Tuesday, December 24, 2013

Rav Herschel Schacter: A ridiculous heter/ Freeing agunah by mekach taus

Rav Schachter - the posek for ORA - provides a cogent discussion of the pitfalls of using mekach taus to free an aguna. 

It is important to keep in mind that Rav Moshe Feinstein clearly states that the negative condition must be preexisting and so severe that no reasonable person would tolerate it - and the spouse must leave immediately upon discovering it. In addition a psak of mekach taus based entirely upon negative reports from the wife - without the husband being directly evaulated by a neutral expert therapist - is clearly invalid and indicative of biased poskim. 
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Making a Farce of the Halacha

Torah Web.org   The Ramban writes (in the introduction to his sefer Milchamos Hashem) that the study of Talmud is not like mathematics. In Talmud study, a halachic analysis is not a geometric proof and its validity need not be contingent upon accurate application of hard logic to unassailable axioms; nor is a halachic analysis deemed invalid only upon demonstration of incontrovertible logical errors or fallacious assumptions. What is significant in halacha is the approval or disapproval of halachic experts, implying the reasonableness or unreasonableness of the argument. One must have a strong tradition in psak halacha (rendering of legal decisions) or one can float so far off as to develop the most ridiculous ideas, all in the name of halacha.

The Torah prescribes the divorce procedure such that the husband must participate voluntarily. When he refuses to participate, his wife has no other means to be free of her husband, and while she remains legally married to him she may not marry another man. This situation, though unfair and tragic for the wife, is essentially the creation of a man who has shown himself to be an evil criminal, and is abusing his wife in this contemptible way. He has made her a virtual agunah as the husband alone has the authority to free her. Over the many years of our history the rabbis have done whatever they could for any woman so trapped in this lamentable predicament. Unfortunately, no categorical or general solution to the problem emerged.

About forty years ago an Orthodox individual proposed a solution. He reasoned that the woman requires a divorce only if she is married. Although annulment is not an option, it may be possible to find cause to invalidate her marriage by finding a fatal flaw in her wedding. For example, the wedding requires that the groom give the bride an object of sufficient value, one that the groom is entitled to give, while declaring his intent to thereby marry her, without deceit in any of the particulars, all under the watchful eyes of legitimate witnesses. If any of these conditions are not met then the wedding is fatally flawed. Likewise, if the bride or groom deceives the other in a material way, the other may legitimately claim that the entire wedding was under false pretenses and thus void. Thinking along these lines, the individual referred to above argues that if the bride and groom had realized that their personalities were incompatible, they would never have agreed to get married. Hence, the marriage was effected in error, lacking the requisite da'as (awareness) for a wedding, and no Get is needed to separate them because they were never married. At the time, Rav Yosef Dov Soloveitchik declared this suggestion ridiculous. As the years went by, the ridiculous has become the sublime. [...]

To declare a marriage a kiddushei ta'us because the wife didn't realize that the husband would be unsuccessful in holding down a job and earning a living is simply unacceptable. To invalidate a kiddushin due to ta'us the halacha requires an extraordinary mum gadol (very significant defect), with a very obvious umdana d'muchach (compelling assumption) that no reasonable woman would agree to marry such a man (see Teshuvos Beis Halevi, vol. 3, pg. 23). [...]

Moreover, even in the case of a sale that was canceled because of a mum, the Rambam wrote (Mechira 15:3) that if the purchaser continued to use the item after having discovered the mum, he cannot later claim mekach taus. Continued use of the item indicates that the level of the ta'us is insufficient to warrant voiding the transaction. Likewise, it is transmitted in the name of Hagaon Rav Moshe Feinstein zt"l, that even in the rare case of an unusual mum gadol, through which the wife would be able to remarry without a get because of the ta'us on her part at the time of the wedding, if the woman didn't walk away from the marriage immediately upon discovering the mum, the halacha of ta'us cannot be applied.

Rabbi Eliyahu Ben Chaim (Yeshivas Rabbeinu Yitzchak Elchanan) published an essay in the Yeshiva publication, Beis Yitzchak (5758), explaining the mistakes of these "batei din", and cautioning the agunot not to rely on such meaningless "heterim". In his essay he quotes Chacham Ovadia Yosef as having said the same.

It certainly is a great mitzva to help an aguna escape her plight, but issuing a heter nissuin (permission to get married) to a woman along the lines of heter nedarim is simply a farce. Let us not make a joke out of the Halacha.

