Monday, May 28, 2012

Forced get produces Mamzerim

[Updated] Valued frequent contributor Rabbi Michael Tzadok keeps stating that a forced get is only posul derabbonon and thus does not produce mamzerim. He claims it is the view of the Beis Yosef and the Shulchan Aruch - he has produced no support for this claim. Rav Ovadia Yosef does claim this for the Beis Yosef but he is clearly a minority view as such a claim is not mentioned even once in Otzer Haposkim.

Clearly this view is in fact rejected by the poskim including  the following who assert that a forced get produces mamzerim:
 Rosh (44:6), Ramban (Kesubos 63b), Rabbeinu Tam, Magid Mishna (Ishus 14:8),  Rav Sternbuch, Yachin u'Voaz (1:124), Rashba, Radvaz, Rav Eliashiv [see previous discussion here]

I am not trying to embarrass or defeat Rabbi Tzadok in a debate. My point is simply that Rabbi Tzadok's didactic assertion that there is only a rabbinic prohibition - which I agree some such as Rav Ovadia Yosef state - doesn't accurately reflect the view of the majority - especially those poskim who state that forced gittin increases mamzerim. That language is not consistent with a rabbinic violation.

Furthermore - there is not a single citation in the Otzer Haposkim that claims that a forced get is rabbinic. This is rather odd as there are sections in it - such as what to do if a woman married after a forced get - where it would be relevant.  

The Shulchan Aruch describes a forced get which was not required as being posul - which could be understood as being only a rabbinic violation. However the Beis Shmuel says the Shulchan Aruch holds that it is prohibited doreissa.

שולחן ערוך אבן העזר הלכות גיטין סימן קלד סעיף ה

הא דאינו גט כשהוא אנוס, ה"מ כשמסר מודעא. אבל אם לא מסר מודעא, אם אנסוהו שלא כדין, פסול. וכדין, כגון שהוא חייב להוציא ואינו רוצה, ואנסוהו ב"ד עד שהוציא, הוי גט. ומצוה על כל ב"ד שבכל מקום ובכל זמן לכופו לגרש לבטל המודעא



בית שמואל סימן קלד ס"ק י
י פסול - משמע לכאורה דפסול מדרבנן וליתא אלא אפי' מדאורייתא פסול כמ"ש ברש"י והר"ן ובטור וכן משמע בסעיף ז' וכן אם אנסוהו עכו"ם כדין הגט בטל ולא כרמב"ם ספ"ב ועיין ב"י וב"ח ובחדושי רש"ך מיהו בש"ס איתא כדין בעכו"ם אתי לאחלופי בדין דישראל צ"ע אם קידש אחר אם חוששים לקדושיו אם גזרי' אטו בדין דישראל ט"ז

[[See Rav Ovadia Yosef in comments section who disagrees with the Beis Shmuel.]]


So we can conclude - those poskim who say a forced get produces mamzerim - either reject the view of the Shulchan Aruch or they agree with the Beis Shmuel that the Shulchan Aruch also holds the get is invalid on the doreissa level. Only if a posek says explicitly that a forced get is only rabbinic violation then we can assume that is what he means. However if there is a sofek - then obviously we must be machmir since it is a sofek regarding a Torah status.

 However if in fact the Shulchan Aruch holds that a forcing a get is only a rabbinic prohibition and therefore doesn't produce mamzerim -  a possible explanation of the gedolim ignoring this is the view of the Chazon Ish. He  clearly states that a posek decides what he thinks is right and the Shulchan Aruch is a fall back position if he doesn't know what to do. . If the gedolim say that we are to be concerned about mamzerim - then a forced get is understood as producing mamzerim.


Over Shavuos a friend mentioned that his rav - Rav Weber the rav of Kaminetz in Neve Yaakov- was told that some people were planning to publicly embarrass a husband during davening in order to pressure him to give a get. He stated that according to Rav Eliashiv if the husband gave a get the next day because of the embarrassment - the get  would be invalid and therefore they shouldn't do it. 

58 comments :

  1. Thank You Rav Daniel Eidensohn shlit"a for pointing this fact out.

    It has been getting very annoying to keep reading Michael Tzadok keep pushing his agenda, based upon his viewpoint of rejecting Rishonim, Achronim, and contemporary Gedolei Poskim that do not say what he would like halacha to be.

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  2. Another thing Michael Tzadok keeps doing is pushing his sefardi-only or sefardi-first views, ignoring the vast Ashkenazic Rishonim, Achronim, and Gedolei Poskim.

    I,on a previous thread about 2 weeks ago, proved to him that Ashkenazim are not only a majority of the Jews in Eretz Yisroel, but are the vast vast majority of frum Jews and all Jews internationally. By a 7 to 3 or 8 to 2 margin.

    Check the old thread for the details of the statistics I demonstrated after Michael Tzadok's laughable sephardic xenophobic comments. He never evenhad the courtesy of acknowledging I logically and statistically defeated his arguments. After I conclusively disproved him, he simply disappeared from responding to any comments.

