Wednesday, May 2, 2012

Ma'us Alei: Forced only if disgusting

Husband is not forced in claim of Ma'us alei unless clearly disgusting
שו"ת יביע אומר חלק ג - אבן העזר סימן יח

(ב) איברא דחזי הוית להמאירי (כתובות סג: עמוד רסח), שכ', ואף לשיטת גדולי המחברים (הרמב"ם), פירשו רבותי בדבריהם, דדוקא בשטוענת כך מן הדין, ר"ל שאף אנו מכירים בו שהוא ראוי להמאס מחמת רוב פחיתותו והפסד עניניו אם במדות אם בשאר דברים מכוערים, והדברים מוכיחים שלא בסיבת נתינת עין באחר הוא, הא כל שטוענת כן מחמת עקשות וגאוה והסתלסלות יתר אין שומעים לה. עכ"ל. גם בשו"ת מהרימ"ט ח"ב (חאה"ע סי' מ) כ', ואם היינו באים לדון דינא דמאיס עלי כד' הרמב"ם, היה צריך לחקור הדבר היטב שיהא ברור וניכר לנו שא"א לה להבעל ברצונה לו שהוא מאוס עליה, וצריכה לתת אמתלא לדבריה בכדי להאמינה. וכמ"ש הרא"ש והגמ"י בשם מהר"ם. ואף על פי שהרשב"א בתשו' המיוחסות (סי' קלח) כ' שא"צ לתת טעם ואמתלא לדבריה, זהו שיכולה לומר שהוא מאוס אף על פי שלא תתן טעם, ומ"מ אנו צריכים להכיר ולבחון זה מדבריה שכן הוא האמת שהוא מאוס בעיניה. וכמ"ש הרשב"א בתשו' שהובאה בב"י (סי' עז). עכת"ד. נמצא דאיכא פלוגתא בד' הרמב"ם בזה. [ועמש"כ להלן אות טו דמוכח להדיא מדברי מהרי"בל בתשו' ח"ג (סי' יג), שא"צ שום אמתלא לטענת מאיס עלי בכדי לכופו לגרש. ע"ש]. ומ"מ ע"פ סיום דברי מהרימ"ט נראה שיש הפרש בין אומדנא קלה כמות שהיא הנראית רק לעיני הדיינים, לבין אמתלא ברורה ונכוחה, אשר תבענה שפתותיה של האשה. וכמו שסיים עוד מהרימ"ט שם, ועוד שהרשב"א שם כ' דבאומרת מאיס עלי ואינה חפצה בו ולא בכתובתו, כיון שרוצה לצאת בלא כתובה ודאי נראה מדבריה שדעתה אונסה. ע"כ. ופשוט שאין זו חשובה אמתלא ברורה. ובזה מיושבים דברי הרשב"א שלא יסתור את עצמו בתשובותיו הנ"ל. וכבר הנתיבות משפט שם (דף ריז ע"ב) עמד בסתירת תשו' הרשב"א שבב"י (סי' עז) לתשובתו שבמיוחסות (סי' קלח) הנ"ל. והניח בקושיא. ומתוך דברי מהרימ"ט הנ"ל תתיישב סתירה זו על נכון, שאף שהיא עצמה א"צ לתת טעם לדבריה, מ"מ צריכים אנו להבחין ולהכיר שדבריה נכונים. וכ"כ ליישב קושיא זו בשו"ת פרי צדיק (סי' ב). וע"ע בשו"ת ויאמר יצחק (סי' קכו). ובשו"ת שערי עזרה (סי' ז). ובשו"ת וזאת ליהודה (סי' יא). ע"ש. ועכ"פ אמת שדעת הרשב"א היא דאין לכופו לגרש גם באמתלא נכונה, ומ"מ הרשב"ש מצרף בזה דעת הרמב"ם עם קצת מהחולקים עליו שבזה הושוו לכפותו לגרשה, וכמו שסיים אח"כ ע"פ דברי מהר"ם. ומכ"ש באמתלא ברורה כזו דמוקמינן לה בחזקת שלא נתרצית לו מעולם, וסופה מוכיח על תחלתה. ובזה א"ש גם יתר קושיות הנתיבות משפט הנ"ל.

