. Bais Tefila, 3555 W. Peterson Ave., Chicago, IL, 60659
ygb@aishdas.org, http://www.aishdas.org/baistefila

 David Glasner <DGLASNER@FTC.GOV>


2) Excuse me, but is it arrogant to believe that the picture of the solar system
described by modern science is closer to the truth than the one (or ones) 
offered by Hazal? 

David Glasner
dglasner@ftc.gov<<

It is "arrogant" to assume that we have THE definitive understanding of the 
Gemoro and it is wrong.

What does Tzorich Iyum mean?  doesn't it tell us to dig deeper? 

Example : from esteemed listowner Micha:
My Rebbe, R' Dovid Lifshitz zt"l, offered something similar.
The maggot isn't even potentially treif until it's large enough to be
visible. L'ma'aseh, there are two causes for the existance of a maggot
large enough to be a problem: 1- the egg, 2- the food the larvae ate to
get that size. L'halachah, though, the egg doesn't count, as it too is
too small to have mamshus. So, the only remaining goreim is the food
around the egg. In a sense, therefore, it's still true that the visible
maggot is a toladah of the meat.<<

Doesn't this attempt at a Teirutz pre-suppose that R. Dovid was interested in 
being meyasheiev Chazal, IOW in reconcilliation as opposed to rejection?  The 
fact that R. Dovid's teirutz might not be THE elegant answer does not diminis 
his effort at being meyaan for one.

I'm not clear Shaul winreb's post from RSR Hirsch.  The point to me is, within 
the Halachic paradign, Chzazl did not "err".  IOW their Metizus statment were 
not strictly concerned with the physical universe, rather with the physical 
universe as tangential to halocho.

Illustration: there is a machlokes whether a mezuzo hsould be posted veritcally 
or horizontally.  We post it diagonally.  In a strict metzius sense, we are not 
yotzei either, what sceientist would equate diagonal with horizontal or 
veritcal?  But halacha has its own logic.

I think it is fallacious to assume that Chazal were  stirclyt making hard and 
fast scientific statements, or historical ones, for that matter.  They were 
operating primarily on the halachic, spiritual, metaphysical, metaphorical 
level. 

The mussar heskel is to realize that when the Chazal cannot be understood simply
of literally, rather than assume they were WRONG, assume that there is another 
meaning beneath the surface.

Rich Wolpoe  

--- Zvi Weiss <weissz@idt.net> wrote:
> > From: Moshe Feldman <moshe_feldman@yahoo.com>
> > R. Wolff is entitled to his opinion and psychologists are
> entitled to
> > theirs.  I would think that in order to prove "to'elet" one need
> not
> > prove the efficacy of a treatment but merely that one truly
> believes
> > it be beneficial.  Compare to chilul Shabbat for a medical
> procedure:
> > I don't have to prove that the entire medical community is in
> favor
> > of a certain treatment but that the doctor at hand believes it to
> be
> > efficacious.
> > 
> 
> ===> By Chilul Shabbat, it is not clear that a procedure that is
> "not
> accepted" can always be used.  

I didn't refer to a procedure which is *not* accepted.  Rather, I
referred to a procedure which is not necessarily accepted by the
*entire* medical community; i.e., a case where there is a difference
of opinion among doctors.  Moreover, my point wasn't evaluating *how*
controversial a specific treatment is; rather point was that for the
purpose of chilul Shabbat, a patient is allowed to rely on his doctor
as to the efficacy of specific procedure without investigating
whether the procedure has been accepted by all.  Similarly in the
case of LH: one may rely on the assumed efficacy of psychotherapy
(aside from the medical community, many rabbanim recommend it too) to
create to'elet.

> Is
> there a
> specific source that one merely has to *believe* that something is
> effective for it to be considered "to'eles"?  

I would think that there must be reasonable basis for the belief
(since LH involves some damage to others, and in this regard is
different from chilul Shabbat, which according to many poskim is
"hutra" rather than "d'chuya" when there is pikuach nefesh; moreover,
chilul Shabbat is bein adam la'makom rather than bein adam
l'chaveiro).

> I would also note
> that given
> the general suspicion that I have seen vis-a-vis the Mental Health
> profession (because they "profession" has taken such views as the
> "acceptance" of homosexuality) 

Outside charedi circles, it is my impression that there is no general
suspicion of the Mental Health profession (again, I recommend Rabbi
Moshe Halevy Spero's books and articles on this issue), other than
making sure that a frum patient does not go to a psychologist who
will try to draw him away from religion.  Any methodology can be
misused (as in the case of psychology's view of homosexuality); this
does not necessarily undermine the methodology itself.  In the case
of psychotherapy, it is my impression that there have been been
actual double-blind trials proving its efficacy in more than 50% of
cases.  (Just recently, there was a study showing that psychotherapy
coupled with certain antidepressants is substantially more effective
than antidepressants alone.)

