Monday, April 9, 2012

Igros Moshe: Law requiring Get if civil divorce

This teshuva seems to make it impossible to justify publicly embarrassing a person solely for the purpose of giving a get - especially when he can not escape from the embarrassment by moving to a different neighborhood or community.

Igros Moshe( E.H. 4:106): This that there is an effort being made to pass a law in the state legislature that whenever a Jew becomes divorced in a secular court he is also obligated to give his wife a valid get in beis din – this is definitely a very major accomplishment. Such a law does not constitute an illegal coerced get (get me’usa) because of the involvement of non‑Jews. That is because the husband has the free will not to divorce his wife according to the secular law. It is only because he wants to obtain a secular divorce in order to be exempt from the financial obligations of his wife and that he will be able to legally marry another woman – and the secular government will not give it to him unless he has given a valid get to his first wife. Therefore he is giving the get of his own free‑will. This is exactly equivalent to one who doesn’t want to give his wife a get but when they give him thousands of shekel – suddenly he becomes willing to give it. This is not considered coerced (me’usa) since he has the free will to decide whether desire for the money is more important to him than the desire not to give the get. This is not considered coerced (me’usa) since he has the free will to decide whether the money is more important to him then giving a get. It is a daily occurrence amongst the Jewish people that a husband is given this choice.

The coercion which invalidates a get is when he is beaten or imprisoned or given some other affliction in order that she be given the get. Such cases are considered that he is being forced to give the get – only then is it in invalid. Similarly even in the case of financial pressure in a case where the government obligates him to pay as a punishment for not giving the get is considered as a get given with financial coercion because he doesn’t want to lose the money. An additional case is if someone takes a large sum of money from the husband and refuses to return it unless he gives a divorce – is also considered to be illegal coercion. [See the Shulcahn Aruch E.H. 134.4 in the Rema and Pischei Teshuva (E.H. 134.11)] In contrast if the husband is given money to motivate him to want to give the get – it is obvious that this is not considered coercion and it is a daily occurrence. So this concern for obtaining a benefit is exactly the same thing as giving a get in order to obtain a civil divorce. Even if he is imprisoned for a different matter and the wife has someone who is willing to intervene to obtain his freedom on the condition that he give her a get – this is not considered that he was coerced to give a get. That is because the cause of his suffering was not caused by his not giving a get – but because of an unrelated matter. The giving of the get only provides a remedy for removing the suffering. Therefore a get given to stop suffering from an unrelated matter is considered to be total free-will. This is quite simple and logical. This is a valid get even in a situation where he has no obligation to divorce her.

42 comments :

  1. Translation, please, anyone?

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  2. I don't post anonymous comments

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  3. "This that there is an effort being made to pass a law in the state legislature that whenever a Jew becomes divorced in a secular court he is also obligated to give his wife a valid get in beis din – this is definitely a very major accomplishment. Such a law does not constitute an illegal coerced get (get me’usa) because of the involvement of non‑Jews. That is because the husband has the free will not to divorce his wife according to the secular law. "

    Rav Moshe is specifically allowing advocating and passing the secular Get Law's "because the husband has the free will not to divorce his wife according to the secular law." But that is NOT the case under current secular law. The wife can force a secular divorce (and invoke the get law) even if the husband does not want or care to divorce his wife under secular law. Perhaps prior to the advent of secular "No-Fault Divorce" laws, the husband could have somehow refused a secular divorce in court. But in 2010, New York State became the final state in the U.S. to pass a law allowing No-Fault Divorce.

    So Rav Moshe would be opposed to the current Get Law's, and consider their use to result in a Get Meusa.

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    1. Jack,

      The problem with the New York law isn't that it is No-Fault Divorce, which itself wouldn't be a problem(and actually may be a benefit on the side of halakha), as it is defined as, "Under a no-fault divorce system the dissolution of a marriage does not require an allegation or proof of fault of either party."
      The problem with New York's law is that it does not require mutual consent. Yes I think Rav Moshe would have much more opposed to a Get law in conjunction with a divorce law that allows a wife to divorce her husband without consent.

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    2. Would not this effectively mean, that ANY divorce/Get that goes through the New York divorce courts (or the divorce courts of any state or jurisdiction that has a "Get Law"), would effectively be a Get Meusa, since the secular law is hovering over the husbands head as a threat?

      If so, how could anyone living in New York (or any state with a get law) ever obtain a valid kosher Get??

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    3. good questions see the following by Rabbi Malinowitz

      http://www.jlaw.com/Articles/getart1.html

      http://www.jlaw.com/Articles/get_exchange1.html

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  4. I dont see how this makes it impossible to justify Ora's actions? They are not doing anything that Rav Moshe says is assur. They are simply letting the world know that Friedman does not want to give a Get and making sure that everyone tell him how terrible that is. There is no physical or financial coercion.

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    1. If he gives a get because he is being humiliated that is considered a coerced get.This was the original question - where do we see that contemporary poskim permit humiliation of the husband because the wife has decided she wants out of the marriage maous alei?