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    1. No you made an assertion based on no facts. Israel- 42.5% of the world's Jewish population 7million Jews, 4.5 million Sephardim.

      You cannot account for your numbers.

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    2. You're a real joker, Michael. You continue to blithely ignore all facts not to your liking. So allow me to repost the relevant statistics:

      There are only 5.8 million Jews in all of Israel according to the Israel Central Bureau of Statistics (and that's without even getting into their overcounting with non-halachic Jews.) Of those 3 million are Ashkenazim and 1.8 million are Sephardim/Mizrachim according to government statistics. And a majority of worldwide Sephardim live in Israel. The overwhelmingly vast vast majority of Jews outside Israel are Ashkenazim. The only other countries with notable Sephardic populations are France with 300,000 Sephardim and the U.S. with 200,000. After that it is 50k in Argentina and 20k in Turkey. There is between 9-11.2 million worldwide Ashkenazim, with 5-6 million in the US alone.

      According to studies and research conducted by Daniel J. Elazar, Political Scientist and demographer at Bar Ilan University and founder of the Jerusalem Center for Public Affairs, in 1931 Ashkenazim accounted for 92% of the Jewish population and today account for 80%.

      Don't forget 50% of the Sephardim converted to Catholicism in the Spanish Inquisition. That means many many millions of descendants that woild have been Sephardic Jews today are now Catholic. Even if Dr. Elazar is off a bit, you surely get the idea of what kind of numbers we are dealing with.

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    3. Again your numbers don't add up. Israel has as of 2012 5.9 million Jews. They account for 42.5% of of the worlds Jewish population. That necessitates a world Jewish population of 13.8 million Jews. You want to claim a supposed 6million Ashkenazim in the US alone... 11million world wide. 850K Sephardim were forced out of there homes in 1948 alone(we're not even talking the later mass emigrations of Morroccans, Yeminites, Bulgarians ect... If just those Jews alone mainained the lowly birth rate of the United states 1.2% over the 64 years of Israel's history that should have yielded(just from those Sephardim alone no others) 1.8million. If you hold by the Israeli census beureau that says average Israeli population growth at 1.9%, Chareidi growth rate 1.7% Sephardi growth rate at 2.6% and Arabic growth at 3.8% you should have, just from those 850k 4.3million Sephardim.

      So your numbers simply do not add up. While I will give you that there has been large scale expatriation from Israel to the US to the point that LA sounds like Tel Aviv, but overall you are woefully misinformed about the numbers of Sephardim in the world.

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    4. The ENTIRE population of Israel is 7.8 million. Of which 75% is Jewish and 20% is Arab. Where do you get bogus numbers, Mike, of 7 million Israeli Jews? These numbers are easily verifiable from publicly available and published government statistics.

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    5. Which hat did you pull that 42.5% figure from?

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    6. Michael:

      I'm still waiting to hear out of which of your multiple hats you pulled out that 42.5% figure. I am glad you backed down from your previously erroneous claim of their being 7 million Jews in Israel and conceded to my figure of 5.8 million (you gave 5.9m, which would be the natural population growth since the Israel Bureau of Statistics released its figures.)

      Now how do you account for your arguing against Israel's Central Bureau of Statistics breakdown of the Ashkenazic and Sephardic population in Israel, as to the above percentages I earlier indicated based from the CBS? You simply cannot account for your wishful numbers based upon your personal prejudices and not from any official statistics.

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  3. the tzadok is clueless. Surprised it took you this long to find out. You can add the posek hador for ashkenazim and sefardim, rav elyashiv as well - unless you prefer the volvo man of shas.

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  4. Yachin u'Boaz 1:123 has nothing to do with Gittin. I think you mean 1:124.

    At the end of the first section, after writing that we do not follow the Rambam, the Yachin U'Boaz states:
    אלא שראיתי הרא׳׳ש ז׳׳ל כתב
    בתשובה 2 ו שאם נעשה מעשה כדברי הרמב׳׳ם ז׳׳ל שאין מוציאין אותה
    מתחת בעלה ואחרים הרבה חולקים עליו״ בזה ואומרים שאם נשאת
    בכפיה זו שתצא מבעלה.
    ואחד שנתבאר זה יש לי לבאר שומרת

    This is interesting for two reasons:
    First, I dont exactly read this as a strong conclusion that the resulting marriage produces mamzerim. The use of the word "ela" seems to contrast with the rest of the teshuva in which he is machmir. (I recognize that others may disagree with my reading)
    Second, it seems as if the opinion of the Rosh is not entirely clear.