Psychologists--to my knowledge--have not been able to "prove" that
homosexuality is "natural."  Rather they assume that as a postulate
and work accordingly (i.e., they do not try to "cure" a patient
suffering from homosexuality).  In fact, Anna Freud did consider
homosexuality a sickness and claimed to have been able to cure many
of her homosexual patients of their homosexuality.  (I believe that
modern psychologists dispute her findings.)

Kol tuv,
Moshe

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In a message dated 6/5/99 9:40:35 PM EST, RCB writes:

>  On this week's 
>  parsha the Shav Shameitza asks how Moshe could seperate from his wife when 
> he 
>  had not yet been mekayem peru u'revu - his former children were no longer 
> his 
>  because ger shenitgayer k'katan shenolad.

Pela, the Halacha is otherwise, especially where the children were Mgayeir 
too, see E"H 1:7,  However the question still remains because he only had 2 
boys no girl, Lichoroh one can answer that "Chashka Liboi B'torah"  see Beis 
Shmuel E"H 1 (5), even though he didn't have Torach Parnosoh since he got 
rich from "Psol Licho", nonetheless he had the concern of being ready at any 
moment, "Imdu V'eshm'oh".

> He answers that the geirus of 
>  Mattan Torah was ba'al korcham and on geirus ba'al korcham we don't apply 
> the rule of k'katan shenolad (ayen sham; he discusses further).  

Kvar Kodmoi the Gur Aryei on VaYigash 46:10.

OTOH the Meshech Chochmoh (Bhalosicho) learns from Shuvu Lochem Loholeichem 
that Ger Shnisgayeir Kkatan Shenolad Domi, since they were Muttor even if 
they married an Ervoh, however I recently saw a question on this from Rashi 
(Bamidbar 11:10).

Kol Tuv

Yitzchok Zirkind

--- "sweinr1@icarus.cc.uic.edu" <sweinr1@icarus.cc.uic.edu> wrote:
> I
> remember
> him giving the example of Chazal's understanding that a snake is
> pregnant
> for seven years and he quoted Plato as making the same statment to
> back up
> his assertion that chazal were only basing their words on the
> scientists of
> their time. 

In this regard, I recommend the article of my brother-in-law, Rabbi
Dr. Edward Reichman a couple of issues ago in Tradition (in the
medical halacha issue) dealing with Chazal's conception of
conception.  He showed how the assumption that a baby who was born
after 8 months is not a bar kayyama (but 7 months is OK) was actually
believed by the entire ancient world.

Kol tuv,
Moshe
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CB:>>Aside from technical halachic issues, the approach reduces haalcha to an 
artificial reality that does not engage the real world as we live in it.<<

Jewish Woman divroces in court w/o a get.  Marries a 2nd husband.  Is the  
resulting mamzer a problem of metzius or halocho?  Psyclogically speaking she 
feels no "guilt" since she thinks she' divorced.

Brothers separated at birth, can they be combined as eidim?  As krovim they have
litte emotional ties, so what is the psul?

What about gays who are presumed to be genetically programmed to feel attracted 
to their own gender?  Is the halocho a "real world" issue?

What about 3 pieces of meat 2 kosher and 1 treif. Is kol deporsuh merubbo porush
a physical reality?

Rich Wolpoe

In a message dated 6/7/99 9:43:35 AM EST, sbechhof@casbah.acns.nwu.edu writes:

> All of a sudden, I realized for the first
>  time what the Yeshivos were up against at the time of the turn of the last
>  century. Wow! Our survival and victory, in the face of such foes with such
>  weapons - is nothing short of miraculous!

Eloh Shebichol Dor V'dor Omdim Oleinu, we have to be vigilent against the 
foes and wepons of our time, and in any case V'HKB"H Matzileinu Myadam.

Kol Tuv

Yitzchok Zirkind

Last week someone asked if the time of a chicken laying an egg (based on the daf
last week)
can be used to clarify if bein hasmoshos is day or night. While the question was
quickly dismissed
on this list, it was dealt with by other serious achronim.
Al Hadaf (an excellent newsletter to use in conjunction with daf, put out by Rabbi
Zev Dickstein
of Monsey) quotes the Mahari Brunah as saying that if an egg was laid and a fruit
fell off a tree simultaneously
on erev shabbas the fruit is permitted since the egg laying defines it as day. Rav
Yosef Engel notes
that based on this, if a chicken lays an egg bein hasmoshos (after sunset) it should
establish it as still day.
similarly, if an ataleph lays an egg before tzas it should define it as already
night. He also cites the Shut Avnei Tzedek as wanting to use the egg laying test for
the bris of a boy born bein hasmoshos. The Pri Yitzchak
rejects these kinds of tests. See Al hadaf for more detail.

Ari

In a message dated 6/7/99 11:38:02 AM Eastern Daylight Time, Yzkd@aol.com 
writes:

<< 
 In a message dated 6/7/99 9:43:35 AM EST, sbechhof@casbah.acns.nwu.edu 
writes:
 
 > All of a sudden, I realized for the first
 >  time what the Yeshivos were up against at the time of the turn of the last
 >  century. Wow! Our survival and victory, in the face of such foes with such
 >  weapons - is nothing short of miraculous!
 
