Avodah Mailing List

Volume 31: Number 176

Wed, 16 Oct 2013

• 1. Kofin Oso (Micha Berger)
• 2. Re: Bechirat Israel (was: Lech Lecha) (Arie Folger)
• 3. YOU CAN'T HAVE IT BOTH WAYS (cantorwolb...@cox.net)
• 4. Re: YOU CAN'T HAVE IT BOTH WAYS (Lisa Liel)
• 5. Re: YOU CAN'T HAVE IT BOTH WAYS (Micha Berger)
• 6. Re: YOU CAN'T HAVE IT BOTH WAYS (Zev Sero)
• 7. lifnei iver in medicine (saul newman)
• 8. Introduction to RSRH's Commentary on the Torah by Rabbi Dr. Joseph Breuer (Prof. Levine)

(Subject line chosen to match that of earlier iterations on the
topic. http://www.aishdas.org/avodah/getindex.cgi?section=K#KOFIN%20OSO )

Someone wrote on Areivim:
: To my knowledge a get given as the result of physical coercion is  invalid. 

R' Yair Hoffman wrote an article in 5TJT on when kefiyah is valid,
and why the case in the news doesn't qualify. See
http://5tjt.com/the-cattle-prod-get-a-halachic-analysis

Selections:

> THE MISHNA

> The Mishna in Ksuvos (77a) lists a number of illnesses and professions
> in which a qualified Beis Din may force the husband to give a Get. The
> Gemorah both in Ksuvos and Yevamos provides further cases, and the final
> halacha regarding forced cases has been quantified in Shulchan Aruch
> Even HaEzer chapter 154.

> THE DEBATE

> There is a fundamental debate among the Rishonim, however, as to whether
> the cases discussed in the Talmud are the only such cases where a get may
> be forced upon the husband or whether they are examples of cases that
> may include other cases too. We will see that the final disposition of
> a forced get in most contemporary cases is dependent upon this debate
> among the Rishonim. The first view is that of the Rambam (Ishus 14:8),
> who rules that there are other cases where a get may be forced.

> The next view is that of the Rosh and the Rashba. The Rosh, Rabbi Asher
> Ben Yechiel, rules in his responsa (43:3) that one may only force a get
> in the cases specifically mentioned in the Talmud. The Shulchan Aruch
> cites the Rosh in 154:5. The Rashba agrees with the Rosh in this respect
> as well.

...

> RAMBAM'S APPROACH

> The first, and most famous one, is that of the Rambam found in the laws
> of Geirushin (2:20). He explains that since the husband essentially
> wishes to be part of Israel he does not truly wish to go against the
> Torah. He wishes to fulfill the Mitzvos and distance himself from sin. It
> is just that he is subjugated to his evil inclination. However, once he
> receives corporeal punishment, his evil inclination is weakened and his
> true desire comes forth.

> The Rambam's view as mentioned earlier, is certainly the most well-known
> explanation to how it works. It is interesting to note that most people
> who have studied in Yeshiva are only familiar with the Rambam's resolution
> to the question. Often, they are entirely unfamiliar with the other
> explanations and do not realize that the Shulchan Aruch's position is
> more than likely like the position of the other Rishonim!

> THE RASHBAM'S APPROACH

> The Rashbam in Bava Basra (48a "Hasam") explains that it is tantamount
> to the case of a forced sale when the seller receives consideration. He
> writes that just as the seller does not end up losing anything so too this
> husband doesn't lose anything since his wife hates him anyway and without
> a get as well she will not remain with him -- he loses nothing. The get
> is only a means that permits her to others and has no bearing upon him.

> THE RADBAZ'S APPROACH

> Another opinion is that which we find best explained in the Radbaz
> (responsa 1228) that the way a forced get works is dependent upon the
> power placed in the sages of Israel -- that the Rabbis were empowered
> by the original formula of the marriage ceremony, "Behold you are
> betrothed to me in accordance with the law of Moses and Israel." The law
> of Moses is Torah law, while the law of Israel refers to the rulings
> of the sages of Israel. In the cases of a forced get in the Mishna,
> the Radbaz explains, the Rabbis essentially revoked the marriage from
> the onset. In the language of Rabbinic Hebrew this is called, "Afkinhu
> Rabanan l'kidushin minei -- the Rabbis revoked the marriage from him."

> Most Achronim understand that the Rosh's position explained earlier is
> virtually the same as that of the Radbaz.

> TOSFOS'S APPROACH

> Another opinion is that of the Tosfos in Bava Basra (48a "Eelayma"). This
> position is somewhat unclear but it states that since the giving of
> the get under such circumstances is a Mitzvah it is likened to a sale,
> which is effective when forced. Some Achronim (see for example Rav Shlomo
> Streisan) understand the Tosfos to mean that the Mitzvah has a financial
> value to it and thus it is like the sale.