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  5. Where do you see that humiliation equals coercion and how do you know that publicizing a man's refusal to give a Get is a form of humiliation. ORA is not threatening him with a fine or trying to throw him to jail.

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  6. "This is not considered coerced (me’usa) since he has the free will to decide whether desire for the money is more important to him than the desire not to give the get. It is a daily occurence..."

    Paraphrasing Rav Feinstein's words to fit this case, one could say the following:

    If Friedman is being humiliated by ORA to pressure him to give the get, this is not coercion because he has a choice: whether it is more important for him not to be humiliated or to withhold giving the get. This is now a daily occurence that a man who refuses a get is given this choice.

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    1. nope - Rav Moshe clearly states that the pressure can not be directly to give the get but most be for a different reason. He gives the get because he wants to receive the money offered. He gives the get because he wants to receive a civil get.

      In the case of the humiliation it is because he won't give a get and therefore it is not for a different reason that he would be submitting to the humiliartion to give a get

      If he were in jail for a different reason or being humiliated for a different reason and the giving the get would stop it because someone would then intervene on his behave - that is permitted pressure.

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    2. Your interpretation is based on interpreting this sentence as referring to humiliation:

      "The coercion which invalidates a get is when he is beaten or imprisoned or given some other affliction in order that he be given the get."

      But Rav Moshe doesn't refer to public campaigns. I submit that the public pressure of ORA et al is not an "affliction" like being beaten or imprisoned. They are only publicly pointing out that he is oppressing her and should do the right thing and give the get. When someone is committing a big injustice people have an obligation to speak up, and this is not the same thing as beating or imprisoning someone. You seem not to think get refusers are not doing anything wrong, but even if they are following the letter of the law they are not following the spirit -- which is chesed, justice, pleasantness and peace and protecting people from their oppressors (see for example the arguments of R' Shlomo Riskin and R' Mark Dratch regarding agunot). One of the main qualifications of a judge is that he "have a strong, fearless heart to rescue an exploited or victimized person from the one who oppresses him" (Chafetz Chaim, Sefer HaMitzvot HaKatzar).

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    3. You are totally ignoring the consensus of poskim in this area to come up with a new Torah based on Western Feminist values. There is no question the Chofetz Chaim would disapprove of your understanding. You are also refusing to accept that the Torah is simply not written or understood the way you are reading it - that should bother you.

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    4. Yeshaya

      There are no major poskim saying that one may embarrass a person and more especially embarrass their family in order to get them to give a Get. Every supposed source or Teshuva that has been brought has concerned itself with things that generations of poskim have accepted such as forcing the husband to support his wife so long as he is married to her, or forbidding him from remarrying.
      Then from those things ORA and its supporters wish to extrapolate that they can do these other things. The problem is that they have no foundation to do so. There is no consensus amongst modern poskim, and there is no mesorah on which to directly rely. Therein lies the problem. Who ever said it was permitted to publicly embarrass the person especially when no Beit Din has yet ordered him to give a Get.
      If Rav Shachter wants to innovate halakha as what he sees to be a need for modern times, then he should write a Teshuva, list his sources, and let others critique it. However as it is, he is claiming authority from sources which give no backing to do what he is doing.
      A man could realisticly say he would rather support his wife and children for the rest of her life rather than allow his children to be raised by another man. So that would be his choice. But you cannot tell me that a man would reasonably want to allow himself, and his parents, and other relatives to suffer constant embarassment then divorce his wife. He has no gain.

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    5. There are no major poskim saying that publicizing his refusal to give a get is Assur, certainly not the Rav Moshe teshuva above. Friedman is not being coerced into anything. He is not being forced to pay a cent, beaten, or thrown in jail. He has a choice - he can give a Get or not. What he CAN NOT do is refuse to give a Get and DEMAND that his refusal be kept confidential.

      The ONLY thing ORA is doing is publicizing the names of people refusing to give a Get. If there is nothing wrong with withholding a Get, how can it be humiliating? Following the Torah is never humiliating.

      Further, the newspapers in the US regularly publish seruvim against men who refuse to give a Get. Contrary to your suggestion above, such a seruv was issued against Friedman, and not by Schacther. See here (http://www.getora.com/Seiruvim/Aharon%20Friedman%20seruv.pdf)

      Lastly, if you do some research on the web, you will see that Schachter is anything but a feminist. He has been a thorn in the side of the feminists for years. To suggest that he is twisting the Torah to further a feminist agenda is absurd.

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    6. I'm not sure there is a consensus -- many modern Orthodox rabbis have written articles and books on this issue, and these writings have been completely ignored on this blog (though I agree that a detailed teshuvah should be written on the precise issue of public pressure if this has not been done already).