 Eloh Shebichol Dor V'dor Omdim Oleinu, we have to be vigilent against the 
 foes and wepons of our time, and in any case V'HKB"H Matzileinu Myadam.
 
 Kol Tuv
 
 Yitzchok Zirkind
  >>
No doubt we need to be thankful to HKB"H for all the chesed that he does for 
us. We should also consider that our "victory" comes (and I think this 
continues to be the case) at great cost - that is the large percentage of 
acheinu kol bet yisrael who are forever lost from us during this victory.  I 
don't know that a better outcome was (is) possible  but a moment of 
reflection (in hope of being sure that our current battle tactics maximize 
our efficiency) is probably appropriate as well.

Kol Tuv,
Joel Rich

In a message dated 6/7/99 11:40:05 AM Eastern Daylight Time, 
azz@lsr.nei.nih.gov writes:

<< 
 
 
 Last week someone asked if the time of a chicken laying an egg (based on the 
daf
 last week)
 can be used to clarify if bein hasmoshos is day or night. While the question 
was
 quickly dismissed
 on this list, it was dealt with by other serious achronim.
 Al Hadaf (an excellent newsletter to use in conjunction with daf, put out by 
Rabbi
 Zev Dickstein
 of Monsey) quotes the Mahari Brunah as saying that if an egg was laid and a 
fruit
 fell off a tree simultaneously
 on erev shabbas the fruit is permitted since the egg laying defines it as 
day. Rav
 Yosef Engel notes
 that based on this, if a chicken lays an egg bein hasmoshos (after sunset) 
it should
 establish it as still day.
 similarly, if an ataleph lays an egg before tzas it should define it as 
already
 night. He also cites the Shut Avnei Tzedek as wanting to use the egg laying 
test for
 the bris of a boy born bein hasmoshos. The Pri Yitzchak
 rejects these kinds of tests. See Al hadaf for more detail.
 
 Ari
  >>
Guilty as charged.  Does the Pri Yitzchak cite a basis for rejection(eg it's 
only rov etc.)?
After I asked the question, it occured to me that this doesn't work according 
to the shita that Ben Hashmashot(like a Koy) is a time period with features 
of both day and night(ie its not that day turns to night at a split second 
and we just don't know when that is; it's a time period which is inherently 
both)

Kol Tuv,
Joel Rich

I did not look it up inside, but he quotes that the Pri Yitzchak
found it hard to believe that something that chazal declared a sefak could
be so easily resolved.

Ari




Joelirich@aol.com wrote:

> In a message dated 6/7/99 11:40:05 AM Eastern Daylight Time,
> azz@lsr.nei.nih.gov writes:
>
> <<
>
>
>  Last week someone asked if the time of a chicken laying an egg (based on the
> daf
>  last week)
>  can be used to clarify if bein hasmoshos is day or night.

.....

> The Pri Yitzchak
>  rejects these kinds of tests. See Al hadaf for more detail.
>
>  Ari
>   >>
> Guilty as charged.  Does the Pri Yitzchak cite a basis for rejection(eg it's
> only rov etc.)?
> After I asked the question, it occured to me that this doesn't work according
> to the shita that Ben Hashmashot(like a Koy) is a time period with features
> of both day and night(ie its not that day turns to night at a split second
> and we just don't know when that is; it's a time period which is inherently
> both)
>
> Kol Tuv,
> Joel Rich

The following is part one of 2 of an article from our list member R' Michael
Broyde. Hopefully I didn't mess it up too badly when I reformatted his email
to conserve space.

-mi

-- 
Micha Berger (973) 916-0287          MMG"H for  7-Jun-99: Levi, Sh'lach
micha@aishdas.org                                         A"H O"Ch 325:4-10
http://www.aishdas.org                                    Eruvin 92a
For a mitzvah is a lamp, and the Torah its light.         Kuzari III 1-4

Error in the Creation of Jewish Marriages:
Under what Circumstances Can Error in the Creation of a Marriage Void the
Marriage without Requiring a Jewish Divorce
Michael Broyde[1]

Table of Contents:
    Preface
    Introduction
    Marriage as Contract
    Condition (Tenai) and Error (Ta'ut): The Conceptual Difference
    Defects in the Man
    Continuing Marriages Which Started with a Defect
    Conclusion


Preface

The goal of this paper is to demonstrate the nature of the halachic response
to questions of kidushai ta'ut -- errors in the creation of a marriage based
on information not being revealed. Essentially, this paper notes that while
the grounds upon which women could argue that kidushai ta'ut occurred were
extremely narrow in talmudic times, broader in the era of the rishonim,
and has grown yet further in America in the last 50 years, this halachic
truth was predicated on a social reality regarding marriage. Rabbi Moshe
Feinstein recognized this, and understood that kidushai ta'ut was a factually
more plausible argument in America in the last fifty years than in other times
and other places, and he advanced arguments for kidushai ta'ut, and for what
is a significant defect (mum gadol), in a much larger number of cases than
other halachic authorities in other places did. This sociological response
is caused by the recognition that there are more and more cases in America
where -- had the woman been aware of the full reality at the time of the
marriage as it relates to her husband -- she would not have agreed to marry.