> THE UPSHOT

> According to the Rosh and Radbaz, which the Shulchan Aruch seems to rule
> with, the case of Ma-oos alai would not be included in the cases where
> force may be used and the principle of Afkinhu Rabbanan l'kiddushin minei
> would not apply. Thus the marriage would still be intact and the cattle
> prod get would be ineffective. According to the Rambam the cattle prod
> get would work, but only in the circumstances that it was truly the
> correct Torah thing to do.

> THE POSKIM WHO QUALIFY THE SHULCHAN ARUCH RULING

> There are also Poskim who draw a distinction between the cases in the
> Gemorah and Shulchan Aruch and cases where the wife is no longer under
> the same roof as the husband. These Poskim write that the entire issue
> of limitation of forcing was only when they were under the same roof,
> but otherwise forcing when there is a concern that the wife would be an
> Agunah, left alone, is always permitted. The responsa of the Chacham Tzvi
> Siman 1 seems to indicate that he holds of this distinction. He writes
> that one may force a get either because of igun or because of the issues
> that Chazal enumerated. This is also the position of the Z'kain Aharon
> (Rabbi haLevy) in his responsa (#149). According to these Poskim the
> cattle prod get would be kosher.

> It is pretty clear, however, from the writings of Rav Elyashiv and Rav
> Shlomo Zalman Auerbach that they do not seem to subscribe to this view.

> Indeed, a friend of this author was once present when Rabbi Mendel
> Epstein's name [same rabbi as in the news -- mb] came up in front of
> Rav Elyashiv zt"l, and Rav Elyashiv zt"l said, "Oh him? His Gittin are
> invalid." This was said in reference to his forced Gittin. Whether Rav
> Elyashiv's ruling applies to each person's individual case is another
> story and a competent Posaim should be consulted regarding each case.

This last paragraph is a friend-of-a-friend report. But there is
definitely a "qol" to that effect; I've heard it from others.

RHS *does* hold like the Chakham Zvi, though. (In a YUTorah.org shiur
since taken down, "Options for Agunot", min 10-14. It was referenced
in a blog discussion I participated in.)

Not included there is the topic of harchaqas R' Tam. Rabbeinu Tam holds
that a certain level of social pressure used to obtain a gett would not
invalidate it, even in cases where kefiyah would. The Rama EhE 154:21 says
this includes prohibiting doing favors for him, business with him -- even
prohibiting giving his son a beris or to bury him! The Rama says anything
short of full nidui can be used whenever BD orders him to give a get, even
in cases where the gemara doesn't say "kofin oso". And if the husband
refuses to provide onah -- true of any couple that already had a civil
divorce or otherwise are contentiously fighting the issue of gett -- the
Rama adds even nidui and cheirem to the arsenal. (Citing the Rivash 127)

So, even those who do not hold like the CZ would allow protesting in
front of the husband's home in the typical agunah case. Not that that's
nidon didan, but it is the more common situation.

In that blog discussion, the author insisted it's a normal case of  ma'us
alai. I want to say up front here it isn't. We see both the Rama and the
Chakham Zvi treat a case where the man moved out differently.

Tir'u baTov!
-Micha

-- 
Micha Berger             If you're going through hell
mi...@aishdas.org        keep going.
http://www.aishdas.org                   - Winston Churchill
Fax: (270) 514-1507

Cantor Wolberg, pondering the midrash on "Hashem mi Sinai ba, ve zarach
mi Se'ir lamo, hofia' me har Paran, ve ata me rivevot kodesh" where G"d
reached to various nations who then turned down the Torah, rejecting
some values, which, while in the Torah, are really universal values,
pondering also chet ha egel where we were not sticking to those basic
values, either. And thus he asks, why were we chosen.

One great answer comes up in this week's parsha: ki yeda'ativ asher
yetsave et banav ve et beito acharav lishmor derekh ha Shem la'asot
tsedaka u mishpat.

The above midrash rather explains that even though they were not
descendents of the avot, He still have them a second chance, however,
that was not the reason for Israel's election.


RMB wrote:
> Which is why we're later called a "mamlekhes kohanim" -- in the
> pre-eigel ideal, the bekhor is the kohein *for the others of the family*!

The Seforno has a remarkable explanation of the phrase you cited, which
cites even better: this is not about what we usually call kohanim. Rather,
it is an injunction for all of Israel to act as kohanim, meaning as
ambassadors and teachers bridging between G"d and mankind, acting as
spiritual business too the nations of the world.

--
mit freundlichen Gren,
with kindest regards,
Arie Folger
check out my Bloch http://ariefolger.wordpress.com
sent from my mobile device

 The following flies in the face of the midrashim dealing with G-d going to the different
  nations and their refusing the Torah but finally the Jews accept it:

  Rashi, basing his view on Midrash Genesis Rabbah 79:7, 92:4, and 95:2, 
  the Gemara, Yevamot 21, and other sources, states that Abraham observed the entire Torah, 
  even though it was not revealed until centuries later to Moses, including even rabbinical prohibitions 
  that weren?t enacted until a millennium later.The Ramban adds that the afore-mentioned sources say 
  that the other Israelite ancestors also observed the Torah before it was revealed.