30 comments :

  1. This is rich. Speculating what halachic method was used to free Tamar, & then using the person who you constantly rail against as an authority to bring proofs agfinst your speculation.

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  2. Rabbi Schachter has also stated that no actions may be taken against a husband to pressure him to give a get unless a beis din has acted against the husband, But then, he wrote a letter, acknowledging no beis din had ordered that Aharon give a get, but nonetheless issuing a psak that Aharon be beaten or even killed (and presumably also the parties' child if the child gets in the way) because Rabbi Shmuel Kamenetsky had so ordered. (Daas Torah has previously linked to both the letter and the audio.)
    So, if Rabbi Kamenetsky blesses the annulment, would Rabbi Schachter sign on too?

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  3. More ridiculous than the iPhone loophole?

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  4. To Rabbi Schachter: It is very nice that you proclaim that offering jewish annullments of marriage like water is a farce! However it is you that gives power and recognition to ORA who produce coerced gittin in all cases and now that Epstein / Wolmark have been caught, Ora has no other options left but to introduce annullments! You are therefore indirectly causing ORA to seek such remedies! The fact that you support such an organization and even sign your name as their Rabbinic advisor , makes you an accomplice to their sins. Make no mistake that according to Halocho, there are no neutral positions. You are either with them or against them. When they advertise that a woman is free without a GET, they are proclaiming that she has received an anullment! If you oppose their views, then you must publish a letter publicly and distance yourself from them. If you remain silent, then you are "Nitfas beoso Aveiro"(guilty of the same sin).You have empowered ORA till now and now you are responsible for all their lies or bad deeds.

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    1. Shmuel - would also point the same tarred brush at the haredi Gadol par excellence in Bnei Brak who has allegedly stated that owning an iphone [or android] invalidates a witness for kiddushin and gittin? This leads to the same annullment that is now being alleged, with no hard evidence to back it.

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  5. > nor is a halachic analysis deemed invalid only upon demonstration of incontrovertible logical errors or fallacious assumptions

    I think people can understand why there would be a cynical response to this assertion. A posek bases a psak on the wrong data or makes a mistake in logic but because he's a posek we have to ignore it and do what he says?

    A question about Rav Schachter's piece though: as per Rav Moshe, zt"l, a woman would have to leave a marriage as soon as she decides it was a mekach ta'us. This sounds reasonable but what if the woman has no place to go? No family in the area, no friends who can take her in, no money of her own, small children in the home she doesn't want to leave alone, all those are reasons for a woman to remain in a marriage even after concluding its fallen apart.

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  6. Let's play a game of guess the Heter.

    We know that Tamar would only rely on a Heter if it was approved by Rav Shmuel Kamenetsky. And ORA presumably would only publicize that Tamar is free if Rav Herschel Schachter approved of the Heter as well. From what I understand, ORA has been involved in hundreds of cases, including some with truly disturbed individuals, and not once did they have a marriage annulled with the Haskama of Rav Herschel Schachter.

    Before attacking the Heter, we need to know what it is. Does anyone have any intelligent guesses of what they discovered about Aharon which would get Rav Shmuel Kamenetsky, Rav Herschel Schachter, and presumably other respected Poskim as well to free Tamar without a Get? The correct guess wins the award of best comment of the week. Let’s hear it.

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    1. @ Surprised: So who won the award of best comment of the week?

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  7. “Rav Schachter - the posek for ORA - provides a cogent discussion of the pitfalls of using mekach taus to free an aguna.
    “Rav Moshe Feinstein clearly states that the negative condition must be preexisting and so severe that no reasonable person would tolerate it - and the spouse must leave immediately upon discovering it.
    “In addition a psak of mekach taus based entirely upon negative reports from the wife - without the husband being directly evaulated by a neutral expert therapist - is clearly invalid and indicative of biased poskim.”

    Please edit the above. The second paragraph summarizes an important point Rav Schachter makes in his article. Despite the obvious implication, the third paragraph is not at all mentioned by Rav Schachter, which would deceive and confuse anyone who doesn’t read Rav Schachter’s article. You need to be very clear when you’re quoting Rav Schachter and when you’re quoting other poskim.

    Which posek says the husband must always be directly evaluated by a neutral expert therapist, with no possible exceptions? I’d want to see the written psak as several obvious exceptions come to mind.