However, the recognition that the change in the status of women both
economically and socially leads to an increased possibility of kidushai
ta'ut does not -- and indeed cannot -- mean that all marriages generally are
subject to any form of kiddushai ta'ut principles. Rather, in order for
there to be any sort of a claim of error in the creation of the marriage,
the following four conditions must be met:

(1) The woman must discovers a serious defect present in her husband after
    they are married.
(2) That defect must have been present in the husband at the time of the
    marriage.
(3) The woman must have was unaware of the defect at the time of marriage.
and
(4) The woman must discontinue marital relations with her husband either
    immediately or very soon after the discovery of the defect and her
    awareness that she can leave the marriage because of this.

Claims of kiddushai ta'ut outside of the framework of these four conditions
have absolutely no foundation in halacha. No matter how serious the defect
currently present in the husband or wife might be, absent proof that the defect
was present at the time of the marriage, it is impossible to assert that this
marriage is void based on error. There are no teshuvot found that permit
claims of error in the creation of the marriage unless all four conditions
are met. Newly developed conditions or defects can never be grounds for a
claim of kiddushai ta'ut.

Consider the case of a couple married for twenty years and in year twenty
of the marriage the husband commits adultery with wife's sister. While wife
would undoubtedly say "had I known about this, I would not have married him
twenty years ago" such does not state a claim of error in the creation of the
marriage, as the condition was not present at the time of the marriage. The
same is true if the husband becomes physically abusive of wife after twenty
years of marriage. While there is no doubt that wife would say "had I known
that he would abuse me after twenty years of marriage, I would not have
married him twenty years ago," that demonstrates no error in the creation
of the marriage. This case is no different than a case where one spouse
becomes blind or lame after many years of marriage. No claim of error in
the creation of the marriage can be allowed in that case.

Both of these case are distinguishable from cases where the error was present
at the time of the marriage. Consider the case of man who is engaged to
one woman, and during the engagement is secretly having an affair with the
woman's sister. In that case one could argue that the error (fraud, actually)
was present at the time of the marriage, and the marriage really was void. The
same is true for a man who is blind or lame or impotent prior to his marriage,
and hides that pattern from his fiancee. If the other conditions are present,
both of these cases could be cases of error in the enactment, as the condition
was clearly present at the time of the marriage.

The recent use of the term kiddushai ta'ut by the new "bet din lebayot
ha-Agunot" is unprecedented in halacha in that they are prepared to void every
marriage in which the husband or wife develops a defect in the course of the
marriage, even though none of the conditions specified above, and explained
throughout this paper as needed for error in the creation of a marriage,
are present.

Introduction

The institution of marriage in the halachic tradition involves a multiplicity
of types of relationships between husband and wife, some sacramental, some
sexual, and some financial. Significant failures in any one of these areas
creates marriages that are far from ideal (and sometimes void) in the halachic
tradition. Thus, for example, non sexual marriages are frowned on, spouses have
financial obligations one to another that are immutable, and halacha prohibits
people from marrying each other if they are of certain consanguinities or
conditions, no matter how otherwise rewarding the relationship might be.

On the other hand, halacha does recognize the ability of a couple to deviate
from the marriage norms of society if that is what both parties desire. Thus,
for example, a husband and wife can decline to have a sexual relationships
with each other, if that is what both of them wish; a wife can insist on
her right to be self-supporting and self-enriching; and even some improper
marriages, if entered into, are valid and create a marriage that requires
a divorce when the couple separates.[2]

However, to ever be proper, most deviations from the norm require the consent
of both parties in order to be proper. Thus, error occurs in the creation
of a marriage when one spouse does not inform the other of a highly relevant
issue in any one of these three significant areas. The legal theory explaining
kidushai ta'ut,[3] errors in the creation of a marriage, is fundamentally
predicated on the view that the creation of a marriage has significant aspects
of a commercial transaction in which there has to be a meeting of the minds,
and a proper kinyan,[4] in which each party is aware of what it is he and
she are agreeing to. Absent the full meeting of the minds needed to create
a valid kinyan, this marriage is apparently void (there is a failure in the
creation of the marriage), and no divorce is actually required, as there
is no marriage.[5] In a number of cases the Sages decreed that a get is
required according to rabbinic law, lest people be confused about when a
marriage can end without a get. In other circumstances, no get is required.[6]