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    1. Yachin uVoaz (1:124):[15th Century Algeria] You should know that there are two different types of moredes and they have different laws. There is a moredes who despises her husband and she asserts that he is disgusting to her. On the other hand there is a moredes who says she wants her husband but she wants to torment him In the case of ma'us alei the view of the Rambam is that the husband is forced to divorce her immediately and he learns this from a deduction from the gemora as the Rosh writes. The Rambam states in Hilchos Ishus (14:8) that if a wife refuses sexual relations that the husband is forced to give a a get since she is not like a prisoner who can be forced to have relations with someone she hates. However there has long been an outcry against the ruling of the Rambam by all the commentators and poskim such as Rabbein Tam, Ramban, Rosh, Rashba and many others. They agree concerning forcing the husband to divorce. Whoever forces the husband to divorce in accordance to the ruling of the Rambam increases mamzerim in the world. And they reject the view of the Rambam with clear proofs from the Talmud as the Rosh does. And many proofs are brought to refute and reject the words of the Rambam. And even the Magid Mishna who normally devotes himself in all places to justify the words of the Rambam and to firmly establish their validity with clear proofs - in this case he refutes the Rambam and goes into detail with proofs to contradict the Rambam's reasoning and to reject it. It is unnecessary to repeat them here. The halachic view that has become univeral is that one does not force the husband to give a get when she claim ma'us alei and we do not rely on the ruling of the Rambam nor others who agree with him in this matter. And furthermore that even if the halacha was in accord with the Rambam it would be correct to make a protective fence in this matter to prevent immorality amongst the woman because of the degradation of the contemporary generation. Because woman have become haughty and arrogant in their immorality. We are therefore concerned that a wife might have become interested in another man and she wants to disgard her husband by declaring he is disgusting to me (ma'us alei). If it became known that that would be sufficient to have her husband forced to give her a get then it would surely cause problems. But in fact the Rambam is not the halacha because of the proofs that the opponents of the Rambam bring [And even in Algeria where they always follow the Rambam there are three exceptions and this is one of them and not those who agree with the Rambam...]. However I saw in the Rosh who writes that if in fact the psak of the Rambam was followed and the woman was divorced by force and she remarried - we don't force her leave the second marriage. However many others disagree with the Rosh and they say that if she remarries after a forced get - she must leave the second marriage.

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    2. see previous discussion here
      http://daattorah.blogspot.com/2012/04/mamzerim-from-forced-get-in-maus-alei.html

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  5. "sefardi-only or sefardi-first views"
    and as a sefardi he should push ASKENAZI VIEWS?!?!!?!

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  6. Honestly Rabbi Eidensohn it is easy to post a list of Rishonim and try to embarrass someone. However, you yourself admitted and wrote here that the Rosh 43:6 says that they do not result in Mamzerim.  Did the Rosh forget what he wrote?  Please why don't you post the B"Y Eh"E 134, so that we can actually talk about what is truly a Get Meusa, and what is Get Meusa M'D'Rabbanan, and what is Get Meusa Sofek M'D'Rabbanan.  I don't have an electronic version.  I don't have time to type it in, and I see no point in continuing this discussion on Agunot until that full piece of the B"Y is dealt with.

    Second to that can you explain why a Get that is only possul sofek m'd'rabbanan can create a mamzer?

    Finally while we are on the topic of possul Gittin, why don't you explain to us the problems with Rav Gestetner's and Rav Abraham's Batei Din.  Would you also say that their Gitten result in mamzerim?

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    1. Not trying to embarrass anyone. My point is that your didactic assertion that there is only a rabbinic prohibition - which I agree some such as Rav Ovadia Yosef state - doesn't accurately reflect the clear fact that many others state - that forced gittin increases mamzerim. That language is not consistent with a rabbinic violation. It is not a question what the Beis Yosef held - it is obvious that many poskim are concerned about mamzerim - and not simply a violation of rabbinic decree.

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    2. If it is clear what the B"Y said, that leaves two questions:

      1) Where are the Teshuvot explaining how the B"Y erred in saying that it doesn't create mamzerim?

      2) Where does any of these Gedolim actually say that the children of a resulting remarriage are mamzerim?

      An amphibological statement of "causes mamazerim to increase in Israel" is amorphous and enigmatic at best.

      While I do and have readily admitted that there are some forms of force that result in a Get Meusa M'd'oraitta, we haven't talked about that. We have talked about the sorts of force that a B"D or the Jewish public uses, which the B"Y clearly states is (at best, with a Bitul Modaah) sofek ossur m'd'rabbanan.

      If you can produce a Teshuva which delineates why in this case we don't hold by the klal of sofek d'rabannan l'kula, I would be delighted to see it.

      However, I don't see in the language of any of the poskim that have been brought, that say a marriage that was dissolved on account of Rabbananut imprisoning someone will result in a Get Meusa that causes the resulting children to be mamzerim.

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    3. I agree there is a major question - but you are simply assuming an answer. This is a similar to the ancient dispute between Rambam and Ramban - do we presume a halacha is rabbinic unless stqated otherwise or it doreissa unless stated other wise.

      Why talk about mamzerim for a rabbinic program - but if they are mamzerim why is it acceptable bedieved. I offered a possible explanation in a pervious post - no need to repeat it here.