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  8. R' Shachter on techeles

    http://www.youtube.com/watch?v=H0isSXmLN0c

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  9. "This situation, though unfair and tragic for the wife, is essentially the creation of a man who has shown himself to be an evil criminal" -

    So according to Rabbi Schachter:

    If a Jewish wife just decides she doesn't like her normal, decent husband, and she demands a GET, and the husband does not want to give up his wife, house, and children, and he is not required to do so by halacha, that husband is an evil criminal?

    A man should divorce his wife even though the Gemara seems to state in several locations that a man with children should not divorce his wife? (I believe R. Dovid Eidensohn has cited these sources).

    Our ancient Torah sages advocated evil by advising a man not to divorce???

    Thanks Rabbi Schachter, you've clearly confirmed for us that ORA's "religion" is utterly contrary to Torah law and values.

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  10. Heter of back in timeDecember 25, 2013 at 4:30 AM

    "The rabbis have done whatever they could", for a true Agunah, which is either if he dissappeard in a war, possibly drowned bemayim asher ein lahem sof, or taken beshevi, as they used to write a legitimate get al tnay leyotzei milchama. Not so a Moredes rebelling on her own free will for no good reason, indeed, that is exactly the meaning of lirtzoinoy because the Torah gave him the authority, and that Torah given right is NOT ABUSE. You cannot circumvent that, no shtar mechira, prizbul, hatoras nedorim, hatoras kaporas, batel beshishim, bensinas taam lifgam, or hefker beis din hefker can do the trick. This is mixing apples with kasha and oranges, with pilpulim shel dofi as if grabbing three people in shul and mashil behatoro. Tomorrow you will cook up a witches brew having her grab a chicken swirl it counterclockwise 3 times shlugging kapora with him, or better yet, take the chasunah film, roll it and play it backwards, and wallah, he takes of the kidushin ring off her finger, rewind the seven circles under the chuppah, they both go home happily lirtzonom from whence they came from, vehakol ba al mekomo beshalom, of course with the whole world as witnesses. Another one had a brainstorm to use the time machine and go "Back In Time". My friend, that is only a purim shpil, vechalomot beAspamya.
    Indeed, a Moredes is in and of itself a criminal, how do you turn tables and make him an eishes potifar, while she is still an eishes ish? I have heard shtussim, but such narishkeiten, I've never heard. This invention will go the same way as the Epstein prods.

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  11. Let's play a game of guess the Heter.December 25, 2013 at 12:53 PM

    @ SurprisedDecember 24, 2013 at 5:37 PM

    ORA YSV shame the husband in public, and is a malbin pnei chavero berabim, of which is the same as SHOFACH ES DOMOI. She now becomes a lebediga almono umiteres lechol odom. HENCE the decree, TAMAR IS FREE and free for all, the same as zonso Tamar kalosecho the kedeisho. Therefore, no need of chosemes hapsulim on a GET of befonay nechtav ubefonay nechtam.

    Here is another genius Heter from the inventors of the Mamzer Factory without the need for a GET. It is known in Talmud the concept of Oni choshuv ke'mes, that is someone poor is as good as dead, as well as the concept of Hefker Beis Din Hefker. A beis din of three Ra Bonim declare Tamar's husbands assets as HEFKER KE'AROH DEMITZRAYIM, he now is considered as deceased, and she instantaneously regains her freedom, ORA declares her FREE, umiteres lechol odom. Veyaasu ken belohotehem, this tactic works the same as the VUNDERBAR PROD STICK alav hasholom. Hashem yinkom domom. If anyone can come up with more innovations and add to the BAND of the FREE, please feel free to do so, vechol hamarbeh harei ze meshuboch. And so it goes. A "GITTEN" Purim und a "GITTEN" Tomid.

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    1. Double kill with one shotDecember 25, 2013 at 5:16 PM

      This is a classic example of Harotzachto vegam Yorashto, literally.

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    2. Just to get this straight:
      Aharon refuses to give Tamar a Get. He is doing nothing wrong. But if we tell people that he is refusing to give a Get, that is shaming him in public?
      Either he is doing something wrong and deserving of his shame or it isnt shame.
      Where is the coercion? Is the coercion is telling him that the majority of people think he should give a Get?

