R Bechhofer's pshat in Rambam - critique

To review briefly, I posted the following assertion by James.

James (May 3, 2012) wrote : Even if it [ORA's actiities] is humiliation, (and I do not think it is) it is not humiliation ordered by the Beth Din. There is nothing new with publishing seruvim and calling the public to urge Aharon to give a GET. The only thing different is that ORA has decided to use the Internet to organize the public in a way that was never possible before the advent of the Internet. This is a private action

I disagreed and responded : In sum. It follows from the initial premise that as long as the force is unrelated to beis din we avoid all the tiresome discussion of what constitutes legitimate pressure according to Rabbeinu Tam or Rambam etc etc. Thus if this idea is correct - any and all types of force can be applied to force the get - because it is only vigilante action and not the legitimate psak of beis din!

I also posted two sources which I claim indicate that forcing by unauthorized individuals makes it a get me’usa.

Rambam (Hilchos Gerushin 2:20): If it isn't required according to the halacha that the husband be forced to give a get and beis din made a mistake or it was a beis din of laymen - [Rabbi Tougher's translation is " a Jewish court or simple people compel him"] and they forced him until he gave a get - the get is not valid.  But since Jews have forced him he should give her a valid get [because he might think it was valid and when he marries another without obtaining a valid get it produces mamzerim]. However if goyim force him not according to halacha it is not a get.... since the law does not require it and the force was from goyim it is not a get.

Chazon Ish (E.H. 69:23) describes a case that the wife's father refuses to give back money that belongs to the husband - unless he gives a get. The Chazon Ish says since the beis din did not authorize this it is kefiah by a hedyot. Therefore he urges that beis din be convened and rule that the father should not give back the money until the get is given.

============================

Batmelech commented

So what happens if his mother, or worse: mother in law, insists he give a get???This would be a forced get in any case, because nothing is more fearsome than an angry mother, or worse, mother in law!!!

================

Yosef Gavriel Bechhofer wrote: 

You can taunt James all you like, but he is absolutely correct. This is medukdak in the Rambam, but you missed the diyuk because you inaccurately translated hedyotos as laymen - implying it is a separate category from a BD that was in error. The Rambam is saying that a get compelled by an erroneous BD or a BD of simpletons is invalid. V'duk.

"Batmelech" also cut through to the heart of the matter:

Rabbi Bechhofer’s criticism of my position continued on his blog  

http://rygb.blogspot.com/2012/05/mechooh-contd-ii-james-gets-it.html

Yitzy Hillel asked Rabbi Bechhofer:

So what does Rav Sternbuch mean (5:344) that woman hiring thugs to beat men to give GETS is a Get Batul and causes Mamzurs. I am not talking about a fight between the husband and wife or family members, I just want clarify your statement that any actions that are not sanctioned by a beis din can never be Kefia?

Binyamin asked Rabbi Bechhofer

    The Rambam is in gerushin 2:20     "If the halacha does not require that he divorce her and the beis din erred, or if they were hedyotos, and they pressured him until he divorced, the get is posul" i.e. koshjer midioraisa and posul midirbanan. He does not say anywhere that if individuals pressured him the get is kosher. The Lechem Mishna explicitly says that if individuals pressure him where he is not required to give a get the get is posul midoraisa, same as if a non-Jewish court forced him to give a get.

Rabbi Bechhofer answered:

1) The Rambam doesn't have to say that if individuals pressured him the get is kosher. Any get that is not specified as batel or pasul is a priori kosher! The Lechem Mishne is very veit from pshat in the Rambam, u'devarav tzrichin iyun. All this, however, is lomdus. I believe my pshat in the Rambam, is emes, and any lamdan will be modeh al ha'emes.

2) But even if you don't, the logic which - despite your scoffing elsewhere - is represented by Batmelech's phrasing holds true. And that is why even according to the Mechaber, who does not pasken like the Rambam and holds me'useh al yedei a private citizen is me'useh, any pressure that does not entail: a) violence; b)direct financial penalties; c) niddui - does not create a state of me'useh. This is the yesod of Harchaka d'R"T. And that is why mei'ikar ha'din we do not need a BD to impose the harchokos. For, if a BD was essential to the process, Harchokas RT would be a form of Kefi'ah, and RT could not have sanctioned its use in cases in which he himself rules that ein kofin. Al karchach, the imposition of harchokos is not a Ma'aseh BD. What BD statement that the Harchokos are appropriate does is merely to verify that the activation of harchokos in this or that case is appropriate, and not creating undue nuisance for someone who does not deserve it.To turn the tables, your position is unsustainable. L'shitas'cha u'l'shittas haEidensohns, if I as a solitary individual would constantly go and harass someone until he gave a get, the get would be me'useh. If a Rav called a husband too late at night and that caused the husband to give a get, that would also be me'useh. If a very prestigious Rav called on the husband to give a get, and he felt he could not say no to such a distinguished personage, it would also be me'useh. Absurd, of course.

