Avodah Mailing List

Volume 05 : Number 099

Monday, August 7 2000

• Maamer on Hasgach Pratis
• Shamai
• Re: Kiddushin al tnai
• RE: tnai benissuin
• Re: Kiddushin al tnai
• Re: Kiddushin al tnai
• Re: Hefker and Kiddushin
• Re: Hasgocho protis vs. bechira chofshis
• RE: tnai benissuin
• tnai benssuin
• Re: Hefker and Kiddushin
• Rav Ovadia statement

Eli Turkel <turkel@math.tau.ac.il> asks: "Does anyone know of any source
that surveys the various opinions in at least some detail?"

    The late Lubavitcher Rebbe, zt'l, offered a full comparison/contrast
analysis of Rambam's and others' shitta on Hashgacha Pratis vs. The Baal
Shem Tov's at the end of a recently released Kehot sefer entitled, "Nezer
Baal Shem Tov". The sefer itself is the Rebbe's own "take" on Toras HaBaal
Shem Tov, and is quite good.

> Why is this (and tomorrow's) a quote of Shammai, the Av Beis Din and
> representative of middas hadin?

Good point. Rav Chaim Pinchos Scheinberg made this very point to me. I
pointed out to him that Rav Yochanan Ben Zakai was makdim Shalom Lichal Adam
even a Nochri Bishuk. And Yet, it was this very Rav Yochanan Ben Zakai who
"Maolam Lo Sach Sicha Bitaila." We see that greeting even a non-Jew is not
Sicha Bitaila. Rav Scheinberg then responded that we find a similar thing
with Shamai who was a "Kapdan" when it came to Halacha, but pleasant in his
interpersonal relationships.

Aaron Rubinson

Just to let the chevrah know, I had no idea that kiddushin al tenai had already 
been suggested and debated.  It was not my intention to open up an old debate 
and, since the suggestion is not a davar muskam, it is untenable.

[Moderator's note: but we've had many new faces since. We can't keep mum on
every topic already discussed once, because these new perspectives would never
get voiced. -mi]

RY Zirkind wrote:
> It is quite evident from looking into the many Sifrei Shut that every major 
> Posek was Oseik in Heter Agunois, the fact that no broad solution was made 
> speaks volumes.
     
See Chullin 6b-7a.  Makom hinichu li avosai lehisgader bo.

Gil Student

My post raised some immediate strong responses. Let me clarify.

With regard to tnai benissuin, there is clearly a major group of poskim who
hold that it is practically impossible, for one because it is nullified during
every biah unless there is a public declaration of the tnai just beforehand.

Furthermore, when a proposal for tnai benissuin was proposed in the 1930s,
major poskim (summarized in the book ein tnai benissuin) wrote against it.

However, in spite of this, R Weinberg (himself a major posek, and who was
active in the 1930s when the earlier tnai proposal was made) disagrees. In a
letter to R Jung (in Kitve haseride Esh, b"n I will get the exact quotation
tonight) he discusses tnai as a possible solution to the aguna problem,
and then, gives at least qualified approval to R Berkovits's proposal,
which really seems an elaboration of R Weinberg's own early proposal to R Jung.

I am sure that the Seride Esh was as aware of the positions mentioned in ein
tnai benissuin as we are. After all, the earlier proposal was in Paris in
the 1930s, and he was involved as a posek for much of French Jewry. However,
in spite of all this, he still views tnai as a possible solution. Furthermore,
his letter of haskama to R Berkovits assumes the possibility that this proposal
could find acceptance within the haredi community (something that is clear
did not happen, but that is another issue). Therefore, clearly, he did not
view the literature on tnai as one sided as the posters on avoda would suggest.

Furthermore, I have seen the letter from R Feinstein. I do not know whether
would have ever approved it l'ma'ase. However, again, clearly he did not find
the previous literature on tnai to be as one sided as suggested, or he would
not have said that there was nothing intrinsically wrong with the proposal
( a statement that few on avoda would be willing to endorse), even if he
did not believe it should be adopted.