Marriage as Contract

All Jewish marriages are created through an established process made up of
four "contract-based" requirements:
1. The intention of the parties must be to voluntarily marry through this
   ceremony or procedure;[7]
2. The parties must be of suitable age, capacity and (opposite) gender to
   marry;[8]
3. A proper method of marriage must be used (money, contract or sexual
   relationship) to create a valid marriage, with two witnesses present;[9]
4. The fundamental components of the relationship between the two parties must
   be agreed on.[10]

Point four is the one that is most dependent on the social norms of the
parties, as it goes to the heart of individuals' understanding of what is
"created" when steps one, two and three are followed. For example, it is
generally recognized that marriage establishes the ability to have a licit
sexual relationship; while there is nothing intrinsically wrong with a marriage
where a sexual relationship is actually not medically possible,[11] according
to halacha, one must inform one's future spouse that this is what they are
entering into, and if one does not, that marriage is possibly void.[12] The
same is perhaps true when a sexual relationship is possible, but children
are not.[13]

Consider the example away from the field of family law to understand
requirement (4). Two individuals meet on an airplane flying from Los Angeles,
California, to Sydney, Australia. One looks at the other's wristwatch with
great interest, and offers to buy it for "one thousand dollars". The other
agrees. The one who is wearing the watch takes off the watch and hands it
to the purchaser who places the watch on his wrist,[14] opens up his wallet,
takes out one thousand dollars Australian, and offers full payment. The seller
responds by stating, "The purchase price was 'one thousand US dollars'". The
purchaser, speaking in his Australian accent, denies that and states that
he would not have purchased the item for US $1,000 and he only offered to
purchase it for AU $1,000. The halacha is clear: the purchase is void, as
there never really was an agreement. Even though they both agreed to what
appears to be a deal, because there was a substantive misunderstanding of
what the deal was actually about on a very very significant facet -- price --
the deal is void. Seller returns AU 1,000 to purchaser and purchaser returns
watch to seller. If they want to make a new deal, they certainly can; however,
the agreement that they "made" on the plane is void, as it is predicated on
ta'ut, error.[15]

The same result would be reached even if purchaser had agreed to pay seller
"one thousand dollars in 90 days", and the confusion about the terms of the
deal did not occur until 90 days from purchaser's apparently taking title
through the act of wearing the watch (kinyan meshicha). This is because the
buyer and seller did not, in fact, have a meeting of the minds on the terms
of the deal. Indeed, the talmudic hypothetical "mocher para, nemtza terefa,
mechko batel"[16] clearly applies even though neither the buyer nor the seller
are, nor even could be, aware of the defect.[17] In the Talmud's case, if it
turns out that there is a significant defect in the condition of the animal
at the time of the sale, the sale is void. However, this sale can only be
voided by showing the following: (1) that a defect was present at the time of
the sale; (2) that the buyer was unaware of the defect; and (3) if the buyer
had been aware of the defect, the buyer would not have completed the sale.[18]

It is important to grasp that the buyer's argument in the talmudic case is
not predicated on fraud[19] at all. It is grounded in the fact that a valid
deal requires an agreement about the principal terms and there was none, as
the buyer thought he was purchasing an edible animal, but the animal was not,
in fact, edible.[20] If both parties had been aware of the true facts, they
certainly could have made a deal (maybe at a different price). They were not,
however, and no deal was made. This rule, obviously, is limited to significant
components in the deal; error in less significant components does not lead
to the deal being void, but merely a "reduction in purchase price."[21]

This same basic principle applies to the marriage arrangement as well.[22]
Indeed, the Shulchan Aruch in Even Haezer 39 lists many cases that focus
on the problems raised by incomplete revelation by the woman concerning the
physical state of her body, the presence of constricting vows, and a host of
other cases. The basic rule seems clear: if a man should have been aware of the
defect[23] or actually was aware of the defect,[24] then he cannot claim that
the marriage is void based on its presence. So too, if the "defect" is one that
is normally found in many people--even if this man claims he now objects--he
is not to be believed,[25] as it is assumed that he was aware of this defect,
or the possibility of this defect being present, and accepted this defect
or risk of it.[26] However, when there is a hidden defect in the woman that
the man was not aware of and could not have been aware of, and the defect is
serious, the marriage is void or voidable.[27] (In the reality of practical
halacha, the problem of what is a serious defect such that the marriage is
void is expressed in the technical literature as a discussion of what are
the attributes of marriage that are minimally acceptable given the modern
state of marriage, and the social and economic reality of the times. This
varies from time to time, place to place, and as Rabbi Moshe Feinstein notes,
from level of religious observance to level of religious observance.[28]

Condition (Tenai) and Error (Ta'ut): The Conceptual Difference

It is important to grasp the difference between a condition (tenai) and an
error (ta'ut) according to halacha as there is a very significant conceptual
difference between a condition in a marriage and an error in enactment of
the marriage. Error in enactment is not simply the application of implicit
conditions. A condition in a marriage or divorce (and maybe all areas)
follows a particular technical formulation and can cover contingencies that
cannot ever be predicted by the parties and certainly need not be present.[29]
Thus, a man may marry a woman and he or she can state under the chupa that
they are marrying each other only on the condition that neither ever get
cancer or drink wine (or both). When one makes such a condition in a marriage,
and that condition is breached, the marriage is void, assuming that both of
them never forgave the marital condition.[30]