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    4. This is a similar to the ancient dispute between Rambam and Ramban - do we presume a halacha is rabbinic unless stqated otherwise or it doreissa unless stated other wise.
      When the B"Y and Sh"A state that it is Rabbinic, yes. If the primary codes of Jewish law hadn't said that it was Rabbinic I would make no argument, but you have to say that since they did state that it was Rabbinic, they made a ruling, one, that according to the piece from the Ohr L'Tzion that you quote that the this source is absolute truth on account of it being accepted by everyone.
      So now you say that others disagree, fine but then they have a chiyuv to prove themselves. This isn't an ambiguity, it is a halakhic certainity, that you admit was universally accepted, that you are now saying is no longer universally accepted, but that those who reject this prior(and apparently only) universally accepted truth don't need to prove it.

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    5. You are clearly and understandably arguing from the Sefardi perspective. When gedolim repeated state that a forced get produces mamzerim - that is the starting point. When contemporary gedolim repeat this concern - then I need to accept that they mean it. Until I find explicit statements of clarification that these statements are simply exaggerating the danger mamzerim - then I have to work on the assumption that they meant what they said.

      I don't have to justify why these gedolim said what they did. There is no question they said it. so until you can find gedolim saying to ignore this critical phrase and that it has no relevance I will accept that they fully meant it

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    6. In short you are saying that these Gedolim have the ability to go against a Universally accepted opinion(one that you admitted was so) without needing to provide reason.

      How is Rav Schachter different? So he goes against a universally accepted opinion on the status of Gadlut alone, why does he need to defend himself?

      I don't have to justify why these gedolim said what they did. There is no question they said it. so until you can find gedolim saying to ignore this critical phrase and that it has no relevance I will accept that they fully meant it

      What did they mean. Again saying "It causes an increase in mamzerim in the world." Is at best an amphibological statement. Yet we have a Rabbanut in Israel that forces husbands through imprisonment to divorce their wives. Can you provide a single Teshuva that says that should the wife remarry the resulting children will be mamzerim?

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    7. Rav Bentzion Abbah Shaul was a Sefardi posek - the Chazon Ish is a better model - he clearly states that a posek decides on what he thinks is right and the Shulchan Aruch is a fall back position if he doesn't know what to do.

      Bottom line in the non-Sefardic world your analysis is not relevant. If the gedolim say that we are to be concerned about mamzerim - then a forced get is understood as producing mamzerim.

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    8. the Chazon Ish is a better model - he clearly states that a posek decides on what he thinks is right and the Shulchan Aruch is a fall back position if he doesn't know what to do.

      Then quite honestly the entire argument you or your brother have made against Rav Schachter falls to pieces.

      What you have just said is that a posek is free from following the Sh"A if he thinks he knows better. I fail to see the difference between that and Conservative Judaism other than that you are more comfortable with it so long as it leans to Chumra instead of Kula.

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    9. When it comes to issues such as gittin or geirus which affect more than a local community - it is important that significant changes receive the approval of gedolie haposkim. As I have stated - if a number of gedolim state that Rav Schachter's innovations are needed for our times - I would have no problem with what he is doing. However to the contrary - I just have heard criticism by rabbonim - who are not willing to publicly denounce ORA and its innovations

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    10. the Chazon Ish is a better model - he clearly states that a posek decides on what he thinks is right and the Shulchan Aruch is a fall back position if he doesn't know what to do.

      Bottom line in the non-Sefardic world your analysis is not relevant. If the gedolim say that we are to be concerned about mamzerim - then a forced get is understood as producing mamzerim.


      The problem with this sort of analysis is that it only works so long as you(or whoever agrees with the Gadol). In this case you do, so there are not questions asked.

      However if we go back a few years to the EJF/Rabbi Leib Tropper affair, when Rav David Feinstein and Rav Shalom Yosef Eliashiv backed Tropper and said what he was doing was Kosher, that wasn't good enough. Suddenly we didn't trust the Gadol for some reason.

      That sort of reasoning is what leads to people saying things like what we see demonstrated here where people accuse Rav Kanievsky and Rav Nisim Karelitz of issuing bogus seruvim.

      What then is the threshold that needs to be crossed? IF what Rabbananut is doing is against Halakha, or at least according to the major Gedolim in E"Y it is against Halakha, why don't they speak out? Instead they sign on a Seruv based entirely on a Rabbanaut Descision?
      If what Rav Schachter is doing is against Halakha, again where is the outcry by the Gedolim, instead we are told that there are some who disagree but don't want to put their names to it...? That is just beyond bizarre.

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    11. Not sure which Tropper affair you are refering to Rav Dovid Feinstein was not a supporter of Tropper nor was Rav Eliashiv. If you are referring to Rav Reuven Feinstin then when he supported in writing and recording - contradicted what Tropper was doing. Similarly Rav Eliashiv's written teshuva clearly went against what Tropper was doing.

      So we had a case where the position of poskim was not in accord with what Tropper was doing. The big question was not the halachic view of gedolim but rather aside from the Bedatz while there was no outcry against Tropper.

      So the issue you are raising is very important but was not what we have been discussing. You are now raising the question of what determines when gedolim protest against certain halachic practices that they clearly have indicated are incorrect. Or alternative when do gedolim remain silent in the face of what they consider violations of the halacha.

      We know - thanks to Rav Kaminetsky that gedolim protest against issues they haven't investigated properly because askonim told them to. We know thanks to Tropper that there are also times when apparent halachic violations are ignored - especially when too many big people are involved.

