Avodah Mailing List

Volume 31: Number 180

Sat, 26 Oct 2013

• 1. Rav Hirsch m'makom request (Prof. Levine)
• 2. rav benyamin lau proposes (Ben Waxman)
• 3. Re: Beit Yosef's Algorithm (Simon Montagu)
• 4. Kofin Oso (Chana Luntz)

At 03:19 PM 10/25/2013, R M. Cohen wrote:

>Someone asked me the following..
>
>
>
>"Do you know where Rav Hirsch talks about how it's no accident that on the
>third day of creation the waters were gathered into oceans and also dry land
>was revealed,
>
>because only when you have a boundary, then things can start to flourish"
>
>
>
>Can anyone an accurate m'makom where this quote is from?
>
>(and so I can get his exact wording)
>
>
>
>Thanks, mordechai cohen

See his commentary on Bereishis 1:10 (page 19 in the new translation 
of the Hirsch Chumash.)

YL
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http://www.kipa.co.il/jew/54021.html

Rav Benyamin Lau  proposes that women be able to "meqadeish" men.

Rav Navon rejects the idea entirely.

Ben

On Wed, Oct 23, 2013 at 12:11 PM, Rich, Joel <JR...@sibson.com> wrote:

> The Beit Yosef in his introduction provides his algorithm for arriving at
> psak. The first step is to look at Rambam, Rif and Rosh and go by the
> majority.  He then states what to do in cases where one of the 3 has no
> opinion etc.   I was wondering if anyone has ever done a study of all or a
> subset of the Beit Yosef?s rulings to see what percentage of the rulings
> support the claimed algorithm.   I have a specific example in mind where
> all 3 of the amudim omit a particular requirement/ruling and yet the Beit
> Yosef follows the Tur who does quote/require  the ruling.
>

As it happens I saw exactly the book you're looking for in shul this
morning: `Ein Yitzhak by Yitzhak Yosef (ROYZTL's son).
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RMB posted:

 

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.

Here is the list from that siman in the Shulchan Aruch:

Si'if 1. These are those whom they force: One who develops bad breath or a
nose odour or who returns to gathering dog waste or to being a tanner or
working with copper.  And she gets her ketuba.  But if she knew before
marriage and accepted they do not force a divorce.

One who has boils - is forced even if she knew before marriage, and likewise
she gets her ketuba.

Rema:  There are those who say that a heretic we force by way of non Jews
and there are others who say we do not for a heretic or someone who is
otherwise over on the religion unless he causes her to sin, like causing her
to eat something forbidden, or violates a cherem or he vows and does not
fulfil (which will cause his/her children to die) and if he pimps
prostitutes if there are witnesses, or he acknowledges there are those who
say that we force him.

Si'if 2. discusses forcing chalitza.

Si'if 3: One who says I will not feed or support her, they force him to feed
or support her. But if the beis din cannot force him to support her, because
he does not have the wherewithal to do so, and he is not prepared to hire
himself out to support her, they force him immediately and she gets her
ketuba, and the same with one who refuses to have relations.

Rema: And so with a man who is regularly angry and sends her out of his
house constantly they force him  And if he hits her regularly there are
those who say they force him - and if she provided provocation (eg she
curses his parents) then she loses her ketuba.

Si'if 4: if he develops a blemish on a hand or a leg, they don't force him
to send her out and give her ketuba but judge her like a moredet.

Si'if 5 A man who is periodically crazy, and she knew before the marriage,
but her father thought she could stand it, but she now says she cannot, and
she fears he will kill her with anger we don't force him, because we only
force in the cases that the Chachamim permitted.

Rema: One who is epileptic, there are those who say there is no blemish and
they do not force on this.  And in any event they do not force her that she
should be with him [Mordechai in the name of the Raviya]  and there are
those who say that there is a blemish in the man, and force him to divorce
[the Rosh].

Siman 6-7: Discussions about when we force due to his infertility or lack of
ability for relations.

Siman 8:  If it is known that the man wants to go to another land, he needs
to swear he will not go or they force him to give a get for a time [l?zman]
before he goes.

Siman 9:  If it is known that he is not able to stay in the place they
married, because of danger to life, they force him to divorce  because she
is not able to go after him.

Si'ifim 10-19 - Discussions about where the couple have been married for 10
years without children and subsequent marriages.