Thus, one can say that a formal tenai is a condition and limitation on
the status of the marriage, and is thus subject to significant procedural
restrictions (both in exact formula and in assumed waivability), perhaps for
that exact reason. However, the tenai procedure -- if correctly followed --
works for almost every imaginably contingency, including those currently
not present. However, normative halacha assumes that people forgive tenaim
after the couple commence a sexual relationship, and thus the marriage is
valid, even if the subsequent conditions are breached, as happily married
couples waive otherwise permanent conditions shortly after marriage.[31]
However, when a tenai is made at the time of marriage, and kept in effect
during the sexual relationship and then the tenai is breached, the marriage
ends without any divorce, as if there never was a marriage. Nevertheless,
the marriage is fully valid until such time as the condition is breached.

While it is true that our custom and practice is not to use any conditions in a
marriage, as there is a distinct halachic possibility that any such condition
is void if the parties live together sexually without explicitly repeating
the condition, such is not the categorical halacha, as Rama clearly rules
that such conditions can and do work, and he proposes one to cover the case
of a brother unwilling or unable to do yibum.[32] Certainly, all agree that a
tenai can be kept in effect if, for example, the couple repeated the condition
to a bet din each time before they engage in a sexual relationship.[33]

In sum, in a tenai case, when a condition is used and the procedure for a
tenai is followed, the marriage is valid, but conditional. If the proper
procedure is followed, the condition can survive and it can govern many
un-foreseeable activities. However, in the real world of Jewish marriages,
formal conditions are never used, as the procedural requirements to keep
them valid conditions once a sexual relationship commences are very onerous
in all but the absolutely rarest of circumstances.

Such is not the case in ta'ut, which functions along a completely different
conceptual axis. In an error case, since the marriage is only valid based
on mutual agreement, and the mutual agreement was predicated on a mistake
of fact so great that were it known, one party would not have consented
to marry (or purchase the watch, in the case discussed above on page 5),
the marriage (or sale) is void. It always was void and never was valid. The
blessings recited under the chupa when the couple was married were in vain
and no marriage ever took hold. While it is true that a subsequent marriage
can take place between the parties[34], that is only possible if the parties
are actually aware of the true facts and still desire to be married in light
of them, just as the parties in the watch case could agree -- once aware
of the misunderstanding to sell the watch for $1,000 (Australian). So too,
in a case of error the parties could agree not to continue the relationship,
and seek to contract with others. Obviously, this type of error can only be
present and apply to facts present at the time of marriage.[35]

Defects in the Man

There is no discussion in the Shulchan Aruch itself concerning defects in the
man, even as there is a lengthy and detailed discussion of defects in the woman
found throughout Even Haezer 39.[36] However, such a discussion does appear
quite clearly in the Beit Shmuel,[37] and can be implied from the talmudic
discussion, found in Bava Kama 110b-111a, concerning the woman who marries a
man whose brother is diseased.[38] In that talmudic case, the gemera clearly
stated that Jewish law does not assume that a woman would decline to marry a
man who is right for her merely because she might fall to her future husband's
brother as a yevamah, and he might not wish to do chalitza so she might have
to marry him. Indeed, the rishonim split about what exactly is the proper
limit to this presumption: Does it apply when the brother is an apostate? A
heretic? A eunuch? All of these cases present troubling hypotheticals and
the rishonim disagree over what exactly is the correct line to draw.[39]
However, it is important to understand the nature of the disagreement --
at what point is the defect in the brother great enough that one can state
with near certainty that with this defect in the brother, this woman would
not have married this man under any circumstances.[40] Indeed, one can not
really find any systemic statement of halacha (in the sense of statement
of legal principle) which precludes the application of the principle of
"defect" to a case of defect in the man.[41] The exactly opposite argument
can be found in the writings of both Rabbi Moshe Feinstein and Rabbi Chaim
Ozer Grodzinski, who are inclined to rule that since a man can divorce a
woman with less difficulty than the reverse, a man is more inclined to marry
a woman who might be defective than the reverse, as he is prepared to gamble
on a transaction that might not work, and which he can exit from of his own
free will; she does not, and thus is less inclined to take such a risk.[42]

The obvious question needs to be resolved. How does one understand the
rule of "It is better for a woman to be with another [unhappily] than to be
alone"[43] and the related talmudic phrase "We can attest that she is better
with anyone"[44] found in the Talmud.[45] The question is how can one even
consider the issue of kidushai ta'ut when the talmudic principle clearly
assumes that any given women is better off married than single? This issue
requires a very direct response: This talmudic principle has not globally
changed for all women (throughout the world), but rather creates a rebuttable
presumption that women are better off married, even in a less than ideal
relationships, than single.[46] This principle, by this approach can be
deemed inapplicable in any given case when it can be shown to be untrue
given the facts of any specific man and woman, or indeed any given category
of specific men and women.[47]