      This is not a case of reading Western feminist values into the Torah. Judaism is not a religion of amoral or immoral legalism. The whole foundation of the Torah is, according to Hillel, what is hateful to you do not do unto others (that is, do not cause others unnecessary suffering). Someone who refuses a get (whether it is a man refusing to give one or a woman refusing to accept one -- and there are apparently equal numbers in both categories) is creating a huge amount of unnecessary suffering (not just for her but for mamzerim if she produces any). Even if refusing the get complies with the letter of the law it violates its spirit, perhaps like the men denounced by the prophets who brought the correct sacrifices yet mistreated vulnerable people. Just because something is technically permitted does not mean it is correct and we have no right to criticize it.

      I don't agree with the characterization of ORA's actions as "humiliating" or "embarrassing," or the idea that this is coercion. Humiliation or embarrassment -- this would be if they are stripping him naked in public or dumping manure all over his house. They are simply speaking the truth -- that he is unjustifiably oppressing her and all he has to do to stop it is fill out a little piece of paper. After all it is a mitzvah to reprove your fellow man.

      R' Tzadok, I disagree with your last two sentences. Apparently Friedman is choosing to be publicly criticized rather than let his wife remarry. So it is a choice. If it was coercion then as soon as the public criticism starts the men would give in. Apparently some of these get refusers prefer to engage in cruelty than to keep their good name.

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    7. If you have sources that support public humiliation(and standing in front of someone's house, place of work, or residence of family and accusing of spousal abuse- which itself is a stretch -is public humiliation). Hence Hawthorne wrote a book on the subject of such public humiliation called The Scarlett Letter.

      Now aside from that just about any sort of pressure you want to apply is problematic. Hence there were various Takanas instituted by the Rabbanim and accepted as a whole(Rabbeinu Gershom) ect.

      Let's take the support(מזונות) issue as that is the one I am most familiar with. Because the Ketubah stipulates that the man will support his wife so long as he is married to her, various Rabbanim have said that she is entitled to support. Rav Shternbuch seems to allude to it in his teshuva 4:301(which Rav Eidensohn has included on this blog with translation), he states, irst of all since they are coercing him financially not in accord with the halacha regarding the support payments which are much higher than the halacha - that constitutes theft. Seeming to indicate that his problem is that the secular courts demand more than he is actually obligated to pay, not that he is not obligated.
      Rav Ovadyah Yosef in his Teshuva Yabia Omer 8:2:2 and the Ben Ish Hai Rav Pealim 4:9 both say that she is entitled to support and this may be used to pressure him to divorce her.
      The Yaskil Avdei in his longer Teshuva in 2:8 which technically starts on this page(http://www.hebrewbooks.org/pdfpager.aspx?req=960&st=&pgnum=128) but he doesn't get down to the actual halakha for another three pages has major difficulty with this position because a Moredet is supposed to go out without her Ketubah, and as such how is it that the stipulations of the Ketubah could still be in effect. His final solution(like I said three pages on) is that she should not get anything for twelve months, as an inducement for her to try to work out the marriage with her husband, and then only after 12 mos when it can safely be said that there is no longer any hope for reconciliation, if the husband then does not want to give her a Get, he must begin supporting her. However for most these obligations are seen as min hatorah and part and parcel of the marriage(hence the Yaskil Avdei sees fit to withold support for 12mos) and thus not a corecion on their own. Rather we are forcing the man to uphold his obligations according to Torah, and since the Torah gives him a way to potur himself from those obligations, it is ultimately his decision whether he wants to maintain those obligations or not.
      I think you are going to have a much harder time saying that demonstrations are not corecive. Simply ask anyone at the Occupy Wall Street if they think that their actions are meant to be coercive. That's the point of demonstrations, to coerce pure and simple. Whether there is embarrassment or not. Though I would argue that embarassment is a part of it.
      So please if you have sources that make a claim that a coerced Get is acceptable, or that embarrassment and demonstrations do not amount to coercion then please bring them.

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    8. yeshaya you are making very little sense. We are concerned that if friedman gives a get to avoid ORA's public get campaign that this get would not be valid since it was only given to keep his good name (And his job). You are saying that it's not coercion because it does not work right away? Why would that matter?

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    9. The ONLY thing ORA is doing is letting the world know that Friedman is refusing to give his wife a Get and that refusal is causing needless untold suffering. How is that any different than publishing the seruv I posted above?

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    10. James who exactly is Friedman "refusing." Get Refusal, is, more or less, a technical and halakhic term. Most often applied by reliable Batei Din to husbands that have abandonned their wives and children.

      Furthermore you can only refuse something that you have a halakhic obligation for. If he was refusing to support his wife and more importantly if he was refusing to support his child, then you would actually have a basis for complaint.

      However, as no valid Beit Din has ordered him to give a Get, and as Rav Moshe Feinstein has written in a previously mentioned Teshuva, no B"D in the US has the ability to be constituted to hear his case without his consent to be tried by them, even the "Seruv" that has been issued has little actual power. The most that they can hope to have happen is for Friedman to show up and say the Beit Din has no power over him, and thus they would need to appoint a proper Beit Din through the halakhic means laid out in the Shulhan Arukh of Zeh Borair Ehad.

      So they are unable to show justification for their actions, other than they don't like that so long as Friedman is willing to support his wife and child, and he doesn't wish to remarry he has no obligation to give a Get.