      This doesn't alter what I have said regarding the fact that if a wide variety of gedolim of a wide ranger of time assert that a forced get produces mamzerim - it is to be taken at face value - unless it is clear they didn't mean it. In this case they clearly meant it.

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    12. RDE,

      The problem with your position, and the reliance on the Chazon Ish, is that his views on the authority of law are a huge chiddush that go against the vast majority of Sephardic and Ashkenazic poskim, namely, that the authority of the law rests on the gadlus of the posek. I find that view untenable.

      More importantly, I dont think you can find Rishonim who agree. The vast consensus is that the authority of the law rests on its acceptance by klal yisrael. That is why we had to say naaseh venishma. That, says the Rambam and others, is why the Bavli is the final authority, because it was accepted by all of Israel. So too, the Shulchan Aruch (with the Rema for ashkenazim) was accepted as law. Now, there are always exceptions to every rule and instances in which the SA is not the final word but we can discuss those later. The point is that the shulchan aruch as a fall back position for a rav who isnt sure (CI) is not exactly a well developed and received philosophy of law.

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    13. I am not relying on the Chazon Ish. I am simply noting that there are significant contemporary poskim including Rav Eliashiv and Rav Sternbuch who hold that active sanctions such as public demonstrations produce a get meusa and thus the problem of mamzerim. Consequently they can be in agreement with the Beis Yosef that the problem is only a rabbinic violation. I offered the possible reason for not accepting the beis yosef's view which might also be the Shulchan Aruch's view with the view of the Chazon Ish. The Chazon Ish is not the starting point nor is it the reason for the view that mamzerim will be produced.
      An alternative might simply be that they don't accept that the Shulchan Aruch holds that it is only a rabbinic violation.

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  7. This blog is clearly operated by an Ashkenazi Jew, and its reasonable to assume that the majority of its readers are Ashkenazi Anglo Jews.

    Tzadok is demonstrating his great arrogance by demanding that we show how "the B"Y erred", as if the psak of the greatest Ashkenazi poskim in the last five hundred years is completely irrelevant.

    Despite Tzadok's alleged rejection of ORA, Tzadok's erroneous halachic savaras only serve to advance the ORA - modern Orthodox agenda of Get Meusa, family destruction, and mesirah. Ashkenazi Jews would be committing a grave error to ignore our greatest poskim and buy into Tzadok's bogus halachic savaras.

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    1. Emes,

      Since when did the Yachin U'Boaz, Maggid Mishneh, Ramban and Rashba become the greatest ahskenazi poskim of the last five hundred years?

      The question is how to understand the Rosh. The BY understands it one way. On what basis do you disagree? On the basis of a (mis)citation on a blog? Please read my post above and tell me how that quote of the Yachin U'Boaz (which, btw, is not 1:123) supports RDE.

      He clearly states that the Rosh holds a woman remarried after a forced Get does NOT have to separate from her wife.

      RDE is WRONG in his citation of the Yachin U'Boaz and WRONG in understanding of the Yachin U"Boaz and WRONG in his understanding of the Rosh (at least according to the Yachin U'Boaz)

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  8. Thank G-d for Rabbi Tzadok...Being part of the rabbonim of klal yisroel, every time he states his POV, he saves another soul.

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  9. What would be the point of ruling a stringent view that the kids are mamzerim?

    The rabbonim have a choice. They can decide how to rule on this. If they want to state your left is your right and your right is your left, we are supposed to hold that.

    And there is obviousy a choice on this issue. First is the decision/choice whether or not to allow pressure put on one who withholds a get, and the second decision/choice, is whether or not a pressured get can in anyway be invalid, and the third decision, is, if it would be considered invalid, do we risk mamzerim.

    Which sounds very political, similar to the gerus issue to me. If we threaten that a gerus is not valid according to our charedi rules, then we just pulled the rug out from under those BD, because no one wants anyone to consider their gerus invalid.

    So if we decide that there is a threat of mamzerim if you don't give the get according to our charedi rules, then of course, we will do what you say, because G-d forbid we should produce mamzerim.

    But what is the truth? The truth is, with all due respect, the rabbonim dont have to 'go there', as we say. Just like they did not have to choose to focus on the issues of "moser" and "if it's not penetration, it's not molestation" regarding the pedophile problem, they do not have to take this stance on the get issue. There is what to hold for the very first decision, that one can put pressure to gain a get. Ask any frum jew, and they would know that of course one can pressure for a get. Now, when the MO are the ones using that halacha to help klal yisroel, the charedi stand to lose control over the get issue, and suddenly, this stringent view comes out of the woodwork. Is this emes??

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    1. You clearly hold the view that halacha is totally arbitrary and therefore the rabbis can posken anyway they want. And obviously according to you they should posken according to a liberal secular view point.

      You are clearly wrong - that is not what halacha is. That is simply Conservative Judaism.

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    2. No charedim want to take the stringent view upon stringent view. They know that the MO who are also orthodox, are taking the mainstream view, as do the sefardi charedim. And because the charedim want control over the gets, they will scare the public by convincing them that the stringencies are actual halacha.