Si'if 20:  Anyone who marries a woman sinfully, even an issur d'rabbanan
like shniot, they force him to divorce.

Si'if 21:  All these that they say to send her out, they force him even with
sticks, and there are those who say that any case that was not said in the
gemora explicitly that they force him to send her out, except to go out
only, they do not force him with sticks but they say to him: The Chachamim
obligate you to send her out, and if he does not send her out it is
permitted to call him a sinner.

 Rema: and since there is a disagreement amongst our rabbis, it is fitting
to be machmir and not to force with sticks, so that it will not be a get
meusha (Tur in the name of the Rosh) but if he has the woman sinfully, then
according to everybody they force him with sticks, and in any place that
they do not force him with sticks they do not put him in cherem also.  And
in any event they are able to decree on all of Israel that they should not
do to him any good or do business with him or circumcise his son or bury him
until he divorces.  And any stringency the Bet Din may impose in this
manner, except that they should not put him in cherem, but one who does not
fulfil his obligation of relations, they are able to put him in cherem and
compel him to either fulfil his obligation of relations or divorce, as this
is not forcing, only fulfilling his obligation of relations, and so all
similar to this. ... 

 

> 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.



Note that the Tzitz Eliezer quotes Rashi,  the Ragma, the Ri, the Rashbam,
the Ra?avid and the Smag as agreeing with the ability to force. (Tzitz
Eliezer, chelek 4 siman 21).


> 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. 

 

Of course this is very much the Rosh's darko b'kodesh.  In a similar vein,
he forbids the saying of a bracha that was not specifically mentioned in the
gemora (Brochos perek bechor siman 1)  and the making of gezeros that were
not specifically mentioned in the gemora (Meseches Shabbas perek 2).  Ie the
Rosh is very wary of post tamudic rabbis (or anybody) considering themselves
to have the same powers as the rabbis of the Talmud.

 

But here the implication drawn is narrower than it would seem the Rosh
himself held.  In the case in question (ie that found in 43:3), while the
wife alleged that he was periodically crazy, the husband claimed that he was
just not very good in the ways of the world and for this the Rosh did not
feel there was any case in the Talmud that would provide a basis on forcing
him to divorce.  But when it came to the case of the epileptic (Si'if 5 in
the Rema and  Klal 42 siman 1 in Teshuvos HaRosh)  it is the Rosh who is
quoted as that being a sufficient blemish that he can be forced to divorce.
This is not a case specifically discussed in the gemora - but rather the
Rosh understands the gemora as referring to any case where he develops a
great blemish, with modern rabbis able to interpret what a great blemish is,
in this case including epilepsy.

 

>The Rashba agrees with the Rosh in this respect as well.

 

Agreed.  But it is also noteworthy to see what both the Rosh and the Rashba
say regarding gitten that were forced in accordance with the Rambam in the
case of maos alai.

 

Here is the specific language so you can see it:

 

From the Rosh: - 43:6

??"? ?????? ??? ?"? ???, ??? ????: ???? ???, ?????? ???? ??????, ?"? ??"?
?"? ?????? ????; ????? ????? ?????? ???????, ??? ????? ????? ??? ????
??????, ?????? ?? ????? ??? ????, ?????? ??? ???? ????, ?? ????????? ????
????? ?? ?????? ???? ???, ????? ????? ??? ???? ????? ????, ??? ????? ?????
??, ???? ?????? ??????; ??? ???? ??? ????, ??? ?????, ?? ???? ?? ????? ???,
?? ???? ????. 

 

Even though the Rambam writes that where she says: Maos alai, that they
force him to send her out, Rabbanu Tam and the Ri disagree with him, and
since there is a disagreement of our Rabbis, why should one put his head
between two great mountains to do a forced get that is not according to the
law and to permit a married woman?  And further, because for our sins the
daughters of Israel are promiscuous in this time, and there is to be
concerned lest they have put their eyes to another, and all the work in this
claim, multiplies mamzerim in Israel, and on the future I write, but that
which is in the past, if they relied on the Rambam, that which they did they
did.

 

From the Rashba ? Shut Rashba Chelek 2 Siman 276

 

???? ????, ?? ???? ????? ???????, ????? ????? ?????"? ?"?, ??? ???. ?? ??
??????? ?"?, ???? ?????: ?????? ????, ?? ???? ?????. ???????? ????? ?? ????,
??? ??? ?? ????? ?????, ????? ??????.