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16 comments :

  1. DaveMay 2, 2012 at 11:52 PM

    Translation please.

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    1. Daas TorahMay 3, 2012 at 12:14 AM

      It is in the title. Rav Yosef brings a number of sources which says that in the case of ma'us alei it is not enough for the woman saying she can't stand him. If it does seem that there is genuine reason for finding him repulsive then not even the Rambam who says the wife is not like a slave - would not force the husband to give a get.

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    2. yyMay 3, 2012 at 1:00 AM

      sof-sof.

      Was it really necessary for so much rancor and backbiting and research and re-research to come to the common sense that once two members of Am HaKadosh are bonded k'dat Moshe v'Yisroel, which revolves around him GIVING to her a ring and signing a Ketuba, all of which causes a spiritual acquisition over her neshama, that the only way to genuinely UNdo those bonds is by his RE-giving her a way out?

      The husband obviously needs to be convinced that there is no longer a kesher between them. That doesn't happen because she gets tired or desperate or ticked off... and certainly not if there's a possibility that she's just looking for some greener grass. Their orginal neshama-bonds must be de-magnitized, so to speak.

      That requires some objectivity.

      The previous post by R' Klein also shines through a little emes l'emito when he stressed the absurd destruction that is virtually assured in a questionable divorce. So how can so many people who are trying to free the quasi-agunot supposedly out of deep concerns for alleviating their misery not at least EQUALLY DISRAUGHT at the thought of making what the Gemmorrah says "the mizbeach cry" over avoidable divorces??

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  2. Dovid EidensohnMay 3, 2012 at 2:53 AM

    The from language of Rambam and this teshuva it would seem that MOUS OLEI is only when the woman cannot have intimacy with the husband. But if she can have intimacy, but hates him for things he did or didn't do, this is different.
    Also, it is important to factor in children into the equation. The gemora in a few places says that someone with children should not divorce. So why is ORA terrorizing husbands who have children?

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    1. Rabbi Michael TzadokMay 3, 2012 at 8:45 AM

      The from language of Rambam and this teshuva it would seem that MOUS OLEI is only when the woman cannot have intimacy with the husband.
      Actually that is a bit of a leap of logic. Especially as he says that the husbands bad middot could be a sufficient cause. Furthermore he isn't talking about allowing a divorce, he is talking about forcing the husband to give a Get.

      The gemora in a few places says that someone with children should not divorce.
      That's nice. Do you have a source in the poskim that says that? Rav Ovadia doesn't make an issue of that in any of his Teshuvot. So you want to say that because something is mentioned in the gemarra, but none of the pokim mention it, we should psak that way? Since when has that been the method of deriving at halakha. Unless you have a majority of Rishonim, Acharonim and Poskim saying something, you can't simply say the gemarra says it, and so we should do it. The gemarra also says that one should eat rotten fish as it is good for the health, do you eat rotten fish? Moving on...

      So why is ORA terrorizing husbands who have children?
      Are you saying that ORA's actions would be halakhically justified in the absence of children?
      See I thought their actions were not justified in general... so children or not, they are wrong.
      As far as factoring in children... well there you would have to prove that there is a halakic chiyuv to prevent a divorce on account of children.

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  3. Torah, not Daas Torah!May 3, 2012 at 12:15 PM

    I think this whole matter is a clear reflection of hashgachah pratis, the way a divorce/agunah controversy turned into a war against outstanding non-charedi Torah scholars.

    There is a vicious evil in the today's world of Torah, and it is an ideology called "Daas Torah". Daas Torah is all about *who* is a "gadol" rather than about honestly what considering what Torah scholars say, no matter who they are (and whether or not we like to call them "gedolim").

    "Daas Torah" is really about saying that the "gedolim" I know, and the approach I have learned from them, is ultimately the only one that is right and possible in practice. I may pay lip service to considering other approaches and debate them (sometimes in respectful language and sometimes not), but ultimately only my Torah approach is the valid one.

    But "Daas Torah" is all about deciding *who* gets to participate in the Torah conversation and in the decision making. "Daas Torah" is all about deciding *which* communities may decide who the "gedolim" are. Therefore, Daas Torah contradicts the ethos of the mishnah in Sanhedrin, which says that in serious manners conversation always began from the "tzad", which the youngest and least experienced, lest his ideas be silenced by those thought to be the greater scholars (but who may actually be wrong).

