Tuesday, October 15, 2013

Chacham Tzvi #1 Provides no heter to force a Get in a case of ma'os alei or where the husband loses leverage

I recently posted  an  article by Rabbi Hoffman  in 5TJT  about the use of cattle prods to force a husband to give a get.  He noted while it is clearly prohibited by the major poskim such as Rav Eliashiv and Rav Shlomo Zalman Auerbach - there are minority views such as the Chacham Tzvi which would allow it. [see 2005 Bedatz protesting against American cattle prod gittin]
"There are also Poskim who draw a distinction between the cases in the Gemorah and Shulchan Aruch and cases where the wife is no longer under the same roof as the husband. These Poskim write that the entire issue of limitation of forcing was only when they were under the same roof, but otherwise forcing when there is a concern that the wife would be an Agunah, left alone, is always permitted. The responsa of the Chacham Tzvi Siman 1 seems to indicate that he holds of this distinction. He writes that one may force a get either because of igun or because of the issues that Chazal enumerated. This is also the position of the Z’kain Aharon (Rabbi haLevy) in his responsa (#149). According to these Poskim the cattle prod get would be kosher."
Note Rabbi Hoffman tentativeness  - that the Chachom Tzvi would seem to accept the distinction of whether the wife is under the same roof. Thus the Chachom Tzvi at most implies that there might be a heter when the couple are living apart.

However I disagree with Rabbi Hoffman's apparent assertion that the Chachom Tzvi would allow the use of force in all cases where the couple are living apart.

I looked in the authoritative sefer Kefiya B'Get by Rav Tvi Gartner, expecting the find the Chachom Tzvi cited all over the place as a heter to use force. But I only found a single reference to it which is found below. [It is also not cited in review articles about aguna e.g., in the 111 pages of  Rabbi Breitowitz - Plight of the Aguna]

Chachom Tzvi says clearly that a get can be forced either because of the specific cases permitted by the gemora  or because of the issue of agunah. Rav Gartner explains  the Chachom Tzi as saying that force can be used in the case of aguna because it is similar to a forced sale in which the customer pays for the item and thus the "seller" loses nothing. This logic is described in Rabbi Hoffman's article in reference to the Rashbam and others. The simple question is does this in fact provide a heter to use a cattle prod to force a husband to give a get? (assuming of course that the government permitted its citizens to torture each other for religious reasons)

The answer is clearly no! Where the wife has requested the divorce because of ma'os alei - this is simply not a case of aguna. The overwhelming view of the poskim is that she is not an aguna because he didn't wish to divorce her and thus she still has a marriage. It is not the marriage she wants - but she is not an aguna. Even if there is a civil divorce - there is nothing preventing her from returning to him.

But what about the case where there is no possibility of reconciliation - doesn't the Chachom Tzvi allow force even in the case of ma'os alei? The answer again is clearly no! In most cases there are unresolved issues for which the giving of the get is the major motivation for the husband being able to obtain equitable custody or to resolve financial issues. Clearly the husband has much to lose by giving the Get. Thus even if you want to posken like the minority view of the Chachom Tzi - that in a case of aguna force can be use - his heter  doesn't apply in most modern cases.

In fact it apparently would only apply where the husband is only refusing to give a get out of spite - and he has nothing to lose by giving her the get.


91 comments :

  1. Although I think that the normative understanding of the halacha is like Rav Elyashiv zt"l and Rav Shlomo Zalman, the plain meaning of the Chacham Tzvi is that he permits it. We must always be intellectually honest when we come across a minority view. I see this other reading, but it is not pashut pshat. Also, you must remember that teh Rosh inside his responsa 43:6 relies on the Rambam's view bdieved - not like teh Rashba's view who considers it not a Get at all. Those Poskim who permit K'fiya are obviously relying on this Rosh. But like I said, this is not the normative halachic view.

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    1. If your understanding is correct - why isn't it widely cited in the teshuva literature - at least to the degree that Rabbeinu Yonah and Rav Palaggi are?

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    2. מר קשישא (אין מקרא יוצא מידי פשוטו): וי"ל דאין הפירוש מידי פשוטו במלות לתינוקות של בית רבן ועמי הארץ, רק לפי המובן מבעלי בינה, לכן אם לא יסבול השכל ביאור פשוטו וצריכין אנו לפרשו באופן המקובל על הדעת הרי אותו פירוש נקרא פשוטו, ולא פירוש המלות שא"א להולמו. וכה"ג כל שמוכרחין להוציאו מפשוטו, כמ"ש אם אינו ענין וכו'.

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  2. Eav Bachrach is referring to specifically to psukim and how we may darshen them. He is not referring to intellectual dishonesty in how to read a meforash. I prefer to learn the Chacham Tzvi at his word rather than go through all sorts of gymnastics. I think most Talmidei Chachomim would agree with the simple reading. It is like that ohr hachaim in vayatzilehu miyadam.. Many people prefer to misread him rather than to say that he believes that man can kill someone without Hashem having signed off on it.

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    1. Rabbi Hoffman wrote: I think most Talmidei Chachomim would agree with the simple reading.

      Could you give me examples of poskim understanding the Chachom Tzvi the way you do - rather than the way Rabbi Gartner explains it?

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    2. My guess is that the people forcing gitten learn the chacham tvi that is allowed and that is their heter. Thanks for bringing this up on your blog.
      By the way, are there any teshuvos on this subject from Harav Yosef Zatzal or from Rav Vosner shlita?