 

In any event, if they were accustomed in that place, to do according to the
Rambam, it is fine for them. Because also the Geonim it is known that they
said:  that they force to divorce all who was a moredet.  And in places that
are accustomed to go according to their mouths, there is not to us the
strength to disagree with them and to nullify their words.

 

In short both  appear to hold bideved such a get is kosher.  

 

...

> 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.

 

Yes, but note that the Rashbam's approach would seem to result in a
permission to force in situations that are even wider than the Rambam's.
The Rambam only allows force if the Chachamim tell him to, or perhaps if
there a genuine mitzvah to divorce.  The Rashbam allows force in any case
where the woman hates him and will not be reconciled.  Any case where a
woman is prepared to pay $100,000 to have him beaten up to get a get would
seem automatically to fall into that category.

 


> 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."

 

I confess I have been unable to find this Radbaz, despite looking on Bar
Ilan (version 17) which is the only access I have to the Radvbaz.  Bar Ilan
contains 8 chelakim of the Radbaz, but I cannot find this number anywhere,
not did it seem to come up when I tried to search.  The pashkevil that RZS
pointed us to also cited a different Radbaz, but again I could not find that
on Bar Ilan.  I would be very interested in seeing either, or both, these
teshuvos because obviously it is difficult to discuss a shita without seeing
it inside.

 

However this shita rather surprises me for a very simple reason.  The
discussions in the gemora regarding forcing a man to give a get is given in
the context and linked to forcing a person to bring a korban when required
(you can see this for example on Baba Basra 48a).  In both cases the Torah
uses the word "rotzono" which is what requires both the korban and the get
to be given of their own free will, and yet the gemora goes on to say, the
Chachamim are able to force. If the Chachamim are actually only able to do
this because of afkinhu rabbanan, then why is there any need to link to the
korban case, since clearly they have no such ability vis a vis the korban?
Nor is ritzono a relevant factor, afkinhu rabbanan isn't actually a case of
get, it is a case of no kiddushin

 

Nor is it very clear why the Chachamim would need to go to the trouble of
forcing if that is the power they are using - they can just uproot the
kiddushin, as they do in the four cases where Afkinu rabanan is actually
cited in the gemora.

 

Now the Rosh does use the phrase ? but specifically not in relation to the
Rambam (whom he does discuss and who holds that it is a matter of the din of
the gemora that one can force), but in relation to the geonim.  The Rosh
holds (klal 43 siman 8) that the geonim in particular generation where there
was a hora?as sha?ah, made a takana allowing them to force a man in any
circumstance that a woman said she didn?t want to be married ? and for
*that* hora?as sha?ah, they relied upon afkinhu rabbanan.   Now as the Tzitz
Eliezer points out, it is almost impossible to say that the Rosh?s
understanding of the geonic takana is correct, as we know from other sources
that this was a takana that endured for somewhere between 3 to 5 hundred
years, and the details as he understood it (and he suggests various
different details in different places)  also do not seem correct, but that
is irrelevant, what is key is how the Rosh understood the takana of the
geonim.  And he seems to understand it as being extremely wide, and it is in
relation to this that he understand the need to introduce afkinhu rabanan.

 

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

 

Why would that be?  As mentioned above, the Rosh is, in general, very
reluctant to step beyond what the Rabbis of the gemora decreed, whether it
be brachos, or gezeros or whatever.  This seems part and parcel of that, and
there is no need to invoke afkinu d'rabbanan.  And where he does invoke it,
it is in a very different context, that of the takana of the geonim, ie post
Talmud.  

 


> 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.

 

So according to this shita  one would then need to ascertain when it was in
fact a mitzvah to divorce.  The discussion on when it is or it isn't a
mitzvah is found in the Mishna at the end of Gitten [Gitten 90a]:

 

Mishna:   Beis Shammai says: A man may not divorce his wife unless he finds
in her an ervas davar, as it says [Devarim 24] because he found in her an
ervas davar, and Beis Hillel says:  even if she burnt his food, as it says:
because he found in her an ervas davar, Rabbi Akiva says:  even if he found
another one who is more beautiful than her, as it says [Devarim 24] and it
will be if she does not find grace in his eyes.

 

As the gemora explains, Beis Shammai requires that therefore there be some
matter of ervah [sexual impropriety] that he finds in her before divorce,
and Beis Hillel says either ervah or some other problematic matter, but that
merely because he fancies somebody else better is not a justification.