My Response:

Rabbi Bechhofer makes two points – the second assertion is that anyone who uses the harchakos of Rabbeinu Tam – even without authorizing can not create a get me’usa. That is because the harchakos of Rabbeinu Tam are  not considered force. It is an interesting point. But it is not clear that it is true. We see clearly from the fact that Rabbeinu Tam was not utilized for centuries because major poskim thought that it might create a get me’usa and that we see from contemporary poskim like Rav Sternbuch that they have a great reluctance to use them. I don’t think that Rabbi Bechhofer's assertion is obviously correct. The fact that Rav Ovadia Yosef says that beis din can authorize them at times - because of the needs of modern society – indicates he doesn’t think that they should be used indiscriminately. According to Rav Bechhofer – why the hesitation amongst great poskim? Why do so many prohibit the use of them? But Rabbi Bechhofer goes even further by saying that – even if beis din did not authorize Rabbeinu Tam – any and all harrasment would be permitted as long as it was not physical violence, monetary pressure or niddoi.

But even if Rabbi Bechhofer is correct that harchokas of Rabbeinu Tam do not require a beis din to authorize their use and can not create get me’usa - the question is and was whether ORA’s public demonstration or the screaming of neighbors or mother‑in‑laws are included in Rabbeinu Tam.

However Rabbi Bechhofer’s first assertion is totally absurd. He claimed that according to the Rambam - only a beis din is restricted to apply pressure according to the law. In contrast he claims that a layman who is not part of a beis din can apply any type of pressure and the get is still kosher. This “chidush” is explicity rejected by Rav Sternbuch, Chazon Ish, Lechem Mishna and I could not find a single source that explictly agreed with Rabbi Bechhofer “chidush”. Rabbi Bechhofer rejected the Lechem Mishna by saying, “The Lechem Mishne is very veit from pshat in the Rambam, u'devarav tzrichin iyun. He notes, “All this, however, is lomdus. I believe my pshat in the Rambam, is emes, and any lamdan will be modeh al ha'emes”.

This would mean that according to the Rambam any type of vigilante justice can not create a get me’usa – but only incorrect pressure applied by a beis din. Please find anyone – lamdan or otherwise - who agrees. It also does violence to the source of the Rambam – Gittin (88b) where only beis din can authorize pressure – any non-authorized pressure invalidates the get.

[[update May 14, 2012]]

I wrote: Rabbi Bechhofer, Please clarify your view. You noted that Rambam(Hilchos Gerushin 2:20) says that a beis din that errs or a beis din of hedyotos that force a get shelo kadin - the get is posul derabbonin. You made the diyuk that therefore if it is not beis din but individuals who force a get shelo kadin it is kosher. Obviously the Rambam was not referring to passive social withdrawal since that is not considered to be kefiya according to the poskim. It can only be dealing with issues such as financial or physical forces - and yet you said from the diyuk that vigilante justice can't posul the get.

Now you are stating that vigilante justice can in fact produce a get me'usa? So what is your true position?

Rabbi Bechhofer commented:"Three types of vigilante justice do produce get me'useh. These are specified by the Poskim: Violence, monetary sanctions and niddui. There is no precedent to ban any other form of persuasion, and the Harchokos in fact encourage other forms of persuasion. No one here has brought any definitive legitimate proof that demonstrations, petitions, and ostracism create a situation of get me'useh."

You can't have it both ways. The above statement contradicts the diyuk you made from the Rambam. If you always intended the above then you don't need a diyuk in the Rambam to permit someone not to speak to another person. However the case of the mother in law who yells at her son in law to give a get or the case of the father in law who takes his son in laws money to force him to give a get - you said were valid pressure when not done through beis din. You rejected the Lechem Mishna that rejected your diyuk.

Reply of Rabbi Bechhofer:

It is not a retraction. I believe that my pshat in the Rambam is emes. Nevertheless, since it is clear that many Gedolei HaPoskim either do not accept my pshat, or do not rule like the Rambam, I go on to clarify that my position stands independently of the Rambam, the distinction being that according to the Rambam any form of persuasion not initiated by BD would be valid, while the consensus of the Poskim (which I, of course, accept) is to exclude three forms of persuasion as kinds of Kefi'ah no matter how they are initiated. I believe this is pashut k'bei'ah b'kutcha.