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    3. Sam - halacha is not a guessing game. This Chacham Tzvi is not brought in the major teshuvos dealing with get me'usa. Yes there are teshuvos of Rav Yoself and Tzitz Eliezar and others on the issue of get me'usa. Search the archives of this blog for get me'usa of forcing a get.

      I cited Rav Gartner's book - put out by Otzer HaPoskim which is devoted entirely to this topic. He cites no one who utilizes the Chacham Tzvi.

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    4. If you understand the Chacham Tzvi as referring to the classic aguna, i.e. a woman whose husband cannot be located, what sense does it make to talk of a forced get? If we could find him to force a get she wouldn't be an aguna in that sense. What case do you understand the Chacham Tzvi to be referring to?

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    5. According to Rabbi Gartner it can only be referring to a case where the husband is refusing to give a get out of spite - and he has nothing objective to gain by doing so.

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  3. @Rabbi Hoffman, I think you are the one who needs to be more intellectually honest.

    The Rambam that allegedly allows a forced GET (Hilchos Ishus 14:8) also states that "aino noteles b'shel baal klum" (the wife may not take anything belonging to the husband). Rambam also states she may not even take her shoe or head covering. The Rambam also allows a man to marry 100 wives at the same time (14:3).

    Why don't the pro-agunah rabbis ever quote these other, not so feminist halachos of the Rambam?

    Do you really believe that the Rambam would allow forced GITTIN today in the many cases where Jewish men were sued, robbed, and jailed by their wives in non-Jewish court, and prevented from seeing their children?

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    1. @Rabbi Hoffman, I think you are the one who needs to be more intellectually honest.
      Seriously?!?!?! Is Ad-hom your default setting? Two Rabbis can't disagree on how to read a single source without one of them being "intellectually dishonest"? Which of the Rishonim then were "intellectually dishonest" in their reading, and commenting on the Torah- Ibn Ezra, Rashi, Ramban(*snark*well we always knew he was kinda iffy*snark*)...? They all disagreed on the pshat of the text. When Rashi is the minority opinion on a piece of Gemarra against the Rosh, Rif, Rashbam and Rambam is he being intellectually dishonest?

      The Rambam that allegedly allows a forced GET (Hilchos Ishus 14:8) Scratch the allegedly and you would have his actual opinion.


      And what does any of this have to do with forced Gittin?

      Why don't the pro-agunah rabbis ever quote these other, not so feminist halachos of the Rambam? Please tell me you are not accusing Rabbi Hoffman of being pro-feminist... I believe that everyone is pro-agunah(that is by the Torah/Shulchan Arukh definition of an Agunah).

      Do you really believe that the Rambam would allow forced GITTIN today in the many cases where Jewish men were sued, robbed, and jailed by their wives in non-Jewish court, and prevented from seeing their children?
      I can't speak for Rabbi Hoffman, but yes he would. He would also allow the husbands to "force" even through beating, their former wives to get back what was their's if the B"D could not manage it for them. Fortunately, unless you are Teimani the halakha is not like the Rambam. Interestingly though Rav Eliashiv does say Eilu V'Eilu concerning Teimanim(Piskei Din Vol1 p193, unfortunately those pages didn't make the scan for HebrewBooks.org so you will have to look it up on Bar Ilan or Otzar Chokhmah).

      Rav Eliashiv ruled in Piskei Din and this was also brought in the sefer Kovetz Teshuvot(despite the unfortunate fradulent addendum at the beginning) that a father has no intrinsic halakhic right to custody of his children and that especially with a daughter the intrinsic halakhic right for full custody resides with the mother.

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    2. The Rama says that while we Ashkenazim don't use kefiyah, bedi'eved it does not invalidate the gett if the man was obligated to give one. And one needn't hold like the Chakham Tzevi to recognize that a man who moved out and doesn't provide onah (in most of these cases in the US, he even signed a civil divorce to that effect) is obligated to give a gett.

      But then, we've been here before.

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    3. Mr. Tzadok: So Rav Eliashev differentiates between boys and girls insofar as custody rights under Halacha are concerned. Boys are Halachicly given to the custody of the father (once past nursing age) while girls are Halachicly given to the custody of the mother.

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    4. R. Berger,

      So the Rama states that kefiya cannot be used by Ashkenazim. Therefore kefiya cannot be used.

      As far as moving out, if it is the wife that moved out, not the husband, then he is still willing to provide onah for her and willing to have her back in his home. Therefore he is not guilty of refusing to provide the required onah. Her moving away and refusing to accept onah, does not give her additional rights or a right to a Get.

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    5. Felix the psak didn't say anything about boys, it just said especially since the child is a girl.

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    6. And one needn't hold like the Chakham Tzevi to recognize that a man who moved out ...

      There is a HUGE difference between a woman who leaves her husband and claims מאיס עלי and a husband who abandons his wife(and possibly children). In the first case he is possibly a moredet(depending on circumstances) in the latter case she is a true Agunah.

      In all honesty if you were to say that pressure could be used to force a man who abandoned his wife(and possibly children), sued her for a civil divorce and went off to some other community to get on with his life(and even possibly marry another woman) while leaving his wife an Agunah, there are only a few Trolls that would disagree with you.

      However when the wife leaves her husband and sues him for divorce, unless he has a real compelling reason it is an entirely different Megillah.

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    7. Just to add a point to my above response to R. Berger, if the wife forces the husband out of their home, it would present the same scenario as if she walked out - that I discussed above. (As opposed to if he leaves her.)

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    8. Tzadok, you're a true master spin doctor. You've already been caught numerous times by numerous people on this blog making misleading and erroneous claims.