 

As the Aruch HaShulchan states in Siman 119 si'if 1, the consensus, not
surprisingly, is that the halacha is like Beis Hillel.

 

That is, it is not a mitzvah for a man to divorce his wife only because he
has set his eyes upon another, and indeed, there are Rishonim who hold that
it is an issur to divorce in such a circumstance.  

 

The siman that deals with this form of divorce is not the one cited above as
Siman 154 fundamentally deals with cases where there is a problem with the
husband, and where the wife is entitled not only to a divorce, but to her
ketuba.  For a discussion therefore of when it is a mitzvah for a man to
divorce his wife, the place to go is Siman 119.   The Shulchan Aruch states
in si'if 3 that a man should only divorce his wife if he finds in her an
ervas dvar (although not stating there whether that is Beis Hillel's
interpretation or Beis Shammai's). 

 

Of course, the classic case of ervas davar according to everybody's
definition is adultery (a point Rashi notes on the gemora in Gitten (88b d?h
?k?din?) that discusses forcing as the classic case where force is
required).  Post adultery she is of course assur to her husband, so he is
not permitted to be reconciled with her even if both of them want to.  But
the Shulchan Aruch also rules that it is a mitzvah to divorce a woman who is
bad ?b'daoteha?, or who is not tznius like the kosher daughters of Israel.
Now perhaps you could try and set up an argument between those who want to
interpret this in a minimalist fashion, and only force where the gemora said
such behaviour is inappropriate- such as weaving in the marketplace (see
Ketubos 70a) or going out with her hair uncovered, and those that think that
something like posting highly inappropriate pictures on Facebook might also
fall within this category.  Be that as it may, there are clear conditions
which are set out which define divorce as a mitzvah, and hence would trigger
the test of the Tosphos.

 

But what this does mean, of course, is that if a woman really *really* wants
the get to be considered within the mitzvah category - then she has certain
options open to her, even if they are not options that we might want to
encourage.  Indeed, I once came across a similar situation with a Muslim man
and woman.  In the old days, when you could get a coach across the border
between Israel and Egypt, our coach guide was a devout Muslim.  And he was
now onto his third wife (sequentially).  And he said he had loved his second
wife very much, but she had not loved him, and had said to him, if he did
not divorce her, she would go out without her covering garments on.  And
that was a sufficiently shameful threat for him that he gave her a divorce.


 

But in the cases we are discussing perhaps you can argue we already have
enough proof.  The Shulchan Aruch rules (Choshen Mishpat siman 420 si?if 1)
that anybody who lifts his hand to hit his fellow is considered a rasha.
How about paying $100,000 to beat somebody up?  Is that not ra?ah b?daoteha?
So if you hold that the payments were lo k'din and were a means to try and
ensure he gets beaten up, then, even though ain shaliach b?davar averah, you
would seem to have defined her as an isha ra'ah, - whom it would therefore
be a mitzvah to divorce, even if you have to force the husband to do it.

 

Note however that following through on this line of thought, while the logic
is impeccable, it does mean you are increasing the pressure on any woman in
this circumstance to abandon daas and give in to temptation.


> 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.

 

But here again is where you need to invoke the Rosh's own words, also quoted
in the Tur:

 

 ? on the future I write, but that which is in the past, if they relied on
Rabbanu Moshe [the Rambam], that which they did they did.?

 

If, as RYH suggests, the Shulchan Aruch is following the Rosh, then while
one would not hold by cattle prod gitten l'chatchila in a case of ma-os alai
(and hence, the Shuchan Aruch would not rule to do so in his sefer), bideved
they would be regarded as kosher.  There is nothing in the Shulchan Aruch
quoting the Rosh in Si?if 5 that would go against that, as the Rosh was
dealing with a l'chatchila case, where he was asked to allow a get to be
forced., and so is the Shulchan Aruch.

 

But I also agree with RMB when he said:

 

>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.

I also think it important to look again at the Rosh, because something he
said is very jarring to somebody who lives today.  We are constantly
bombarded with statistics, even in reputable newspapers like the British
Times, that suggests high figures of adultery rates, including for women.
Now one would certainly hope that the figures are a lot lower amongst frum
women, but how much lower are they, realistically, going to be amongst women
no longer living with their husbands, amidst all the temptation that the
current world offers, and where they hate him?  And yet us look at the Rosh:

 

?And further, because for our sins the daughters of Israel are promiscuous
in this time, and there is to be concerned lest they have put their eyes to
another, and all the work in this claim, multiplies mamzerim in Israel?.