      Don't you see how this is the same as the pedophile issue? How are you so blinded on this one, DT?

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    3. You are simply spinning a tale - without any justification. Please back up your accusations with some textual justification.

      It is interesting to note that contrary to your theory - Tamar Epstein's beis din was chareidi - Rav Schachter signed on the letter of seruv but did not sit on the beis din.

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    4. "You are clearly wrong - that is not what halacha is. That is simply Conservative Judaism."

      So if there is a family with 9 daughters and 1 son. The family is quite wealthy, the parents die.

      The son claims he is entitled to the whole heritage, since the other children are female and therefore not entitled to any part of it.

      How will the beith din decide? According to halacha or according to some fad that came into klal israel because of the neighbouring culture's practices (i.e. that all children inherit equal parts).

      What if the daughters go to secular court and secular court awards them each 1/10 of the heritage?

      Will this be considered gezel from their brother?

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    5. Ask 5 Rabbis, you'll get 5 different answers, that's why I think it is not wrong to say that halacha is not determined in many, many questions. So it could be said that experts of jewish law do not know what jewish law is.

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    6. Sorry - your statement is simply nonsense. The fact that every society has a court system where different rulings occur would mean according to you that there is no law system. The point is that there are broad areas of agreement and areas where the law is a matter of dispute.

      To get back to your original point see the following article

      http://www.jlaw.com/Articles/hool.pdf which states:

      Before going any further, it should be emphasised that any property taken by a daughter, against the will of her brothers, that is not due her according to the Halachah is regarded as stolen property. As we shall explain shortly, in the absence of a Halachically valid will, a man’s sons inherit all his estate, with the daughters receiving nothing. Even if the father wrote a legally valid will, if the Halacha does not recognise it the estate goes automatically to the sons.

      JLaw has an entire section on the laws of inheritance.

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    7. So if a man has true respect for the torah and its values, he will NOT write a will taking away part of the heritage from his son(s), am I right? A truly religious and g-dfearing man will not caving in to the depravity of surrounding cultures and leave his daughter(s) part of his estate, right?

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    8. PS: Koran is more libaral in this respect towards women: daughters inherit half of their brother's protion, rather than nothing.

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    9. not so - why do you think there are instructions from major talimdei chachomim as to how to write a will to insure that daughters are included?

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  10. I have no opinion on this subject (since I have little knowledge of it) and I don't support (or oppose) either side.

    I will note however that you, Rav DE, are allowing a lot of ad hominem attacks on Rav MT (arrogance, clueless, etc). Why are you approving these posts?

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    1. Perhaps wishful thinking that Stan's post would provide a greater depth of understanding of this issue. I did give Rabbi Tzadok the option of having all these offensive posts blocked. Stan's language only has served to discredit his position rather than degrade Rabbi Tzadok. I have blocked about half of Stan's comments.

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  11. Rereading the Acharonim on kefiyya, it is plausable, that kefiyya of a bes din, even if mistaken, is a psul Derabannan, but kefiyya of a person on the street, when not warranted, would make it a psul De'oraysa. It is meduyyak in their language, and would answer a lot of questions. It should be analyzed more. This post does not note the differentiation.

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    1. It is possible to understand the Rambam that way. However the Otzer Haposkim does not mention such a possibility nor have I seen the poskim in general discuss this. Which implies that it is not accepted.

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    2. רמב"ם גירושין ב, כ

      לא היה הדין נותן שכופין אותו לגרש וטעו בית דין של ישראל או שהיו הדיוטות ואנסוהו עד שגירש הרי זה גט פסול, הואיל וישראל אנסוהו יגמור ויגרש, ואם הגוים אנסוהו לגרש שלא כדין אינו גט, אף על פי שאמר בגוים רוצה אני ואמר לישראל כתבו וחתמו הואיל ואין הדין מחייבו להוציא והגוים אנסוהו אינו גט.

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    3. שולחן ערוך אבן העזר הלכות גיטין סימן קלד סעיף ה

      הא דאינו גט כשהוא אנוס, ה"מ כשמסר מודעא. אבל אם לא מסר מודעא, אם אנסוהו שלא כדין, פסול. וכדין, כגון שהוא חייב להוציא ואינו רוצה, ואנסוהו ב"ד עד שהוציא, הוי גט. ומצוה על כל ב"ד שבכל מקום ובכל זמן לכופו לגרש לבטל המודעא.