      The Rambam I cited clearly states that a wife forcing a GET on her husband may not take anything belonging to the husband (Hilchos Ishus 14:8). This halacha is completely ignored by the MO feminists citing the Rambam on forced GITTIN.

      Not to speak of the fact that a Jew using non-Jewish courts loses their rights to Bais Din (Choshen Mishpat 26) until they completely withdraw from the non-Jewish court.

      If you're now trying to claim that the Rambam allows a Jewish wife to rob her husband in non-Jewish court, and then force him to give a GET, then you're simply inventing your own feminist religion, and then calling it Judaism. The same way Epstein, Schachter, ORA, etc. invent their own feminist religions and then call it Judaism.

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    9. Mr. Tzadok: And thus Rav Eliashev is clearly implicitly differentiating between boys and girls regarding custody, as I outlined in my comment above.

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    10. Tzadok, you're a true master spin doctor. You've already been caught numerous times by numerous people on this blog making misleading and erroneous claims.
      So I will take that as a yes. Your default position is ad hominem. You refuse to deal with actual sources.
      The Rambam I cited clearly states that a wife forcing a GET on her husband may not take anything belonging to the husband (Hilchos Ishus 14:8). This halacha is completely ignored by the MO feminists citing the Rambam on forced GITTIN.
      And I fully conceded that point. Further I said that the Rambam would allow extreme measures to the men to get what was rightfully their's back. However are you truly going to imply that Rabbi Hoffman is an "MO Feminist"? Really? After he clearly sided with Rav Eliashiv and Rav Auerbach in his article, because you don't like his position on the Chacham Tzvi you are going to imply that he is a Feminist?

      Not to speak of the fact that a Jew using non-Jewish courts loses their rights to Bais Din (Choshen Mishpat 26) until they completely withdraw from the non-Jewish court.
      You repeat this so much that I almost think that you believe it. HOWEVER You do NOT hold men to that same standard. As you have repeatedly shown.

      If you're now trying to claim that the Rambam allows a Jewish wife to rob her husband in non-Jewish court
      That is completely your own invention. I NEVER said and NEVER implied any such thing.

      The same way Epstein, Schachter, ORA, etc. invent their own feminist religions and then call it Judaism.
      The same way you invent opinions for other people.
      The same way you invent a misogynist Torah where women are stripped of the rights afforded them by the Torah, Poskim and Gedolei HaDor.
      You have yet to show that either Weiss or Friedman ever had any valid heter to go to secular court. Neither of them consulted with a Beit Din as the Poskim and Gedolei HaDor said they must. Both went. Friedman in direct contradiction of Rav Eliashiv's psak that a woman should have sole custody of a daughter. Why haven't they lost their rights in a B"D.

      Mind you, I BELIEVE that ABSOLUTELY ANYONE who goes to secular court without a valid heter from a Beit Din, has halakhically lost their rights in a B"D.

      You on the other hand cannot make the same claim.

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    11. Mr. Tzadok: And thus Rav Eliashev is clearly implicitly differentiating between boys and girls regarding custody, as I outlined in my comment above
      I always find it quite dangerous to try to read anything implicit into a psak din for several reasons. First as most(if not all) books of Shu"T will say on or near their title pages those psakim are given to very specific circumstances.
      That being said, it seems to me according to my admittedly poor understanding, that the majority of halakhic literature states that a boy should primarily be with his father once he reaches the age of Chinuch. There is significant differences in the opinions that I have read regarding that. I have read a difference of opinion from 3yrs to 5yrs of age. I know there is a Piskei Din on it, and I know that they argued both sides in their Iyun, however do not remember if Rav Eliashiv signed that Psak, and I do not remember what the final psak was. Therefore I must say that I do not know what the final halakha is or what Rav Eliashiv's position is.
      I will try to find the specific Piskei Din and see if that is any more enlightening to either the actual halakha or Rav Eliashiv's position.

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    12. Regarding custody it is what is best for the children

      http://daattorah.blogspot.co.il/2012/07/rav-sternbuch-divorcewho-gets-custody.html

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    13. DT: If custody is based on "what is best for the children", how do you account for the differentiating as to whether the child is a boy or girl in the halachic literature (sh"ut, etc.)?

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    14. Did you read Rav Sternbuch's teshuva?

      read the following

      http://www.jlaw.com/Articles/childcus1.html

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  4. I have a question for Rabbi Eidensohn:

    Let's play devil's advocate and say that the chacham tzvi would allow force in a case where the couple are living apart ...

    would he also say so in cases where there is recorded proof of.the wife's slandering the husband and alienating the children (to the point that they shamelessly belittle him in public)?

    ....several cases of calling police and false accusations of abuse (that the adult children forced her to drop because they all knew how absurd the charges where)?

    ...claiming that they were relying on "daas torah", while showing a consistent pattern of changing rabbonim once the rabbonim caught on to their ploys?

    ....never agreeing to a face-to-face meeting to air out differences?

    ....doing everything possible so that the husband shouldn't even know who their rabbonim are - and when he does find out, convincing the rabbonim not to listen to him, claiming that he's so stubborn that there's no reasoning with him and only ultimatums work?

    Would anyone allow a forced get in such circumstances?

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    1. Regarding the Chacham Tzv he only says a get can be forced for the cases mentioned in the gemora and because of aguna. Everything else are deductions based on the word aguna. Is it a true aguna that has no hope of returning to marraige, is it a pseudo aguna who is tired of hearing her husband snoring and wants to find another, is it a woman whose husband is wonderful and devoted but she has fallen in love with the non-Jewish cab driver with whom she is having an affair and she wants to marry him.

      So you can read the answer to your question in this terse phrase of the Chacham Tzvi also.