 

Is not the immediate reaction of anybody living today to be ?Huh??  Surely
*not* forcing is going to lead to an increase in mamzerim in Israel?
Because there is a pretty high likelihood that such women are going just to
go off and commit adultery.

 

And yet while the Rosh is concerned with the women of his day putting their
eyes to another, he is not worried about them actually following through
without receiving their get.  This can be seen even more clearly in his Shut
in Klal 43 siman 8 where he says regarding the Rambam:

 

??? ????? ??? ???? ???? ???? ?????? ??? ???, ?? ???? ?? ?????? ?????? ????
?? ????, ??? ???? ????? ?? ???? ?????! ??? ????? ???? ????? ???? ?????? ???,
????? ????? ???? ????? ?? ???? ???? ??????, ????? ????? ????? ????, ????
???? ??? ??????, ????????

 

?And what is it that gives a reason to force a man to divorce and to permit
a married woman -  that she is not able to have relations with him, and that
she will remain a living widow all her days, behold is it not that she is
not commanded in being fruitful and multiplying?  And that because that she
goes after the desires of her heart, and puts her eyes to another and
desires him more than the husband of her youth,  we complete the matter and
force the man, where he loves the wife of his youth, that he divorce her?

 

Note again what is not at all contemplated ? that she might have enough of
being a living widow and commit adultery.  

 

Now there seem to be two possibilities.  Either that the Rosh rejects all
those mishnas and gemoras that suggest that women are, if anything, more
susceptible to being seduced than men (eg he holds contrary to Rabbi
Yehoshua (Sotah 20a) that a woman  prefers one kav and triflus to nine kavs
and prishus).  And likewise that he holds that not only one woman in 1000
can be found who is able to resist the temptation of adultery but indeed all
women who claim to hate their husbands and who might have set their eyes on
another fall within that category.   Or, alternatively the reality was that
in the Rosh?s day adultery was not something that women could easily access,
no matter how they desired it, ? their only route to achieving anything
should they put their eyes on another was to force a divorce. 

 

Otherwise how can we explain these statements in which it never seems to
cross the Rosh?s mind that a likely outcome of this is going to be adultery?


 

But in today?s world ? who here has the confidence to say this?  Is this
indeed not multiplying mamzerim in Israel?   Is this not in fact a classic
case of lifnei iver?  The *only* reason a woman in this circumstance is
violating an issur of the magnitude of adultery is because the husband is
refusing a get.  If the husband gave the get, there might be some znus (or
there might not, she might marry another), but that is a much lighter
averah.  And this is where she has asked him to take away the stumbling
block, and he has refused.   In a world where it is accepted that sexual
satisfaction is a given and a need (even if the Rosh holds otherwise), and
where she can find plenty willing to offer to ensure she does not suffer
such need, and which is full of temptation and seduction and which is
saturated with sexuality, and where such a woman is living alone, and where,
let?s face it, adultery is the ultimate form of betrayal of the husband she
now so deeply hates ? the deep faith that people appear to have in the
purity and morality of such bnos yisrael  appears rather extraordinary.
For happily married women who are given their onah to be expected to resist
may be one thing ? although we know that many communities today try and
restrict contact severely even in those cases to put temptation out of reach
? but for women in such circumstances?    I know the passages in the Talmud
that refer to such matters often infuriate women, but what do you think
Chazal would say on this assumption?    Somehow this seems to be the
elephant in the room that nobody wants to address ? that the current
situation is almost certainly multiplying mamzerim in Israel ? even where
the women are not, in fact, going off to a tarbut rah (and indeed there are
those who are marrying in conservative and reform or even civil
circumstances, which is probably not that far off the situation postulated
by many as occurring in the times of the Geonim, where if they declared
themselves Muslim, they  could be free of their Jewish husband and go off to
find a Muslim one).  If the primary concern is, as the Rosh states
repeatedly, of not multiplying mamzerim in Israel ? then holding to what he
ruled in very different social circumstances would seem to be achieving
precisely the end that he sought to avoid.

 

 

.-Micha

Regards

 

Chana

 

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