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  7. The mezonos support a husband is halachicly obligated to provide his wife (moredes or not), he is only obligated to provide it in his home. He can say - room and board? Absolutely! There is an available bed right next to my bed. Food support? Absolutely! Our kitchen is fully stocked. Help yourself to as much food as you can eat. But what he is NOT obligated, is to provide his wife money for her to purchase these on her own to consume outside of his home.

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    1. That is not the way Rav Ovadia Yosef or the Ben Ish Hai have understood it(see previous post on Rav Ovadia Yosef). Rav Shternbuch doesn't protest against the husband needing to support the wife(or give her a Get) he protests against the wife using courts that award support beyond what is halakhicly reasonable.

      There is one view, that of the Yaskil Avdei and admittedly he brings sources, that states that you are correct, but then only for 12mos. After 12 mos, the husband had to either give a get or begin providing his wife's support.

      If you have a Teshuva for your view, some posek. Then please post it. Otherwise you are simply spouting your opinion.

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    2. Michael,

      Show me where either Rav Shternbuch, the Ben Ish Chai or even the Yaskil Avdei post-12 months say that the husband cannot offer all his support to his wife within the confines of his home and rather must support her (food, clothing, room and board, etc.) OUTSIDE his home for her to be able to reside outside his home.

      I dont believe you will find any such obligation in any of the teshuvos. Please post if you do.

      A wife is REQUIRED by halacha to reside in her husbands home (unless he allows otherwise.) If she refuses to live inside his home (without just halachic cause), she is a moredes. A husband is not obligated to support and allow the continuation of her rebellious conduct and activities.

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    3. Michael,

      Nowhere have any of those rabbonim said the husband must support his wife to live outside his home. She is obligated to live within his home. Her not doing so makes her a moredes.

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  8. 1. It is not clear that ORA's publicity is an "affliction" as Rav Moshe is using the term -- he only applies it to beatings, imprisonment, and taking money. Publicly revealing that he is a get refuser to motivate him to get it is far different from Rav Moshe's examples, which involve direct physical intervention or monetary loss. They are just publicly calling upon him to stop ruining her life, as any decent person should do, once other available options have proved fruitless. (R' Tzadok: if Occupy Wall Street is so coercive why hasn't it changed any substantive government policies? A demonstration is not a gun to someone's head).
    2. Rav Moshe did not believe in Daas Torah and said his opinions should only be given the weight they deserve based on their reasoning.
    3. Rav Moshe does not explain here why he makes a distinction between "afflictions" imposed on someone, which make a get coerced and thus valid, and other methods, such as bribes and helping the get refuser out of unrelated situations, which do not produce a invalid get. Since he does not explain the reasons for the distinction, we have no reason to rely on it (see #2).
    4. Rav Moshe does not define his terms or explain whether there are any exceptions to this general rule he describes.
    5. Nor does he address the situation in which a man has refused to give a get for years while the couple is living apart and there is clearly no chance for reconciliation.
    6. He certainly says nothing about ORA-style publicity and whether it is appropriate. Neither has any major posek as far as I know.

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    1. Publicly revealing that he is a get refuser to motivate him to get
      Here is where your argument breaks down. The pressure or lack thereof is applied solely for the purpose of getting a Get. Whereas the accepted halakha has been that you can only influence in two ways:
      1) Through an outside manner(such as support for his wife) in that you are not telling him to either divorce her or pay, but rather that he is obligated to support her however he can potur himself by means of a divorce.
      2) Positive incentive(i.e. offering a bribe), so that the divorce becomes his means of getting a positive reward.

      Also you cannot label a man(to my poor knowledge) a Get refuser when the wife is claiming Maos Ali. She walked out on him. Especially if no Beit Din has seen fit to order him to give a Get(which in at least one of ORA's Agunot is the case, namely Friedman).
      To claim him a refuser, means that he has some sort of obligation. He has no such obligation. He has an obligation min HaTorah to support his children, and from a Tekana of Chazal to support his wife.
      There is also an argument that a Beit Din can possibly invoke governmental support in enforcing governmental laws regarding the support of a wife...

      The burden of proof is on you to show that there is some sort of halakhically valid way to directly apply pressure of any sort to a husband to give a moredet a Get(Yes it would be different if the husband ran out on the wife).