This is not to say that tnai should be adopted, and there are clearly positions
(that RYGB has ably summarized) that if one follows, makes tnai a practical
impossibility. However, both RMF and the Seride Esh view tnai as being
at least theoretically permissible, and therefore reject those positions
that would make tnai impossible. The fundamental limitation according to
both RMF and the Seride Esh's letter is really the assessment of whether
there is a need for such a fundamental change in the nature of kiddushin.
RMF felt that there was no need at the time (mid 1960s), and the Seride
Esh thought that, at least preferably, it should be a communal decision.
Clearly, the assessment of need is something that is up to the posek of the
time, and can be reassessed.

Meir Shinnar

In a message dated 8/1/00 5:00:28 PM Eastern Daylight Time, micha@aishdas.org 
writes:
>: It is quite evident from looking into the many Sifrei Shut that every major 
>: Posek was Oseik in Heter Agunois, the fact that no broad solution was made  
>: speaks volumes.

> I'm not as sure. Compare the time interval between the birth of
> interest-based banking and the heter iska -- literally centuries.

The problem comes to light when the banker is a Jew, that may not have
been very common untill later. As an aside the stock market is not a new
phenominom, the many Shailos of Ribis in certain trensactions is not much
known (could also be that most brokers dealers etc. where not Jewish) as I
asked a long time ago perhaps some discussion can be initiated on this topic
(hint to RYGB :-)), likewise the issue of selling stocks in the Mechiras
Chomeitz contract is relativly new.

> The current crises with mesarvei get involves a number of issues that really
> only came up since WWII: the fall of the autonomous Jewish community (even
> in Israel, a person can hop from kehillah to kehillah in ways that weren't
> an option) and the frequency of civil divorce in our generation.

OTOH we have no way of knowing the true dimensions of the problem in earlier 
generations, which didn't have such international media coverage.

> Aside from that, I'm bothered by the general idea. What if Sarah Shneirur
> would have taken the same attitude WRT permitting education for girls?

There is no question that one has to deal with problems as they come up, as 
the cases in Shas of "Eis Laasois Lashem", or Takonas Hashovim, however 
Sheloi Linol Deles BIfnei Loveh still needed a Possuk to make Pruzbul.

Kol Tuv
Yitzchok Zirkind

In a message dated 8/2/00 6:00:05 PM Eastern Daylight Time, 
Gil.Student@citicorp.com writes:
> See Chullin 6b-7a.  Makom hinichu li avosai lehisgader bo.

See Tos. there that one needs to be able to justify, why up untill now no
one thought of it, that is also why we find in many places the aregument
of "Lo Ishtamitsei Lshum Posek" as it is not easy to say, Mokom Henechu.
especially in this issue which many Rabbonim had to deal with bad times
(Al Derech Kol Hayotzei Lmilchemes Beis Dovid).

Kol Tuv
Yitzchok Zirkind

One further thing on this topic. As the daf yomi has been wending its way
through nedarim, I noticed an interesting Ran on daf 6b "d'amar",

The gemora is discussing a case where a man gives a woman two prutos and
says to her "harei at m'kudeshes li" and then says to her friend, either
"v'at" or "v'at nami" (v'at nami being the case that is clearly good, ie
the second one is also mekudeshes, with v'at the safek). And the Ran there
after explaining the case states "v'chi *amra* d'nicha la havei m'kudeshes"
(my emphasis) and explains further that is because her friend accepted the
pruta as her shaliach.

Does not this Ran appear to state explicitly that, at least in this
circumstance, the Ran regards a verbal statement (amra) as necessary and
effective to complete the kiddushin?