      Obviously such a wife as you describe should have no trouble finding a rav who for the right price will understand the Chacham Tzvi in her favor.

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    2. DT: If she is having an affair, the husband is required to give her a Get. (And she is guilty of the capital offense of adultery.)

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    3. If he doesn't know about it or doesn't believe her he is not required to give a get

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    4. DT: When you say he "doesn't believe it" do you mean he sincerely in his heart doesn't believe it or do you mean he might know its true in his heart but he professes not to believe it in order to remain married to her?

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    5. Ancient question. Rav Moshe Feinstein says to tell the husband in essence, "how can you believe her when Chazal - who are beyond our comprehension in greatness - tell you not to?"

      But if he truly believes her than he needs to give a get

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    6. DT: Where and in what circumstance does "Chazal tell you not to" believe it or her?

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    7. We have discusse this a number of times

      משנה מסכת נדרים פרק יא

      בראשונה היו אומרים שלש נשים יוצאות ונוטלות כתובה האומרת טמאה אני לך שמים ביני לבינך נטולה אני מן היהודים חזרו לומר שלא תהא אשה נותנת עיניה באחר ומקלקלת על בעלה אלא האומרת טמאה אני לך תביא ראיה לדבריה שמים ביני לבינך יעשו דרך בקשה נטולה אני מן היהודים יפר חלקו ותהא משמשתו ותהא נטולה מן היהודים:

      רמב"ם אישות כד:כג

      אשת כהן שאמרה לבעלה נאנסתי או שגגתי ונבעלתי לאחר אינו חושש לדבריה שמא עיניה נתנה באחר, ואם היתה נאמנת לו או שאמר לו אדם שהוא סומך על דבריו יוציא ויתן כתובה.

      שולחן ערוך אבן העזר הלכות כתובות סימן קטו סעיף ו

      אין עדים שזינתה, אלא שהיא אומרת שזינתה, אין חוששין לדבר זה לאוסרה, דשמא עיניה נתנה באחר. ודוקא שאין רגלים לדבר, אבל אם יש רגלים לדבר נאמנת (פסקי מהרא"י סי' רכ"ב), אבל איבדה כתובתה, עיקר ותוספת ומה שאינו בעין ממה שהכניסה לו. ( ואם חזרה בה ונתנה אמתלא לדבריה למה אמרה בתחלה כן, נאמנת) (הגהות מרדכי דקדושין). ואם היה מאמינה ודעתו סומכת על דבריה, ה"ז חייב להוציאה, אבל אין כופין אותו להוציאה. אבל אם נאנסה, לא הפסידה כתובתה, לא אשת ישראל ולא אשת כהן. הגה: ועיין לקמן סימן קע"ח סעיף ט'. אמר א' על אשה אחת שזנתה עמו, נאמן עליה כעד אחד, דפלגינן דיבוריה (רשב"א סי' תקנ"ב). ואם היא הודית לפני אחד שנטמאת, הנחשד מצטרף עם האחד לאסרה על בעלה (פסקי מהרא"י סי' רכ"ב). הודית לפני אחד שזנתה, ואח"כ אומרת ששקר הוא, ומכחשת העד המעיד עליה, מותרת לבעלה אף אם מאמין הבעל לעד המעיד עליה, דאמרינן בתחלה שהודית נתנה עיניה באחר ועכשיו חוזרת בה (שם במהרי"ק שורש פ"ב). אשה שאמרה לבעלה שזנתה, אף על פי שאינה נאמנת, אם עמד וגירשה, אסור להחזירה; ואפילו אם החזירה, יש לחוש (מהר"ם פדוואה סי' ל"ד).

      שולחן ערוך אבן העזר הלכות סוטה סימן קעח סעיף ט

      לא קינא לה, ובא עד א' ואמר לו: זינתה, והיא שותקת, אם הוא נאמן בעיניו ודעתו סומכת עליו כשנים, יוציא ויתן כתובה; ואם לאו, מותרת לו. הגה: והוא הדין אם היא עצמה אומרת לו שזנתה, כמו שנתבאר לעיל סי' קט"ו סעיף ו'. וי"א דבזמן הזה שיש חרם ר"ג שלא לגרש אשה בעל כרחה, אינו נאמן לומר שמאמינה או שמאמין לדברי העד (הגהות מיימוני פכ"ד ומהרי"ק שורש ק"י בשי"א), דחיישינן שמא עיניו נתן באחרת, ואומר שמאמינה אף על פי שאינו מאמין. ומנדין אותו על שאומר שמאמינה וגרם לבטל חרם ר"ג. והוא הדין בכל מקום שלא יוכל לגרש בלא דעת האשה. וי"א דכופין אותו ומשמש עמה (מרדכי פרק האומר), אף על פי שאומר שמאמין לדברי העד, מאחר שהאשה אינה מודה, או אפילו אמרה בעצמה: טמאה אני לך, וחזרה ונתנה אמתלא לדבריה הראשונים. כן נראה לי על פי סברא זו. אבל יש חולקים וסבירא להו דאף בזמן הזה, נאמן (שם במהרי"ק, וכן משמע מהרמב"ם פכ"ד). ואם היה לו קטט עמה, אינו נאמן לומר שמאמין לדברי העד, דודאי מחמת שנאה אומר כן (שם במהרי"ק). ועיין לעיל סימן קט"ו סעיף ז'.

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  5. assume a forced get is ok. assume that the entire process of hazmanas and seruvim etc were ca'halacha. assume bais din paskens it's a case of kofin oso. is ther a psak from anyone that you are allowed to beat a man in America today.
    just wondering...