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    2. I find it really bizarre that you describe publicly humiliating someone as simply providing information.

      what do you do with this gemora

      Bava Metzia(59a): Better it is for man to cohabit with a doubtful married woman1 rather than that he should publicly shame his neighbour. Whence do we know this? — From what Raba expounded, viz., What is meant by the verse, But in mine adversity they rejoiced and gathered themselves together... they did tear me, and ceased not?2 David exclaimed before the Holy One, blessed be He, ‘Sovereign of the Universe! Thou knowest full well that had they torn my flesh, my blood would not have poured forth to the earth.3 Moreover, when they are engaged in studying "Leprosies" and "Tents"4 they jeer at me, saying, "David! what is the death penalty of him who seduces a married woman?" I reply to them, "He is executed by strangulation, yet has he a portion in the world to come. But he who publicly puts his neighbour to shame has no portion in the world to come."’5

      Mar Zutra b. Tobiah said in Rab's name — others state, R. Hana6 b. Bizna said in the name of R. Simeon the pious — others again state, R. Johanan said on the authority of R. Simeon b. Yohai: Better had a man throw himself into a fiery furnace than publicly put his neighbour to shame. Whence do we know it? — From Tamar.7 For it is written, when she was brought forth, she sent to her father-in-law [etc].8

      Get Me'usa is a coerced get - the burden of proof that public humiliation is not invalid because of coercion is on Rav Shachter. Has he provided a justification for his support of their activities and more important has he declared what the parameters are? For example does he allow them to pressure an employer to fire an employee or to boycott a business? Does he allow torture?

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  9. There is a commandment to reprove one's fellow man, but one is supposed to do this without embarrassing the other person. But there were in fact many attempts to do just this. However, he refused to appear before the Beth Din of the Union of Orthodox Rabbis of the United States and Canada even after several attempts. They tried behind-the-scenes methods but he refused to even talk to them! What are they supposed to do after that?

    Perhaps this is an exception to the general rule against embarrassing someone. Since he refused to appear in private forums, the public forum is all that is left, and he brought it upon himself. The gemara does not address the issue of shaming with a get refuser, so it's not clear this is an absolute rule that should apply no matter what the circumstances are.

    Regardless, a get refuser is unique because he is tormenting her and ruining her life. It's much different than a case of say, shabbat desecration in which it's a sin between man and G-d. Let's say someone is planning on murdering someone, and when people tell him privately not to do it, he won't listen. Wouldn't then it be OK to resort to publicly calling upon him not to do it, even though that would embarrass him? And think of the embarrassment and anguish an agunah will feel, having no marital companionship and no more children, and think of the embarrassment and anguish the mamzerim she produces would experience. Surely considering all this, embarrassment should not be completely forbidden as a last-resort tool to motivate a get refuser.

    All this said, I am just an anonymous commenter, and admittedly not well-qualified to expound a comprehensive defense of ORA's tactics. I do hope that someone like Rav Shachter or Rav Kamenetsky will issue a teshuvah on this precise question. Will someone who knows them please ask them to? (I am also informed, though I have not verified, that many articles in journals of halacha have been published discussing this issue).

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    1. However, he refused to appear before the Beth Din of the Union of Orthodox Rabbis of the United States and Canada even after several attempts. They tried behind-the-scenes methods but he refused to even talk to them! What are they supposed to do after that?

      ====================
      The most they can say is that he refused to come to them - that is what the seruv is. They have no right or ability without hearing his side to declare him to be a get refuser and they have no justification for encouraging ORA to attack him for not giving a get. No beis din has determined that he owes his wife a get. If a crime has not been determined by beis din - how can you insist that he be punished?

      This an elementary point which for some reason you don't understand.

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    2. Well, the concept of default judgment (if you don't show up or respond to a lawsuit, you lose) is an established and often-applied doctrine of American law, though I admittedly don't know if it has a parallel in halacha
      (please forgive me for commenting here despite the fact that I am not as learned as you, and thank you for having patience with me). That said, it would have been nice if, drawing on whatever evidence they had access to, the Beit Din had declared him a get refuser and ordered him to give a get. Someone should ask them why they didn't do that. Even so, if they are encouraging ORA to publicly apply pressure on him, this implies that they have already decided that he must give the get (and the fact that he is required to give the get seemed obvious to R' Alderstein in his article on Cross-Currents).

      My point was that they tried to avoid publicly embarrassing him but he would not participate. So publicity was their only remaining option. I'm sure you would say it is OK to embarrass someone if it was necessary to prevent them from killing someone (as in my example above), so why isn't publicity justified (even if it may cause some embarrassment) in order to prevent a woman from living a normal life (getting married and having children)? Preventing someone from having children is almost like murder, and keeping someone from ever marrying -- given the importance of companionship in life -- is similarly heinous.

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    3. Yeshaya – Mr. Friedman is not preventing Ms. Epstein from leading a normal life, she is doing it to herself. http://daattorah.blogspot.com/2012/04/friedman-epstein-tamars-matrydom-r.html
      You don’t kidnap a child, prevent the father from seeing his own child and then claim to be a victim. Divorce is never pleasant but if you would like to read how a mature woman who isn’t only thinking about herself acts read this. http://daattorah.blogspot.com/2012/04/dana-melnik-its-not-all-about-get.html

      ORA does not care what the Bais Din says – In this case they were protesting outside Mr. Friedmans home 2 years before the “serev” was issued. The fact the ORA operates outside of Halacha has been well documented on this site.
      What is heinous is when a parent goes out of her way to make sure her daughter does not grow up with her father and people like you try to defend her. When you have your own child abducted from you, then come back and let us all know what is the proper way to act.