Indeed, this might be the approach halacha takes to many areas where the
gemara creates presumptions which are not applicable in every single case, but
which cannot be shown to be generally inapplicable. Consider, for example,
child custody disputes between a man and woman who are divorced. Even though
the talmud provides rules of custody[48] which are quoted in the Shulchan
Aruch,[49] the rishonim and achronim, almost with one voice, insist that
these rules are mere presumptions, which a bet din need not follow in any
given case when it recognizes these presumptions are not applicable.[50]

The same can is true in the area of kidushai ta'ut. One can show many
specific cases where poskim determined that the presumption that a woman
is better off with any husband is rejected, sometimes with the attestation,
taken from the Terumat Hadeshen[51] concerning a husband who is an apostate,
that this husband is "less than anything!" Indeed, to adopt the posture that
these two principles are absolute, or irrebuttable, categorical presumptions
is extremely difficult to do, as the Talmud itself recognizes that there
are circumstances where it is better for a woman to be divorced than to be
married. Thus for example, Yevamot 118b permits one to accept a get on behalf
of a woman who is categorically better off being divorced from her husband
under the principle of zachen leadam shelo befanav[52] in a case of a fight
between a husband and wife, when the husband wants to divorce her, but she
is not present to receive the get. This can only be justified by stating
the obvious: the principle of "it is better for a woman to be with another
[unhappily] than to be alone"[53] is a presumption that -- when clearly not
applicable -- is halachicly not applicable too.[54]

To give the most recent example of this dual approach of insisting that the
general reality has not changed, but is inapplicable in any specific case,
Rabbi Moshe Feinstein,[55] when discussing the case of a woman who married
a bisexual man and who hid that fact from her during their courtship,
states that:
     even nowadays one should not accept as proper this argument [that women
     generally are more content not to be married now than in talmud time]
     and that, generally, reality has changed.
However, he continues:
     In this case, where the defect is so great, the marriage is a void
     transaction based on error even for a woman, as I explain in Iggrot
     Moshe EH 1:79 and 80,[56] as this husband is involved in homosexuality
     which is a particularly great abomination, and greatly repugnant, an
     embarrassment to the whole family, and even more so to this woman that
     her husband chooses this disgusting form of sexual relations more than
     sexual relations with her. In such a case, the marriage was certainly
     based on error. It is certain to us that no woman would desire to marry
     a man as disgusting, repugnant and embarrassing as this.[57]

Rabbi Feinstein applied similar analysis to cases where the husband was a
sometime lunatic, or impotent, or suffered heart illness, or was an apostate
and other cases or hid that fact from future spouses.[58]

Indeed, one can find a considerable number of achronim who address particular
cases of possible kidushai ta'ut in this methodology and conclude that the
rules of "it is better for a woman to be with another [unhappily] than to be
alone"[59] and the related talmudic phrase "we can attest that she is better
with anyone"[60] can be determined to be inapplicable in specific cases based
on the reality of any given time or place. This note cites no less than 15
such cases in note 60, throughout this article another nine teshuvot also
adopt that view and twice that number could have been cited by this author.[61]

To the extent that there is a significant dispute about how to apply the
principle of kidushai ta'ut, it derives from a fundamental disagreement
about the sociological facts and reality; when does one reach the critical
threshold of knowing beyond a doubt[62] certain facts about the intent of the
parties in a marriage. As Chazon Ish states, "In the case of defects by the
man when there is an unconditional marriage it is clear that the marriage is
valid, as there is no categorical presumption[63] that she would not want
[to marry him]."[64] When there is a categorical presumption that had she
been aware of his defects she would not have married him, even Chazon Ish
would admit that the marriage is void.[65] Reasonable people or rabbis living
in different communities, or understanding people's mind-set differently,
might disagree on when that threshold is reached, and what is such a defect
in the mind of most members of their community. That is a sociological and
halachic problem, with different results in different times and places. The
rules remains the same, even as the result might change. That is a common
motif in many halachic areas and not unusual or uncommon.

Continuing Marriages Which Started with a Defect

One of the frequent issues in the area of kidushai ta'ut relates to what is
the response of the woman or man upon discovery of the error in the creation of
the marriage. Does he or she leave the marriage immediately? Rabbi Feinstein's
final comments on the bisexual husband quoted above are worthy of further
discussion. He states:
     If as soon as she found out that he was bisexual she left him, it is
     logical that if one cannot convince him to give a get, one should permit
     her to remarry because of the rule of kidushai ta'ut.....
Rabbi Feinstein repeats this again:
     But all this[66] is limited to when she leaves him immediately, but if
     she lives with him (sexually), it is difficult to rule the marriage void.
This factor is significant to understand.