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    1. No, absolutely not. Dina Malchusa Dina. It is illegal in US law, so it is against halakha. One has to work within the authorities.

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    2. Yes, in the scenario you described it would be permitted to beat the husband in America. Dina Dmalchusa Dina is only applicable (per Rav Eliashev and most poskim) for matters such as monetary issues between the government and its people, and is inapplicable in most other situations where when secular law is in conflict with Halacha, Halacha takes precedence.

      Just note that to pasken kofin osa the beis din has to have the husband present in beis din and make a ruling that he is obligated to give a Get. If the husband was not present the beis din is halachicly unable to pasken he must give a Get. Once it paskens he must give a Get, then it must have the husband present in beis din again at a future date in order to be able to pasken kofin oso. Without the husband being present in beis din it cannot pasken kofin oso. This fact is true even if the husband unhalachicly refuses to appear in beis din. The beis din cannot pasken kofin oso, but the husband can authorize he be beaten in order to force him to appear in beis din. That still would not allow kofin oso to force a Get.

      But also remember that nowadays the husband must first accept the jurisdiction of beis din in the first place before any particular beis din even has the right to rule in any matter (gittin or other issues) regarding the husband. If the husband does not willingly submit to the beis din's jurisdiction and instead insists another beis din rule on the matter, then the husband has the right to use a Zabla beis din and is not under the jurisdiction of the first beis din and the first beis din cannot force him to accept their jurisdiction or rule the husband in contempt (siruv). The husband does have to respond to the first beis din that summons him to court otherwise they can issue a siruv against him. But his response can be "I don't accept your jursdiction", and then the first beis din is out of the picture halachicly.

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    3. I agree - you can read teshuvos of the rishonim who say that say that a Jewish court can not excecute criminals without the permission of the secular government or that they have the secular government do the excecutions.

      I think it is more a question of whether you can get a moser in trouble with the secular government to prevent him from harming you.

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    4. so then if what these people did what the fbi says they did
      1- it was against American law
      2- it was against halacha

      so how can anyone defend them or defend those who support them

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  6. Asher Pihem Diber ShavOctober 15, 2013 at 5:13 PM

    I am wondering, if Beis Din has the ability to do Kfiyah nowadays, Halachically ? Even when it comes to mosrim, I am not sure we are able to carry out any type of punishment nowadays. Even if we were to pasken like the Rambam, I recall reading tshuvos saying that we can not.

    ( I am not asking about a case where there was no hazmana recieved, no true siruv, and the ba'al doesn't exist, and the Dayanim are taking money. I am speaking if we had three talmidei chachamim, Beis Din of the City, the Baal came to beis din, and refuses to divorce the woman.)

    Also, I am wondering about the mailing of hazmanos. Why is mail good enough for a Dayan to be mesarev someone. Don't we also have to know that the defendant recieved it ? Or exists for that matter? what chazaka do we have that someone reads his mail ?

    I am also wondering, Dayanim taking 200 dollars an hour each. Is it permitted ? Are their psakim valid ? what about when they are "your" toen they take money, then they turn Dayan at Beis Din. It is even permitted Halachically? (In secular courts, I believe this would be the definition of "conflict of interest", for a Toen to then become a Dayan)

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    1. Yes. Rav Eliashiv signed on a Psak Din that one can be Kofin(granted in Israel that means putting the person in jail). It can be found in Piskei Din Vol 1 p 193.

      Rav Ovadia Yosef who was sitting the B"D with Rav Eliashiv at the time brings the same case in his sefer Yabia Omer Vol 3 EH"E 18.

      It is a case where a girl was forced to marry a man against her will.

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    2. Mosrim can halachicly be killed nowadays if it is done before he was moser on a yid (or before he continues being moser on a yid.) Even without beis din. If someone is about to be moser he can be killed, if necessary, to stop him.

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    3. Mosrim can halachicly be killed nowadays if it is done before he was moser on a yid (or before he continues being moser on a yid.) Even without beis din. If someone is about to be moser he can be killed, if necessary, to stop him.
      I'm wondering. Is this a Trolling attempt or did you forget the "'t" of can't and accidentally wrote can?
      Never mind dina malchusa dina. In a state with the Death Penalty you would also be over for throwing your own life away.

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    4. I haven't seen anyone posken that way - do you have any sources that one can kill in violation to secular law?

      As you can see from the universal disgust and horror expressed in the secular press i.e., chilul haShem. There is the major problem of aiva.

      Bottom line one can not kill nowadays except to defend his life or that of another.

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    5. DT: If a man saw another man about to, or in the process of, raping his wife (eishes ish) and there is no way to stop him other than killing him on the spot, and secular law doesn't allow him to kill the guy and it will be a "chillul Hashem" if he does, are you saying he must allow the guy to rape his wife?

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    6. RMT: If he is at risk of losing his own life to the secular government's death penalty, of course he shouldn't kill the moser.

      DT: It is the pashut pshat in halacha of what you can do to a moser. Dina Dmalchusa doesn't apply to this scenario (dina dmalchusa doesn't apply to every scenario under secular law) and doesn't override halacha.

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    7. Ben Torah - there are many things that a person can do - but shouldn't.

      The fact that you will find statements that killing a moser is not considered murder - doesn't mean that a person can do it. The fact that there were times in Europe that it was done - was largely because the community percievved they were more in danger from the moser than they were from an angry government or they thought they could get away with it.

      The times have clearly changed and there is no question that it would endanger Jewish lives around the world.

      Regarding your scenario of rape - you make a number of assumption which I don't think are true.