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  10. Yeshaya,

    The halakha for a person refusing to come before a Beit Din is as follows.
    C"M 11:1
    To summon (1) a litigant to Beis Din, Beis Din (2) sends a messenger to notify the person [1] on what day he should come. If the person does not come [2] he is summoned a second time. If again he does not come he is summoned a third time. If he does not answer that summons, they wait for him the whole
    day, and if he does not come they place him in niduy, effective on the following day. These words apply [3] to litigants who live in faraway, small villages, so although they sometimes come to town, they are again far away when they go home. By contrast, if a litigant is usually in town, only one day is set for his litigation. If he does not answer the summons and fails to come
    the entire day, they immediately place him in niduy and it goes into effect the next day.

    Rama If the Beis Din goes elsewhere, the litigant must go to them. If he does not do so [4], they place him into niduy (Beis Yosef).
    A messenger of Beis Din is believed to say, “He cursed (or insulted) me,” or “He cursed (or insulted) the Dayan,” or “He refused to come for judgment.” On the strength of his report, Beis Din imposes niduy on the litigant, [5] but no document can be written to declare and record this action until two witnesses testify to the litigant’s refusal. A messenger of Beis Din who
    reports such things as a lone witness [6] is not considered to have spoken Lashon Hara (slander).

    Rama: If someone (faced with a summons) says that directives of Beis Din or a chacham do not faze him or concern him, then even if he comes to Beis Din after receiving a summons, he is placed into niduy. Because he stated that his arrival was not due to the directive, he is considered to have behaved in a
    lawless fashion. See Yoreh Deah, Siman 334. If he says to the Beis Din, “I will not have my case judged by you,” and he wants to go before a different Beis Din, see further on, Siman 14. If someone is unable to comply with a summons, for he needs to travel afar, he is obligated to notify the Beis Din, provide his excuse and request an alternative date for his litigation. If he fails to do so he is placed in niduy, despite his inability to comply with the summons (Maharik, Shoresh 11). If someone accepts that two [7] will judge him (and he makes a kinyan – a formal act of commitment to that effect), when they summon him, if he does not come, he is placed into niduy [8] by a Beis Din of (at least) three (Beis Yosef in the name of a responsa of the Rashba Summoning a Plaintiff to Come to Beis Din


    to be continued

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  11. Let me say at the start that I am by no means giving a full treatment of the subject. However, if a person is summoned by a Beit Din, even one he does not respect, even if it is made up of average citizens, he must appear before it. If if that appearence is only to say I will not have my case tried by you which is entirely his right.
    However THE MOST that a B"D can do if he does not show up is issue a Seruv. That Seruv does not give anyone the right to pressure him to give a Get, or in any way acquiesce to the other litigant. The only thing that can be done is people may try to compel him to appear before the B"D.
    Calling him a spouse abuser ect, is simply disgusting behavior that they have NO RIGHT to do with a simple seruv for failure to appear. That the UOR even wrote on their Seruv that people should pressure Friedman to give his wife a Get is A MAJOR violation of halakha.
    Essentially the entire last paragraph of the Shtar Seruv is inexplicable according to halakha.
    The most you can do by this is force him into the B"D process. Ultimately it would devolve to a case of Zeh Borair.
    Now I know that someone is going to cite the case of the Chaim Berlin Rosh Yeshiva who refused to come before a B"D of Rav Moshe Feinstein. Halakha also covers that, it says,
    C"M 7:6
    If a person is summoned to judgment before a Dayan who is less than him (7), the Dayan cannot force him to come before him. Rather, they gather local men of Torah knowledge (8) [17] who look into the matter amongst themselves.
    I'm not trying to get into a fight over who was the bigger Gadol, however, it could be said that the Rosh Yeshiva of Chaim Berlin considered himself to be greater than Rav Moseh Feinstein, and thus for that reason he was within his halakhic right to refuse. I am however, fairly certain that Friedman cannot claim to be a greater Talmid Hakham than at least Rav Kamenetsky.

    Let me reiterate my points because I know someone will misunderstand me otherwise:
    1) Only a truly great Talmid Hakham has the right to refuse a hazamanah to a B"D.
    2) If a person refuses a Hazamanah to a B"D they have the right to place him in nidui and pressure him to appear before them
    3) The B"D does not have the right to pressure him to any outcome.
    4) The person does have the right to say that he will not be judged by the B"D that summoned him
    5) That right only goes into effect when he has appeared before them.

    In the end ORA's actions cannot be justified by Friedman's refusal to appear before a B"D.

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  12. Again Tzaddok completely misses the points in this case completely despite his long posting.
    1)This matter was in a bais din but Epstein refused to listen and therefor Friedman obtained a hetter from a rov to go to arko'oys so Epstein is the one who was mesarev le'din.
    2)A 2nd Bais Din has no validity or reshus to get involved once the matter is in the hands of the 1st bais din.
    3) A corrupt Bais Din involving belsky (see other posting) and Ral;bag both kalim she'bekalim regarding fittin is to be ignored, unless Tzadok has no problems and is endorsing corruption and going against the p'sak of rav elyashiv. similarly the involement of schlachter is a raglayim le'dovor that the siruv is fake.
    4) al pi halocho, in the times when bais din had a real koach, it is more than likely that epstein would have been jailed for abducting the child.

    have a good yom tov t'zadok. have you managed a posting yet without reference to the yaskil avdei?