    In a nutshell: "Daas Torah" is all about disgracing and delegitimizing Torah scholars in the name of kavod ha-Torah!

    Daas Torah is a truly brilliant and subversive tool created by the yetzer ha-ra and aimed precisely at Torah scholars and at Jews who strive to be pious.

    Rabbi Daniel Eidensohn wanted to show that a "Daas Torah" approach can be responsible and respectable. Hence the title of his books and his blogs. He gained a reputation as a fair minded writer, even a brave one at times. But all to naught. Because anyone who truly believes in "Daas Torah" must ultimately fall into the trap of hatred and delegitimization. It doesn't matter whether that person is Rav Hershel Schachter shlit"a or Rav Elyashiv shlit"a, or whether they are publishing scholars like Rav Yitzchak Alderstein or Rav Daniel Eidensohn. They've all fallen into the trap despite the very best of intentions.

    The only true worlds of Torah left today are the few beautiful communities and institutions that do not ever speak of "Daas Torah" and who seek the truth without hatred. Who truly listen and speak the truth respectfully as they see it (despite knowing how the "Daas Torah" side will respond with hate and fury). Who quote Shammai with deep respect (regardless of any disrespect shown) before stating their own responses.

    Please, fellow Jews: Leave behind the evil world of Daas Torah, and return to the Torah!

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    1. Daas TorahMay 3, 2012 at 1:09 PM

      With all your verbiage - you missed the issue. We are not talking about Daas Torah - we are talking about an apparent innovation in halacha in the area of divorce. I voiced the same type of criticism when Tropper was innovating in the area of conversion. We are simply pointing out that there is no clear justification in the entire halachic literature for this innovation. No one here has said that Rav Schachter isn't a major talmid chachom and posek. Even Rav Moshe Feinstein was faced with criticism when he permitted artificial insemination.

      In fact I don't actually remember anyone in this discussion quoting Daas Torah in the sense that you are concerned with.

      Actually if anything Rav Schachter views on ORA are being presented as Daas Torah that is beyond criticism. It is simply be repeated over and over again- ORA's demonstration etc are nothing more that harchoksas of Rabbeinu Tam.

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    2. DovyMay 3, 2012 at 7:21 PM

      Your words really resonated with me. Thank you for posting them.

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  4. yyMay 3, 2012 at 1:12 PM

    >"Daas Torah" is all about disgracing and delegitimizing Torah scholars in the name of kavod ha-Torah! (...)The only true worlds of Torah left today are the few beautiful communities and institutions that do not ever speak of "Daas Torah" and who seek the truth without hatred.

    Powerful thoughts. But you betray your thesis when you say "the ONLY true... who seek truth without hatred."

    I'm sorry, but your own inclinations to hate come through in that. There is not an ONLY truth, period. There are 70 ponim and we definately have a long way to go til embracing that concept. The Who-is-a-Gadol culture is certainly not doing so. But neither is the bashing of those who believe Daas Torah, that they have an obligation to accept Torah guidance from the greatest Torah authority that can discern.

    The problem is the kina. We need to stop discrediting others. R' Yochonan's 5 talmidim had VERY different approaches but even after the Rebbe said he inclines to see R' Elazar's position as most inclusive, we don't find that the other's made him their Rebbe!

    That's Darkheiah Darkei Shalom.

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  5. Torah, not Daas Torah!May 3, 2012 at 6:11 PM

    "We are not talking about Daas Torah - we are talking about an apparent innovation in halacha in the area of divorce. I voiced the same type of criticism when Tropper was innovating in the area of conversion."

    Sorry, but to label the opposing opinion an "innovation" is typical of the Daas Torah style. Amitah shel Torah is what is important, whether it is an "innovation" or not.

    Also, to even compare criticism of Tropper with criticism of people of the character of Rabbis Broyde and Schachter is a terrible chutzpah!

    "We are simply pointing out that there is no clear justification in the entire halachic literature for this innovation."