      I doubt that any jury would convict a man who killed a man attacking his wife. I doubt that it is a crime to defend your wife against rape. Anybody know for sure?

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    8. http://abcnews.go.com/GMA/story?id=125846

      here is a story of a woman killing a rapist - it was declared justifiable homicide!

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    9. DT: The story you linked to on ABC News is a case where the rapist was also explicitly threatening her life by pointing a gun to her chest and verbally threatening to kill her. So she killed him first before he could grab the gun back. That is self-defense from attempted murder not just rape. At least as the case was in that story.

      But in any event, for this exercise and the purposes of our discussion let's assume the local law in some American town is that it is illegal to kill an attempted rapist and killing him is considered manslaughter. So now an attempted rapist is about to or in the process of raping a man's wife when his only way of stopping the guy is to kill him on the spot -- which is against the local law. Does the husband let him rape her or does he kill him?

      About a moser, the halacha is it is recommended to kill him if that's the only way to stop him from massering, not just that it is permissible to kill him. (Obviously it will endanger the guy that kills the moser if the government gets wind of it; but in a situation where that risk doesn't exist hypothetically.)

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    10. Lets start with Moser - is it required that you kill him or is it optional?

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    11. Al pi halacha, if the moser is about to masser someone and the only way to stop him from successfully massering someone is to kill him, then it is require to kill him (IF that will not endanger the person killing the moser.)

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    12. I doubt that any jury would convict a man who killed a man attacking his wife. I doubt that it is a crime to defend your wife against rape. Anybody know for sure?
      There are two factors that could possibly lead to a conviction in this case. First is jurisdiction. There are states and jurisdictions where a person has an absolute right to defense of self and others. There are others where the person only has a right to defend self to minimum needed to escape and absolutely no right to defense of others.
      Now would a jury convict a person in such a circumstance... Well that's the rub. It would really all come down to jury selection. Of course a prosecutor who has to run for re-election on his conviction rate is going to try to stack the jury with folks who are absolute pacifists and will gladly enforce these laws(which personally I think are immoral). If the defendant in such a case gets out lawyered, or even worse has to rely upon a public defender, then he may well get convicted. It has happened. I have some Federal LEO friends I could ask if you want to know actual cases.

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    13. "l pi halacha, if the moser is about to masser someone and the only way to stop him from successfully massering someone is to kill him, then it is require to kill him (IF that will not endanger the person killing the moser."

      where does it say such a thing?!

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    14. A moser is a rodef. What I am saying applies to a rodef and thus a moser. (Teshuvos HaRosh 17:1.) Also see Mordechai, Bava Kama, Hagozel '117. Shulchan Aruch, Choshen Mishpat 388:10 says you can kill a moser even without authorization from a beis din. Shulchan Aruch, Choshen Mishpat 388:14 says he may be killed without warning if he regularly is a moser.

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    15. In Israel, the batei din are empowered by the government to use some element of force to force a get. (Not beatings, but jail.) In America they are not. Big difference.

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    16. Ben Torah make up your mind - first you say it is required to kill a moser and when I asked for proof you bring sources that say you may kill a moser

      "al pi halacha, if the moser is about to masser someone and the only way to stop him from successfully massering someone is to kill him, then it is require to kill him (IF that will not endanger the person killing the moser."

      "A moser is a rodef. What I am saying applies to a rodef and thus a moser. (Teshuvos HaRosh 17:1.) Also see Mordechai, Bava Kama, Hagozel '117. Shulchan Aruch, Choshen Mishpat 388:10 says you can kill a moser even without authorization from a beis din. Shulchan Aruch, Choshen Mishpat 388:14 says he may be killed without warning if he regularly is a moser."

      required and permitted are a world apart. If it is permitted according to halacha but the secular governement says no and it is a chilul hashem you do not kill and you endanger your life as well as all you Jews - then you don't do it.

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    17. DT: Shulchan Aruch and all the other Sifrei Halacha are not telling you that you may kill a moser but it is better not to. If so, they would say that. They say that a moser may be killed because that is what should be done to protect Jewish people from the results of the massering a moser does.

      I said earlier if killing the moser puts ones life in danger (i.e. the secular government will execute him for murder), then one shouldn't do so.

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    18. " I have some Federal LEO friends I could ask if you want to know actual cases. "

      I would be interested in knowing

      Delete
  7. When Bris Milah became illegal in Greece, our obligations superseded. (assuming all that 'Asher Pihem Diber Shav' says below is true...)

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    1. Milah is a very different issue. Milah outweighs all other positive commandments. The Shulhan Arukh even permits circumcising a child against the parents' will, and goes so far as to say that every individual is required to try..

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    2. Mr. Tzadok: What happened to dina dmalchusa dina?

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    3. Felix it is a longer discussion than I want to have here, the short of it is that the Rishonim and the Shulchan Arukh say that it does not apply in the case of milah.

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    4. So you are saying that dina dmalchusa only applies where the Shulchan Aruch and Rishonim say dina dmalchusa applies. Very well. And as you say those are a limited number of situations. And dina dmalchusa does not apply to all secular laws.

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    5. So you are saying that dina dmalchusa only applies where the Shulchan Aruch and Rishonim say dina dmalchusa applies.
      No I am saying it applies unless the Rishonim and Shulchan Arukh specifically say otherwise, and those exceptions are a limited number of situations.

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    6. Michael: On what basis do you assert that dina dmalchusa applies to all secular laws except any specifically excluded by Shulchan Aruch as opposed to that dina dmalchusa only applies to certain types of secular government laws and not all. (Such as dinei mamonus between two Jews is governed by Choshen Mishpat even if secular law disagrees with Choshen Mishpat.