The classical case in the Shulchan Aruch outlines the problem well. Shulchan
Aruch Even Haezer 31:9 states:
     ... if a man marries a woman with less than a perutah[67] but they live
     together unconditionally in front of witnesses,[68] they need a divorce
     [if they wish to separate], since they certainly lived together for
     the sake of marriage [and thus are married]. Rama: The same is the
     rule if a minor proposes marriage to a woman who accepts. Upon his
     reaching adulthood living with her they need a divorce [if they wish
     to separate] as they certainly lived together for the sake of marriage.
     Specifically in cases like this -- since everyone knows that the marriage
     of a minor man or with less then the minimum consideration is void --
     are we certain that they lived together for the sake of marriage. In cases
     where one can limit this, the couple needs another marriage ceremony.

The conceptual rule is that in order for a void marriage ceremony to become
a valid marriage subsequently, the husband and wife have to both be aware
of the fact that their initial marriage was void and or invalid, and then
they have to desire to continue to stay (or perhaps, become) married. If
either condition is not met[69], then they are not validly married, as the
first marriage ceremony was void, and there was no intent to create second
marriage ceremony.[70] However, Jewish law clearly presumes that people who
are involved in a relationship that was designed to be marital in nature
intend to continue that relationship if it turn out to be defective as
a marital one, and they do so by continuing the sexual relationship;[71]
once that happens, the couple is married by the act of publicly presenting
themselves as married.[72]

Consider the case discussed by Bet Shmuel and Chelkat Mechokek: A man and
woman who were married for quite a while, and had a number of children, and
only much later realized that the initial marriage ceremony was not valid
as the consideration for the marriage was less than a perutah, the minimum
permitted. If, at that point, they either remarry in a ceremony or continue to
live together in a marital ceremony, they are validly married at that time.[73]

This rule is explicitly described in the context of defects in the woman by
the Aruch Hashulchan, who states:
     In the case of defects in the woman which he explicitly stated before
     the marriage that he does not desire such defects ... if he lives with
     her after their sexual relationship for an extended period of time, as
     a man and woman who are married do, they are certainly married ... The
     marriage was completed with certainty, when he lived with her, as that
     made it clear that he really does not care about these defects.[74]
This approach is logical. Every pot really does have a lid, and halacha
recognizes the ability of a person -- even with glaring defects -- to marry
a person who understands the virtues and vices of such a marriage to such a
person. Thus, there is little doubt that a woman who cannot have children (an
ilonit) can validly marry, so long as she discloses that fact, and that a man
who is impotent can enter into a valid marriage, so long as he discloses that
fact.[75] The corollary of this is that when this woman or man becomes aware
of a significant defect that was hidden which could void the marriage, did she
or he take steps to leave the relationship, or did he or she decide that they
could live with the status quo, aware of the fact that according to Jewish law
they could leave the marriage immediately, as there was no valid marriage. If
he or she did the latter, even if the marriage was defective at its enactment,
a very strong case can be made that this conduct (continuing the sexual[76]
relationship with one's spouse with the intent to be married) creates a new --
and valid -- marriage.[77] In the case of a relatively non-significant defect,
a case could be made that this is a ratification of the previous marriage,
and in the case of a significant defect, in creates a new marriage.[78]

It is possible to create a construct in which the woman or man immediately
decides to leave, but stays for a short period of time while planning to
leave. In order to explain this halachically, one would have to maintain that
the man and woman never intended to have that ongoing sexual relationship,
after discovery of the defect, create a marriage. Even the words of the
Aruch Hashulchan admit the possibility of that construct, as he states "if
he lives with her after their sexual relationship for an extended period of
time, as a man and woman who are married do, they are certainly married.[79]"
The rationale, however, is halachically complicated, as halacha has a very
strong presumption that people who have a sexual relationship and represent
themselves as married actually are, as any known deficiencies in the marriage
ceremony are cured by continuing the marital relationship.[80] However, if the
woman is unaware that al pe din her marriage is void and it needs recreation
through a sexual act, she can never have the proper requisite halachic
intent to marry based on any given sexual act, as the halacha is now well
established that a couple does not become married merely by living together
when they are not aware that their original marriage ceremony was void.[81]


Conclusion

The problems of kidushai ta'ut has been brought to the forefront by recent
developments, and it is important to grasp how socially and contextually
defined this issue really is. What are the fundamental aspects of a marriage
that allow one to assert that deception about them voids the marriage ab
inititio? Halacha does not have absolute answers to that question. Halacha
recognizes a principle: Defects or conditions that were present at the time of
the marriage, but were not revealed, which if the other party to the marriage,
as well as most people in that society, had known about would have caused
that other party to the marriage to refuse to enter into the marriage, can
make the marriage void ab initio. The application of this principle varies
from place to place and time to time, and is affected by the differing social
status given to women, including such issues as how easily can a woman earn
a living without a husband, and (if she is not observant of Jewish law) how
easily can she engage in illicit sexual relations outside of marriage[82]
as well as other factors, which differ from society to society.

[Footnotes in Part 2]

********************


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