Regards
Chana

On Mon, Jul 31, 2000 at 08:49:48AM -0400, C1A1Brown@aol.com wrote:
: Whether hashgacha overrides someone else's intent to harm is a machlokes
: Rishonim bet. the Chovos HeLevavos and Tos. in Kesubos (30a 'hakol b'yidei
: shamayim chutz m'tzinim u'pachim') discussed by R' Elchanan in Koveitz
: He'aros.

The Ohr haChaim comments on the brothers' decision to throw Yosef into the pit
rather than kill him outright. As the pit was dry and infested with poisonous
snakes and scorpions, how is it any better than their original plan? The
OhC explains that the were testing to see if Yosef deserved to be saved,
or was really morid bimalchus Yehudah. Had they killed him outright, they
wouldn't know if he was guilty, or if he died as a victim of their bechirah.

Actually, though, throwing him into the pit was as much their choice as
killing him would have been. The difference is only in how obvious of a neis
it would require to save him. I therefore think this too could be understood
using the Rambam's yediah -> hishtadlus or REED's bitachon obviates the need
for hishtadlus models.

-mi

-- 
Micha Berger                 When you come to a place of darkness,
micha@aishdas.org            you do not chase out the darkness with a broom.
http://www.aishdas.org       You light a candle.
(973) 916-0287                  - R' Yekusiel Halbserstam of Klausenberg zt"l

Meir Shinnar:
>               However, both RMF and the Seride Esh view tnai as being
>at least theoretically permissible, and therefore reject those positions
>that would make tnai impossible. The fundamental limitation according to
>both RMF and the Seride Esh's letter is really the assessment of whether
>there is a need for such a fundamental change in the nature of kiddushin.
>RMF felt that there was no need at the time (mid 1960s), and the Seride
>Esh thought that, at least preferably, it should be a communal decision.

I would disagree. Since RMF and the SE are not known to have explored the 
issue in depth, only noting that that there may be something to explore, 
our conclusion about their position, if anything, should be to the 
contrary: Had they actually explored the issue in depth, they would likely 
have come to the conclusion reached by the consensus of Gedolei Yisroel.

KT,
YGB

Here is a summary of the position of the Seride Esh on tnai benissuin.

In a letter to R Jung from 1957 (in Kitve hagaon rav yehiel yaakov weinberg,
vol 1, pp. 48-49) (He is commenting on two articles he has just received -
0ne on artificial iniemination and the other on tnai)

With regard to tnai in kiddushin and nissuin is a very serious (hamura)
question. On pure halachic grounds, it is certain that one can permit a tnai
in special conditions and limited cases, such as apostasy or mental illness
or yibum and halitza. And already the great aharonim, the rama (even haezer
157:4), bach (e h 157) noda biyehuda (e h mahadura kama siman 56) hatam sofer
(eh 112) and akiva eger (tshuvot 93) have allowed to have a tnai at the time
of biah with an oath that he will not be mevatel the tnai.

However, the rabbis of France in their time (I think he is referring to the
1930s attempt- MS) wanted to institute a tnai in all kiddushin about all
circumstances that can occur. Against this came out all the gdole hador,
and their rational was essentially (beikaro) from moral reasons not to make
marriage in Israel a form of partnership contract that can be annulled any
time that one of the partners does not want such a partnership, and therefore
it is necessary to limit the takana to specific cases as above.

These articles of Yerushalayim summarize what was said, but not the discussion,
only the conclusions.

he then goes on to say that is needed a deeper discussion of the issues,
such as in Rav Henkin's propoosal and by Rav Uziel. However, he says that
he lacks books in Montreux for the proper research and asks for the sefer
eyn tnai benissuin.