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    7. Are you saying that Dinei Mamanut come into direct conflict with Dina Malchusa? I don't see that?
      Dina D'Malchusa, according to the Shulhan Arukh is anything designed to promote the well being of general society. But that private agreements are exempt.(CM 369 I believe)
      So again, the Shulchan Arukh has specifically ruled that finanical transactions between Jews are not ruled by Dina D'Malchusa.
      However you cannot choose to violate the speed limit.
      Then are also financial laws that are not covered by the Shulhan Arukh, such as copyright law, such as copying CD's for friends and Ebooks and such.
      I heard from Rav Triebetz that he asked Rav Eliashiv about it, and that Rav Eliashiv replied Dina D'Malcusa, and more that if we would look like thieves in the eyes of non-Jews(thus Chilul HaShem).

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  8. On a philosophical or ethical or practical level, why is it so important that the man have all the leverage? Why can't the woman have leverage?

    In other words, *why* is the halacha this way?

    People, particularly women with a keen sense of fairness and justice, are angered by these laws and they make them want to go off the derech (if they are on it to begin with.) What would you say to such women?

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    1. We are the only culture that respects women and doesn't objectify them. Everybody else expects women to be treated as objects and we expect them to be treated like dignified human beings. That's why we send our daughters to Bais Yaakov and not public schools. Don't talk to me about goyim being fair to women.

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    2. I'm also adding that people don't go off the derech because of intellectual dissonance. They go off the derech because they were physically, sexually, or psychologically abused or emotionally neglected by their Rebbi or their parents. People are only connected to Judaism through their emotions. They leave if they are hurt, and they don't join if they are afraid to change. It has nothing to do with the intellect.

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    3. Lazer, interesting thoughts but I'm not sure I completely agree. The thing is, what we see as preventing women from being objectified (tznius), they see as men controlling women. There are many people who want to follow traditional Judaism but they see Conservative Judaism as most legitimate because it has removed the gender role distinctions between men and women (as American secular law and custom has, to a large degree). Any aspect of gender inequality needs to be explained in a rational manner and as a just and reasonable, to have any chance of bringing many liberal Jewish women closer to true Yiddishkeit.

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    4. This is a juvenile view. The Lubavitcher Rebbi explained in that other video post, that women are given a holier mission than men. This argument, that if two things are different than it must be unequal and needs to be fixed, is like like the ground saying to the sky, its not fair that you're up and I'm down.

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  9. What is very interesting and equally disturbing is that even in the cases when Men deposited their GET at a Bais Din such as the avrohom Rubin case and many others, many were still kidnapped and tortured to issue another GET. I DONT BELIEVE THAT ANY POSEK WOULD ALLOW THIS EXTREME MEASURES ONCE A BAIS DIN HAS A GET AND IS WAITING FOR THE WOMAN TO COME TO A DIN TORAH!!!

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  10. i am not defending the torture, etc,-i thinks it's nuts-well, perhaps I should rephrase that... but i would like to know where the gedolim clearly (not someone heard, not some ambiguous statement) but clearly ossured this practice, which, if not valid, has led to many momzerim-I would think gedolim would have, and should have, come out VERY loud and VERY clear against this a long time ago, as this has been going on for at least 25 years.

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    1. tooclose2detroit: The Gedolim in Eretz Yisroel and the Badatz in Yerushalayim HAS BEEN SCREAMING against exactly this in America for well over a decade already.

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    2. http://mishpattsedek.com/mtwp/get-meoso/jerusalem-rabbinic-court/

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    3. very powerful letter, but.....I don't see Rav Ilyashiv's name, I don't see R' Ovadia Yosef's name--not to downgrade those that produced and signed this letter, but....I would expect, and am dissapointed, not to see letters signed by the those that were considered the undisputed leaders of the generation, and I must wonder why didn't they put out a letter this strong, if one at all.

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    4. That strong letter most certainly is signed by some of those that are considered the leaders of our generation.

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    5. .I don't see Rav Ilyashiv's name, I don't see R' Ovadia Yosef's name

      Rav Eliashiv is well known to have spoken out against this. Though Rav Eliashiv very rarely wrote anything after he left Rabbinut. Several sources have reported that he spoke out against these sorts of Gittin.

      Rav Ovadia is well known for leaving US affairs to Rav Katzin having stated on several occaisions that he believed that US Rabbis were better suited to handle the US. Though if we looked through all of his Teshuvot combined I am fairly certain you would find that he was against this at least from a Kal V'Chomer.

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    6. I am not convinced--if you are the leader of your generation, then you don't "speak out" against these sorts of gittin, which lead to thousands of mamzerim, and have it "reported" that you were against it--you write in BIG BLACK LETTERS that this is a MAJOR problem that MUST be stopped!- Re Rav Yosef leaving it up to the US leaders--ok, so did R Elya Svei write against this, did the Rosh Yeshivas of Lakewood, TorahVDas, Mir, Chaim Berlin, etc etc write unambiguous letters against this??-If not, why not?-Everyone had no problem condemning the "satanic" internet, which, at worst, leads to men looking at pornography, but when it comes to torturing men into giving gets which are invalid and leading to eternal generations of mamzerim then, from these leaders we hear crickets??-It is either a negligence in leadership, or wishful thinking on those that want to believe that all agree with them that these gittin are invalid.

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    7. The Badatz in Yerushalayim, which encompasses several of the Gedolei HaDor including some of the signatories, for many many years HAS BEEN writing and yelling in BIG BLACK LETTERS that this is a MAJOR problem that MUST be stopped!