    Sorry, but to say that there is "no justification in the entire halachic literature" is also typical of the Daas Torah style. First of all, that is almost never truly the case. Secondly, while I don't believe that one must accept the view of a major talmid chakham just because he is a major talmid chakham, nevertheless when you have a person who is beyond argument as a world class Torah scholar (and by that I include Rav Broyde and not just Rav Schachter), to make the argument in those terms is simply ludicrous! Thirdly, in this case it is objectively clear that there is a great deal of justification in the halakhic literature, at least to anyone who reads both sides with an open mind. The problem here has really nothing to do with reading the mekorot, but rather the lens you read them through.

    I do not in any way believe that the opinions of Rav Schachter are beyond criticism. During my time at YU, in fact, I made a very conscious and somewhat painful decision that he would *not* be my rav, because I am uncomfortable with his judgement in hashkafic matters. However, I would dream of belittling his judgement (including in hashkafic matters)! And since there is no doubt that he is one of the very finest posekim in the world today, to address any issue the way this blog has done is simply ludicrous. Would you ever dare criticize Rav Elyashiv like that, no matter what he said on any issue?

    YY, I never said there is an ONLY truth. What I said is that Torah can flourish in positive ways only inside communities that are able to listen with respect to multiple Torah truths (70 of them I guess :-)

    I firmly believe, from half a lifetime of experience, that to say that people "have an obligation to accept Torah guidance from the greatest Torah authority they can discern" is actually a form of extraordinary ga'avah: Why do you think that you and your chosen community are able to determine whom the greatest Torah authority is? Why do you feel that his talmidim must accept his judgement (and does he himself feel that way)? And how dare you assert his authority over others? These attitudes are a distortion of basic derekh eretz, which then has terrible ramifications for Torah itself.

    Now, I am perfectly willing to listen to those who nonetheless think that way, and to learn as much Torah as I can from them too, despite how I feel and despite knowing how they feel about me. But are they similarly willing to learn from myself and from my world of Torah? From this blog it seems that the answer is no.

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    1. Daas TorahMay 3, 2012 at 6:33 PM

      I don't buy your pronouncements as if you are the only one possessing Daas Torah and your official rules as to what is permitted and what isn't. I would suggest you come back to earth.

      Contrary to your assertion I don't think Rav Eliashiv is beyond question - that is the halachic process. We have no Sanhedrin.

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    2. Torah, not Daas Torah!May 3, 2012 at 7:12 PM

      Thank God I don't possess Daas Torah... :-)

      I know quite well that Rav Elyashiv is not beyond question for you. But will we ever see a phrase like "no clear justification in the entire halachic literature" regarding him?

      Or something along the lines of "filled with errors, which I display here... invented a new Torah... part and parcel of the new Torah emanating from the rabbis in his circles"?

      I truly wish you the best, and hope that someday there will be a better way for us to talk about Torah.

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    3. DovyMay 3, 2012 at 7:26 PM

      Hard to see how one can argue with the observation that the Chareidei world generally never showas any honor or respect to those on the other side -- even as the opposite is not true.

      At least that's how it seems to me, someone who is not part of either camp for the most part.

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    4. koillel nickMay 3, 2012 at 7:39 PM

      What about your brother? Would he agree that Rav Eliashiv is not above question? And that by halachic process, we are not bound to his decisions when there are cholkim?

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  6. koillel nickMay 3, 2012 at 7:53 PM

    Reading this teshuva carefully, and his conclusion. R O Yossef does not seem quick to accept an argument of maus allai. He requires a real good reason to believe it. In the case in front of him, the maus allai was extremely obvious.
    Tzitz Eliezer mandates an amtalla berura as well.
    In a case that there is a clear reason to believe her when she says maus allai, they both permit forcing the get.

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  7. yyMay 3, 2012 at 11:41 PM

    TNDT said: "how dare you assert his authority over others?"

    I don't.

    That's precisely the pt.

    It's a fine line: discern the greatest Torah authority you can, do your best to be mekayim "aseh l'kha Rav", and fully accept that other kosher yidden might come to other Rabbonim and even those under the same Rav might understand him differently.

    The problem is when someone begins justifying why they don't need to assess who possesses greater knowledge and authority, or they don't need to really listen to e-v-e-r-ything he paskens, etc, etc.

    70 ponim. Staring too long at only one can cause quite a stiff neck!

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