In his introduction to rav eliezer berkovits's book tnai benissuin uveget

It is known that in the generation before us was publicized a book by
the name eyn tnai benissuin, and in it came out the gedole geone hador to
completely forbid the imposition of a tnai in kiddushin and nissuin. However,
the author emphasizes that he was not coming to dispute the gdolim of the
previous generation, but that the situation has become much worse and that
new serious problems have arisen, problems that the gdolim of the previous
generation did not have to deal with (Lo nistabchu bahem). Today things have
reached a state that many women are divorced only in secular courts without
a get and then remarry, therefore increasing mamzerim beyisrael. If there
would have been isolated instances of this as in the previous generation,
it would have been necessary to deal seriously to find a soluton for the
generation. even more so that now this has become a mass phenomenon, r"l,
and many families that were assimilated intermarry frequently with those
that have kept their kdusha. .... Therefore, I have said that one can
not pass in silence over the appearance of such a hafratza and there is
urgent need to investigate the possibility of a
solution.
{parenthetically, here R Weinberg answers the question that R Zirkind raised
- so many gdolim deal in agunot, however, none have proposed this. he says
that the nature of the aguna issue has dramatically changed, requiring new
solutions. Even if every individual case occuring today has been dealt with,
previous poskim had not had to deal with it on such a massive scale, which
requires new solutions. MS]
Furthermore, the issur of the gdolim of the previous generation was intendendn
primarily against the tnai of the French rabbis, and this was their tnai:
If the couple separates in secular courts, the kiddushin will be nullified.
Against this argued all the geoneim of all the all the lands, that this will
cause to nullify the sanctity of ishut in Yisrael and it will be transformed
to a partnership contract...

at the end of the letter:

Therefore, one has to decide what is preferable and to make a takana: Whether
to keep on the sanctity and permanence of married life as (veerastich li
le'olam) and to be sure that also in the middle of hoge shlome emune yisrael
who are trained in fear, kedusha vetahara not to cause chas veshalom a from
of upheaval and chlling of the the sanctity of marriage, or to consider the
severity of the depraved situation that has spread in our generation, a great
and important reason that one should not all all scoff at its importance: The
spreading and wide prevalence of cases of couples who remarry not accroding
to din or torah with another, after they are separated only in secular
courts because they could not divorce inbet din because of known reasons
(mental illness of the husband or unreasonable refusal of one of the sides
not according to din to agree to a get) and the new thing in our generation is
the widespread nature of this illness, that has become a the trouble of many
and the destruction of the generation. And there are reasons on both sides.

Therefore, to summarize:
1) Meikar hadin, according to gdole haposkim, some form of tnai is feasible.
2) The issurim mentioned in the book ein tnai benissuin were meant more of a
response to the contemporary situation, rather than reflecting an intrinsic
issur on tnai.
3) The current situation is fundamentally different in quantity and quality
from the problems that the poskim of previous generations had to deal with.
4) Some form of tnai may therefore be acceptable as a solution. 

Meir Shinnar

Chana:
>Does not this Ran appear to state explicitly that, at least in this
>circumstance, the Ran regards a verbal statement (amra) as necessary and
>effective to complete the kiddushin?

I believe that I clarified this here at some point.

I agree that a woman may speak under the Chuppa (except according to the 
Ba'al ha'Tanya, al pi kabbala) - she can say something to the Chosson like 
"Whatever you say, I agree" - which is exactly the case of the Ran you cite.

But, in the new innovation, the nature of the amirah and its context, 
assuming it is not a mere charade, run contrary to the proper da'as and 
manner of kiddushin that I contend is required by the Ran.

KT,
YGB

What is one supposed to make of this????

JERUSALEM (AP) -- An eminent rabbi who heads Israel's third biggest political
party sparked an uproar in Israel on Sunday for saying that 6 million Jews
perished in the Holocaust because they were reincarnations of sinners.

Rabbi Ovadia Yosef, leader of the Shas party, also declared that Prime
Minister Ehud Barak has "no sense" because he is trying to make peace with
the Palestinians, whom he called "snakes."

Yosef was speaking in his weekly Saturday night sermon that is broadcast
over the party's radio stations and is beamed overseas by satellite.

He said the 6 million Holocaust victims "were reincarnations of the souls
of sinners, people who transgressed and did all sorts of things that should
not be done. They had been reincarnated in order to atone."

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


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