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    8. As I have stated, THE Gedoley ha Dor (Rav Ilyashiv, Rav Steinman, the recognized Rosh Yeshivas in the US) did not seem to be able to find time to put pen to paper on this issue--They found plenty of time to slam that dastardly internet, but, for some reason, this one, for the last 30 years, which, according to you, has led to thousands and will lead to hundreds of thousands of mamzerim, they couldnt quite find their pens to put out letters-mamanafshach--it is either negligence of leadership, or, they are not as nearly against it as many would like to believe.

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    9. THE Gedolei HaDor (Rav Yitzchok Tuvia Weiss, Rav Moshe Shternbuch, etc.) HAVE put pen to paper on this issue. And Rav Eliashev, too, has issued piskei din that is on paper on this issue.

      Get your facts straight.

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    10. just added a link at top of page to the 2005 letter from Bedatz denouncing cattleprod gittin

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    11. I ask for Reb Yochanan ben Zakai, and you bring me Rabba and Abbaye. Not Bedatz-the Gedoley ha Dor-Rav Shteinman, Rav Ilyashiv, Reb Shlom Zalman, the Rosh Yeshivas of the American Yeshivas---bring me a written and clear PSOK from them-not "known to have", etc--apparently, you can't, and continue to obfuscate the issue--Not sure why-must be an Obama voter.

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    12. tooclose2detroit, you've been answered multiple times. You are incorrect. They have protested. Repeating your narishkeit multiple times won't change the reality.

      End of conversation.

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    13. tooclose2detroit, you've been answered multiple times. You are incorrect. They have protested. Repeating your narishkeit multiple times won't change the reality.
      Correct.

      I ask for Reb Yochanan ben Zakai, and you bring me Rabba and Abbaye. Not Bedatz-the Gedoley ha Dor-Rav Shteinman, Rav Ilyashiv, Reb Shlom Zalman,
      Rav S.Z. Auerbach left the US to Rav Moshe Feinstein. The two had a really interesting debate over chicken bones being Muktze on Shabbat, and Rav Auerbach realized that the differences between Israeli reality and US reality were so great that the US was best left to the US Gedolim, specifically Rav Feinstein.

      Aside from him you act like any of these Rabbanim want to be leaders of world Jewry. Judaism doesn't have a Pontificus Maximus(Pope). Rav Eliashiv was an extremely pious and private individual that simply wanted to be left to himself to study Torah.

      Rav Ovadia Yosef, he saw himself only ever really as a leader of Israeli Jewry, and was often reluctant to even write letters in response to Shailot from other nations, in fact he wouldn't answer individuals he would only answer Rabbanim. Further you rarely saw Rav Ovadia Yosef truly protest anything. I asked him about child abuse once and he said he had already answered that question in Yechave Daat. When I looked up the Yechave Daat he mentioned it was about turning in a guy who speeds habitually or doesn't wear his glasses when he was driving. I returned to the Rav and asked him how that was about abuse, and his reply was that it was a simple kal v'chomer. If one could moser a speeder, who harm was only a potential, one could definitely moser an abuser who's harm was obvious.

      Therefore considering he has written several Teshuvot on when and when not Kofin may be used, I don't see him writing a protest against it.

      Further you unnecessarily and unjustifiably demean the Badatz of the Eidah. They are certainly Gedolim of very high caliber and I say that as a Sephardi Rav. I don't see how their opinions should carry any less weight.

      As far as American Roshei Yeshivot... Well you would have to ask them.

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    14. stop using nastiness, Larry. "end of conversation", you say--great news-stay the heck out of it-I have NOT been answered-I am not demeaning Bdatz-but, when people speak of THE Gadol ha dor, they speak of R Shteinman, R Ilyashiv, R Auerbach--they don't speak of R Shternbuch, as choshiv as he may be--You have brought NO written proof that the accepted Gadol Ha Dor of the last 20 yrs has written a clear psok against these actions--and, as far as I am concerned, and, I would think any objective observer would say, that it is either negligence in leadership OR they were not as against it as you would fantasize--and larry, I could frankly give a hoot as to what you think, if at all.

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    15. R Ilyashiv only wanted to be left to himself?-he issued no psakim, never signed any letters on issues?? R Auerbach, R Shteinman, the same?-

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  11. It is my opinion as Rabbi Tzadok stated above, that no Poskim would allow coercion when 1) The woman has stolen monies, custody, visitation rights from the husband by utilizing the civil courts to twist his arm and 2) Coercion was always allowed whehn there is no way out. But once a man has deposited a GET, it is incumbent to force her to comply with Bais Din and do as they say prior to releasing her GET. It is only because we live in a feminist oriented society, that corrupted rabbis refuse to acknowledge that the woman has to comply with halocho.

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  12. Da'as Torah, regarding:
    'As you can see from the universal disgust and horror expressed in the secular press i.e., chilul haShem.'

    check this out:
    http://www.usatoday.com/story/news/nation/2013/10/13/rabbis-fbi-divorce-sting/2976271/

    almost supportive!

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  13. I believe that the author of the sefer is Rabbi ZVI Gartner, who is an expert on hilchos gittin. He lives in the Ramot section of Yerushalayim. His brother Dovid, lives in Neve Yaakov...

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    1. that is true - my mistake - will correct it

      thanks!

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  14. Emes LYaakov,

    Since it is clear you reject evolution, what is your take on age of the Earth? Do you go by the sophistry style argument that all the fossils and remains buried that are older than 5700 years were never alive, but just created to show a false history?

    http://www.theguardian.com/science/2013/oct/17/skull-homo-erectus-human-evolution

    ReplyDelete

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