      However note the Beis Shmuel objection to reading the word posul as only posul derabbon

      בית שמואל סימן קלד ס"ק י

      י פסול - משמע לכאורה דפסול מדרבנן וליתא אלא אפי' מדאורייתא פסול כמ"ש ברש"י והר"ן ובטור וכן משמע בסעיף ז' וכן אם אנסוהו עכו"ם כדין הגט בטל ולא כרמב"ם ספ"ב ועיין ב"י וב"ח ובחדושי רש"ך מיהו בש"ס איתא כדין בעכו"ם אתי לאחלופי בדין דישראל צ"ע אם קידש אחר אם חוששים לקדושיו אם גזרי' אטו בדין דישראל ט"ז:

      However Rav Ovadia Yosef says

      שו"ת יביע אומר חלק ו - אבן העזר סימן י ד"ה (יא) מסקנא

      (יא) מסקנא דדינא שאם לא יאות המשיב לגרשה מרצונו הטוב בגט כריתות כדמו"י, יש לכוף אותו לתת לה גט פיטורין ולשחררה מעגינותה. ומ"מ משום חומר איסור ערוה החמורה יש לנהוג לאחר כפיה עד שיאמר רוצה אני, לפייסו ברצי כסף, כפי שהצהירה התובעת שמוכנה לשלם לו חמש מאות ל"י, בכדי שיהיה בגדר תליוה וזבין זביניה זביני, לדעת כמה פוסקים, וכמ"ש בשו"ת חוט המשולש שבסו"ס התשב"ץ (סי' לה): שמאחר שנתרצה לבסוף ברצי כסף לגרשה בגט, הוי גיטו גט כשר, וכ"כ רשב"ם והעיטור שגט שיש בו מעות למגרש הרי הוא כמכר, וכ"כ קצת מרבותינו הצרפתים. וישרה סברא זו בעיני האחרונים. והריב"ש ז"ל עשה בה מעשה. וא"ז הרשב"ץ כתב לחכמי איטליא שלא מצא לשום פוסק שיחלוק ע"ז, חזי מאן גברא רבה דקמסהיד עלה, ולכן אם לא מסר מודעה אפי' היה הגט מתוך אונס כשר, דאגב זוזי גמר ומקנה. עכ"ל. וכן ראיתי באור זרוע הגדול ח"א (סי' תשנד דק"י רע"א) בתשו' רבינו ישעיה הא', שכ', שכל שנתרצה ליתן גט אפי' ע"י עישוי גיטו גט, שיש כאן מצוה לשמוע דברי חכמים תקנת ב"ד הגדול וטענה גדולה שיש לה. ועוד שהרי יש כאן נתינת ממון ואמרי' בחזקת הבתים תליוה וזבין זביניה זביני דאגב זוזי גמר ומקנה. וה"נ לגבי גט כזה שהוא כשר ויכולה להנשא בו לכתחלה. ע"ש. (וכן הוא בתשובות הרי"ד סי' כב דקכ"ז ע"ב). וכן מוכח בתשו' הרשב"א שהובאה בב"י אה"ע (סי' קלד) שכל שקיבל כסף ממש גמר ומגרש. ע"ש. (וע"ע בשו"ת מהר"ח אור זרוע סי' קכו). אמנם ראיתי להמאירי (ב"ב מח עמוד רסט) שכ', שלא אמרו כן אלא במכר שנתינת המעות תמורתו ראויה בו אצל כל בני אדם, וזה שאנסוהו ונתנו לו מעות חזר לו לנוהג העולם וגמר והקנה, אבל גט שקיבל עליו מעות הואיל ונאנס אין אומרים שמפני המעות גמר והקנה. ומעתה גט מעושה אין כסף מטהרו. וכן נ"ל ברור. ואף לגדולי הדורות שלפנינו מצאתיה כן. ע"כ. וע' בשו"ת עבודת הגרשוני (ס"ס לה) שכ' בפשיטות שכל שיש שם מתן מעות למגרש, גמר ומגרש. ע"ש. וע"ע בס' בית מאיר (ס"ס קלד) ובפתחי תשובה שם. ובשו"ת בית אפרים (חאה"ע סי' קכה) ד"ה ולענין. ובשו"ת דברי מרדכי גלאנטי (דף קמה סע"א). ואכמ"ל. מ"מ כיון שמצאנו כמה פוסקים שסוברים להקל בזה. והריב"ש עשה מעשה רב להקל בכה"ג. שפיר סמכינן עלייהו בנ"ד שבלא"ה יש כמה צדדים וצדי צדדים לכופו ליתן גט. [ומכ"ש שלד' הרמב"ם (ספ"ב מה' גירושין) גט המעושה שלא כדין בישראל אין הגט פסול אלא מדרבנן. וכן דעת מרן הש"ע (סי' קלד ס"ז). וכ"כ הכנה"ג (שם הגב"י אות כא) בשם המהרשד"ם (חאה"ע סי' סג). ע"ש. ומ"ש הבית שמואל (שם סק"י). אינו מוכרח, וכמ"ש בשו"ת צמח צדק מליבאוויטש (חאה"ע סי' רסב אות ט). ובמקום אחר הארכתי בזה בס"ד. וא"כ בדרבנן בודאי דשפיר סמכינן על כל הפוסקים הנ"ל להקל]. והנלע"ד כתבתי. עובדיה יוסף ס"ט

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  12. Rambam clearly states that anytime he says passul he means Miderabbanan.
    Generally speaking,the earlier Acharonim, did not feel bound to Shulchan Aruch's personal meaning. Rather, they viewed it as a summary of the major shittos. Hence there are numerous places that Rema, Samah, Shach, and Bash, will explain Shulchan Aruch not in accordance with Beis Yosef. Many of Rema's "vedavkas" are actually disagreeing with R Karo, not explaining R Karo.
    If Rambam clearly states that passul means Miderabbanan, then the bash is arguing with him, not clarifying.