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    Replies
    1. Once again Stan you demonstrate a bit of a reading problem, as I stated in the beginning
      Let me say at the start that I am by no means giving a full treatment of the subject. However, if a person is summoned by a Beit Din, even one he does not respect, even if it is made up of average citizens, he must appear before it. If if that appearence is only to say I will not have my case tried by you which is entirely his right.

      Then you go on to say.
      This matter was in a bais din but Epstein refused to listen and therefor Friedman obtained a hetter from a rov to go to arko'oys so Epstein is the one who was mesarev le'din.
      Now according to the Pro-Friedman blog that has been quoted here several times, the Baltimore B"D pulled out of the situation at this point.
      Also you are acting a bit hypocritical. You quote a Kol Kore that says no single Rav has the ability to give such a heter, and now you claim that such a heter is valid(when it suits you).

      A 2nd Bais Din has no validity or reshus to get involved once the matter is in the hands of the 1st bais din.
      This fails on two points.
      1) It would appear from all sources that the 1st B"D relinquished authority when this case was taken to secular court against halakha and the Kol Kore you were kind enough to point us all to.
      2) While it could possibly be argued that the 2nd Beit Din has no right to judge the case(though that isn't so clear and unless you have a source that says otherwise I think you are mistaken, though admittedly I would have to check). That still does not excuse him from needing to heed a summons by a B"D.
      A corrupt Bais Din involving belsky (see other posting) and Ral;bag both kalim she'bekalim regarding fittin is to be ignored, unless Tzadok has no problems and is endorsing corruption and going against the p'sak of rav elyashiv. similarly the involement of schlachter is a raglayim le'dovor that the siruv is fake. No they are not fit to be ignored, and you are stretching Rav Eliashiv's psak way beyond all semblance of what he actually wrote. He said that the Gittin of certain Batei Din were invalid, and went on, if I am think of the right Teshuva to say it was because the Dayyanim had the status of hedayyot, which are invalid to judge such matters. However again, that does not give one the right to ignore a summons to the Beit Din. You can show up the Rav Eliashiv's psak in your hand, and say they have no right to judge you or the case(as the Rama above stated) but you cannot ignore them.
      al pi halocho, in the times when bais din had a real koach, it is more than likely that epstein would have been jailed for abducting the child. A completely false and baseless statement.

      have you managed a posting yet without reference to the yaskil avdei? Several(including the two above). Mostly have focused on the Ben Ish Hai and Rav Ovadia Yosef.

      Delete
  13. Rav Tzadok, thank you for the sources and your analysis. However, what is your source for your argument that no one may pressure him to give the get without him appearing before the beit din? Look at the last two teshuvot by Rav Sternbuch posted on this blog. In both cases a man could not be obligated by a beit din to give a get, and yet he says people should pressure him to give the get by putting up posters saying he is refusing a get (basically equivalent to a demonstration). Rav Sternbuch doesn't say anything about the man needing to appear before a beit din first. Perhaps even without meeting him the beit din in the Friedman/Epstein matter knew enough of the case to know that there was no chance of reconciliation, allowing them to conclude he should give the get as an ethical matter (regardless of whether it is technically required halachically).

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    1. It is clear that a beis din must be involved - as Rav Sternbuch comments that the beis din has to evaulate carefully to make ascertain the type of pressure that is valid and appropriate.

      Rav Sternbuch explained to me that it is totally obvious that rabbonim need to be involved and very clear that any significant actions - whether in dealing with child abuse or other community activities. He said the world can't be hefker

      The only beis din that heard both sides was the Baltimore beis din and they did not recommend or approve any pressure on either of them nor did it conclude that Aharon needed to give a get

      Delete
    2. Thank you for the explanation. Rav Sternbuch says it's obvious rabbis need to be involved, but the rabbis of ORA and the Beth Din of the Union of Orthodox Rabbis of the United States and Canada were involved.

      When Friedman didn't appear before the beit din they could have placed him in nidui but instead all they did is say one can pressure him -- that would seem like a lesser "punishment."

      What is the source for saying a beit din must approve the pressure after hearing both sides of the story? He had his chance to give his side of the story and refused, and it's obvious there's no chance for reconciliation, so under Rav Sternbuch's criteria pressure would seem appropriate. Rav Sternbuch says batei din should not remain silent -- perhaps this applies even when someone refuses to appear in front of a beit din. If it didn't work this way, then anyone could keep their get refusal a secret if they just didn't show up when called to appear before a beit din.

      On that note, where is the Baltimore beit din for heaven's sake? Why is it remaining silent?