  So how can you say the Jews were offered it when they already were observing it from the moment 
  the first Jew enters the scene.  How then, can you explain that G-d went to the different nations offering
  them something already observed by the Jews? In addition, if the ovos were observing Torah, then it 
  was a fait accompli.
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Of course you can have it both ways.  Midrashim can contradict one 
another, because they aren't literal.  Or needn't be literal.  For 
example, the midrash says that Darius is the son of Ahasuerus and 
Esther.  The midrash also says that Ahasuerus never slept with Esther; 
that an angel came and took her place.  Each of those midrashim may 
teach something different in its own context.  Because that's what 
midrashim are.  They're stories meant to teach a lesson (or lessons).  
In some cases, they use factual events to illustrate the lesson, and in 
other cases, they use fiction.  But the factualness of the details of 
the midrash are irrelevant to the lesson(s).

Lisa

On 10/14/2013 11:10 PM, cantorwolb...@cox.net wrote:
> So how can you say the Jews were offered it when they already were 
> observing it from the moment
> the first Jew enters the scene.  How then, can you explain that G-d 
> went to the different nations offering
>   them something already observed by the Jews? In addition, if the 
> ovos were observing Torah, then it
>   was a fait accompli.

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On Tue, Oct 15, 2013 at 07:03:25AM -0500, Lisa Liel wrote:
> Of course you can have it both ways.  Midrashim can contradict one  
> another, because they aren't literal.  Or needn't be literal...

I would go with "needn't be". But I chimed in really to add to what
you wrote.

Even the lessons two medrashim teach need not be consistent with each
other. Machloqesin are no less possible in aggadita than in halakhah.
If two different tannaim or amoraim are quoted, there is no reason
to assume they share the same hashkafah.

Let me dial that back... There is a tendency to minimize machloqesin
in aggadita; when possible, try to make them dovetail. I don't know how
old it is. I know REED firmly believed in this principle. In his hands,
the Gra vs the Besh"t on tzimtzum was largely a misunderstanding. But in
any case, "minimize" means to get something as small as possible, BUT
NO SMALLER.

Tir'u baTov!
-Micha

-- 
Micha Berger             If you're going through hell
mi...@aishdas.org        keep going.
http://www.aishdas.org                   - Winston Churchill
Fax: (270) 514-1507

On 15/10/2013 12:10 AM, cantorwolb...@cox.net wrote:
> The Ramban adds that the afore-mentioned sources say that the other
> Israelite ancestors also observed the Torah before it was revealed.

Though he limits it to Eretz Yisrael.

> So how can you say the Jews were offered it when they already were
> observing it from the moment the first Jew enters the scene.

Why not?  Where's the problem?   On the contrary, the fact that they
were already studying and observing it would be the best evidence that
they deserve to be given it.


> How then, can you explain that G-d went to the different nations
> offering them something already observed by the Jews?

Again, why not?  How would the Jews' observing it prevent the other
nations from accepting it?


> In addition, if the ovos were observing Torah, then it was a fait accompli.

It was certainly a fait accompli that they would be given the Torah.  And
I think it was probably a fait accompli that the other nations would refuse
it, though R Micha disagrees.  But even if there were a possibility that
some or all of the other nations would accept it, how would that affect the
Jews' accepting it?  And if you want to say that the Jews had a chance to
reject it, how would the avos keeping it change that?

-- 
Zev Sero               A citizen may not be required to offer a 'good and
z...@sero.name          substantial reason' why he should be permitted to
                        exercise his rights. The right's existence is all
                        the reason he needs.
                            - Judge Benson E. Legg, Woollard v. Sheridan

http://rechovot.blogspot.com/2013/10/providing-contraceptive-
information-for.html
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Volumes I and II of the translation from the German of this commentary
were published in 1948. These volumes are available on my web site of
articles related to TIDE. The site is
http://www.stevens.edu/golem/llevine/rsrh/

Links to both volumes are near the top.

Rav Breuer wrote only two volumes, one on Bereishis and one on Shemos.

The preface to Volume I says in part
    The present popularized adaptation of Hirsch's Commentary on the
    Torah tends to develop the basic concepts and ideas of our Torah
    which characterize Torah Judaism in its ideological uniformity. From
    the extensive material the principal explanations to the individual
    chapters and verses were selected. As far as practicable, the topics
    are presented in concise and popular form, as they are intended
    for a wide circle of readers and, above all, for the mature Jewish
    youth. They should also serve as a welcome addition to the material
    of the teacher in his preparation for Torah-instruction.

Yitzchok Levine  


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