    At the end of your quote, ROY mentions this Bash (he never misses anything!) and points out that Kenesses Haedola, Maharshdam, and Tzemach Tzedek argue with Bash.

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  13. Batmelech: it is not wrong to say that halacha is not determined in many, many questions.
    Daas Torah: Sorry - your statement is simply nonsense. The fact that every society has a court system where different rulings occur would mean according to you that there is no law system.
    Me: when for every rule a rabbi can find a counter rule then bat melech is right. Much of what passes for halacha is a illusion of law to get people to submit to whims of rabbis. This however does not mean that halacha is in fact not determined. It is just that rabbis have no idea what it is. Personally I think halacha is determined but it is simply hard to know what it is.

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    1. nope you are simple not paying attention to the issues

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  14. Socratic ignorance states that there are absolute values but we don't know what they are. It could be this applies to Jewish law. The most rigorous thinkers in Halacha were Maimonides and the authors of Tosphot. So it seems fair to me to in general determine halacha between these two poles.

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    1. Socrates has nothing to do with halacha nor does your rule

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  15. I think that halacha could be streched to just about anything, from a regime akin to taleban afghanistan or present-day iran (where women are allowed to drive, while some hassidic sects, like saudi-arabia, bans driving for women) to a pretty egaletarian, democratic society.

    However, I suppose that the odds it would come down to iranian-style theocracy are greater than true democracy, if hareidim were to gain power in any state/nation/society.

    Of course, we should not forget the re-introduction of death penalty for crimes like adultery and heresy (thereby closing the loophole to force a get by adultery).

    I think, Daas Torah, that your publications (and claims that they still constitue valid halacha today) contributes a lot to make torah disgusting to several classes of people (like women).

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    1. It is unfortunate that many people find or would find many halachas disgusting. But the owner of this website did not make these laws - THE CREATOR did.
      for example how many of you can accept the concept of a jew being sold as a slave. and then he is forced to live with a non jewish slave and the children belong to the master. or can you accept buying a non jew as a slave - selling him - his children are yours also - abe lincoln where are you? - but thats halacha. so we don't like it - or understand it - it's still torah Mi'sinai.
      so too if a wife gets up one morning and says i want out - i hate him - its just too bad.
      so too -we must give 10 % of our earnings to charity - but i earned it - it's mine - why do i have to give it away - tuff - its torah Mi'sinai.
      or that woman can't sing in public (unlike ora by the way - when they send woman to a rally, they all sing) or woman must cover their elbows and knees - but men don't
      - or can't wear pants - or must cover their hair -
      or men must get up early on their day off to daven before the zman...
      and as was mentioned in the previous comment- death penalty for adultery for and with a married woman - but not for a single woman with a married man - and yes for violating shabbos
      noboby said life is fair or easy - for that matter
      life is full of obligations and responsabilities -- many rules and punishments imposed by the creator.

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    2. So how come the creator decided to suspend all of this for 2000 years?

      Rambam says that in the 3. beith ha mikdash, there will be no animal sacrifice, although this was the center of activity of the previous two. Is he changing torah mi sinai????

      There is so much room within torah to accomodate everything and everyone that, in practice, every generation, every stripe of judaism, picks and chooses what suits them best.

      Picking and choosing is by no means the privilege of reform and conservative judaism, it is prevelant everywhere...

      From where did we get that women should wear skirts and dresses that reach under the knee, but not all the way to the ground??? Sarah Imeinu certainly did not dress that way, I suppose she looked more or less like those beduin women you see in israel!!! (But of course, Moshe rabbeini had a streiml made of exclusive, non-kosher, beaver fur... or was it fox???)

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  16. I still dont see how you read the Yachin U'Boaz as anything other than understanding the Rosh differently. I read your English translation (didnt need it, though). How do you read the last line in which he states that according to the Rosh, a woman who marries need not separate from her husband?

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    1. I already wrote a post on the Rosh suggesting an answer to your question.

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  17. tzadok's inventions:

    Israeli Census Stats Released
    Palestinians more impoverished; ultra-Orthodox more hungry
    By Marissa Brostoff|September 25, 2009 4:00 PM|4comments
    PrintEmail

    Israel’s Central Bureau of Statistics released its annual report last week, in time for Rosh Hashanah. This week, in advance of the International Day for the Eradication of Poverty, the Bureau published a report comparing poverty statistics from 2003 with those from 2007. Separately, the International Peace Institute came out this week with new statistics on Palestinian public opinion on a number of political issues. Here are some highlights.

    Number of people who live in Israel: 7,465,500
    Percentage of those people who are Jewish: 75.5

    works out to 5,636,453 jews in israel. the tzadok invents a number equal to 7 million.

    the guy is an absolute joke. i would not believe him with the time of day.

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