      Delete
    3. I'm going to keep repateing this question until it's answered. Is there any truth to ORA's claim:
      "Though other rabbinic courts had been involved previously, they all relinquished jurisdiction over the case."

      Delete
    4. However, what is your source for your argument that no one may pressure him to give the get without him appearing before the beit din? Look at the last two teshuvot by Rav Sternbuch posted on this blog. In both cases a man could not be obligated by a beit din

      A man cannot be obligated by a B"D to do anything until he has appeared before them.
      Furthermore very few if any Batei Din in the US have the right to insist that anyone submit to them for judgement. See Iggrot Moshe Choshen Mishpat 2:3. I'm sorry that I dont' have the time to type it in and I don't have access to a electronic version. Perhaps the Blog Owner could help with that. In essence it works like this, there are no universally accepted Batei Din(he says for sure not in New York), and I'm going to assume in most other cities as well. Furthermore since the UOR is by far not completely accepted, it definitely falls into this category. This means:
      1) They have NO RIGHT to judge friedman against his will.
      2) If they cannot judge him they CANNOT obligate him to do anything, especially give a get.
      3) Lacking the two above they have no halakhic ability to pressure him to give a Get by any means

      On that note, where is the Baltimore beit din for heaven's sake? Why is it remaining silent? That is an excellent question, why don't you write to them and ask and post their response here(or send the missive to the blog owner).

      Delete
    5. שו"ת אגרות משה חושן משפט חלק ב סימן ג

      בענין בעל דין שרוצה דווקא בזבל"א =בזה בורר לו אחד= ולא בב"ד קבוע.

      כ"ה אדר א' תשל"ו. לרב אחד.

      הנה ברור ופשוט שכל בע"ד יכול לומר שרוצה דוקא בזבל"א, וכמפורש בתוס' ורא"ש סנהדרין דף ה' ע"א דהא דמומחה לרבים תניא שדן אפילו יחידי שפירושו אפילו בעל כרחו וכמו כן למדו משם דסתם דיינים שדנין בשלשה הוא נמי שיכולין לדון אפילו בעל כרחם דהוא דוקא כשאינו רוצה לבא לב"ד כלל, אבל כשרוצה לבא לב"ד אבל רוצה בזבל"א =בזה בורר לו אחד= אין יכולין לכופו שילך לב"ד בלא זבל"א אף שהוא מומחה, ומסתבר דהוא אף לפני שלשה מומחין אין יכולין לכופו לדונו בעל כרחו דהא לרש"י מומחה לרבים שדן יחידי הוא למ"ד דא"צ שלשה מקרא דבצדק תשפוט וגם עליו כתבו התוס' שאינו יכול לדון בע"כ אלא כשלא רצה כלל לילך לב"ד אף שלדידיה הוי מומחה אחד כמו שלשה מומחין, ודוחק לומר שבתוס' שמשמע שאף במומחה אינו יכול לכופו אלא כשאינו רוצה לבא כלל לפני ב"ד הוא רק לשיטתייהו שיחיד מומחה שתניא שדן הוא רק מתקנתא דרבנן דלכן לא תיקנו אלא בכה"ג שאין רוצה כלל לילך לב"ד דהי"ל לפרושי זה. וגם הרא"ש הא מפרש הברייתא לתרוייהו למאן דלית ליה עירוב פרשיות הוא מדאורייתא ולמאן דאית ליה עירוב פרשיות הוא מדרבנן ולא הזכיר שיהיה חלוק בינייהו לענין בע"כ אף כשרוצה לילך לב"ד דזבל"א אלמא דליכא חלוק ביניהם לדינא דלתרוייהו הוא מה שמסיק דכשרוצה בזבל"א אין יכולין לכופו וא"כ גם תלתא מומחין אין יכולין לכופו אלא כשאינו רוצה לילך לב"ד כלל. אבל לדינא אינו נוגע זה דבזמננו ליכא דין מומחה שלכן לא שייך לדון כלל בזה כי כן איפסק גם בש"ע /חו"מ/ סימן ג' סעי' א'. ומשמע שליכא בזה חולק. ורק במומחה פליג הטור /חו"מ/ בסימן י"ג שהוא נגד אביו הרא"ש וכמעט כל הראשונים ועיי"ש בב"ח וצ"ע אבל בזמננו שליכא מומחה לכו"ע יכול לומר שרוצה לפני ב"ד דזבל"א.

      והא דכתב הרמ"א דאם דיינים קבועים בעיר לא יכול לומר לא אדון לפניהם אלא בזה בורר היה זה רק בעיירות שבמדינותינו שהיו מתמנים מהעיר שאף הרב האב"ד לבדו נמי היה יכול לכופו מאחר שקבלוהו אבל בנוא יארק ליכא דיינים קבועים שנתמנו מהעיר ובפרט שאיכא עוד אגודות וחבורות של רבנים שליכא אף מינוי מכל הרבנים שבעיר ולכן כשרוצה אחד מהן בזבל"א מוכרחין לילך בזבל"א דוקא.

      ידידו, משה פיינשטיין.

      Delete
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