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    3. @ James OF December 25, 2013 at 7:48 PMDecember 26, 2013 at 1:27 AM

      That's easy! Here's how it works, and as straight as an arrow.

      scenario #1

      Cookie wakes up one morning and tells Hubby, I want a Get and get out of here fast. Hubby goes to rabbi saying I have toiled hard, have a family with many children, avahvti es ishti, lo etze chaofshi chinam. She then exercises a few tricks coached by ORA, she moves out with the children creating a new status quo with some new facts on the ground, thereby, disenfranchising him.

      Scenario #2

      Hubby has been henpecked for some years, till one morning Cookie demands a Get or else. Hubby says OK, but we need to talk, we have unfinished business to take care of. Of course by now she has been coached by ORA how to place all her chess players in strategic order to put him in check. Hubby says, not so fast my dear, before finalizing the GET, we need to do it according to the Torah fashion, according to the Shulchan Aruch and Poskim, of which is to settle all outstanding matters, financial, custody etc. and ONLY then and in that order are you entitled to your GET. Various negotiations can and DO go on, while out of nowhere comes a mishlachat malachei ROIM, an Army of lesbians blessed by feminist ORA Ra bbis jumping the gun and to tailgate him, demonstrate in front of his home with PLACARDS as if in REFUSAL MODE, submit biased reports to mass media, half lies, outright lies, besmirching him in front of the whole world, under disguise of Justice to FREE an alleged self proclaimed Agunnah with total disregard to CHILUL SHEM SHAMAYIM BERABIM. This is the M. Operandi to ambush and character assassinate a HUBBY to SHAME him in, thereby forcing a get MEUSSE that is PASSUL, she remaining an Eishes Ish, manufacturing mamzerim. You also must understand that a GET, for most husbands is a PRIVATE matter in any which case, until it is settled and finalized. That, and in addition to the intimidations, harassments, lies and attacking with all kinds of invented schmutz, causes SHAME and great pain to say the least, with total disregard to his Torah given, G-d given legitimate rights. Case in Point, the Doodleson case. This is what has been happening and unfolding in the Doodleson saga while in amidst of negotiations, putting all business aside, prematurely, un expectantly attacking and ambushing in an all out war, and the stench that emanated up to high heaven, caused some to retreat and retract.

      Therefore, until then, he is withholding nothing and he is doing nothing wrong, and the SHAME/ coercing in any which way causes and fuels MAMZER factories. Business was booming, so much so that Epstein invented cattle prods money making scheme, going for USD $100,000 a pop, with a trickle down effect to all parties involved, till FEDS caught up with them. They will all pay dearly for their actions. Same will happen to the TAMAR VEAMNON V'EPSTEIN type of invention. The last thing I heard is, that only BUTTERFLIES are FREE. Kindly, don't make yourself an Agmas Nefesh from your quandry. Just one more thing, with all due respect, please tell ORA to take a hike.

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    4. Decree of FREE eishes ishDecember 26, 2013 at 9:14 PM

      James, can you please ask R' Hexenschuus 'meheichan dantani' ? It is a legit she'eilo. We might be able to apply it to many difficult issues in Jewish life. The Talmud in Chulin states, kol ma deossar lan rachmona, shorei lan kevosei. That is to say, everything the torah forbid us, there is something equivalant that is Mutar, and gives a short list, e.g. chazir - shorei lan kavrei, a known fish found in naharot bavel as of today. Suppose we get a hold of this grandiose Matir Issurim open sesame code, we put Epstein & Goon Squad inc, Bossor Bossor-Kosher Kosher, O'u, O'me, and O'all hechsher factories and mamzerim factories out of business. We then move on and start IPO, go on the Stock Exchange, making off at least twice as Madoff made off. We can call it WMD's, Epstein's Bar, Magic Wand, Cattle Prod's, FREE Eishes Ish - FREE Tartei mashma, Kosher Mamzerimlach, Kosher Davar Achar beheter meah vachamishim ra bonim, and who knows, do away with kol haTorah Kula. After all, Torah says voCHAY bohem= you should leibetz around 'machen a leben'. How do you think the Kolko's, CH's, Zimbawe - Quebec - and all other fugitives made it. They make a leshem yichud Baruch Matir Issurim, and a secret ORA 'lachash', and you are in the land of the FREE, kappish.

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  12. Correction - my previous post citing R. Levin's video may have stated that Mrs. Friedman was the Plaintiff in court. This was an unintentional error. I believe the video stated that Mr. Friedman was the Plaintiff after he obtained a heter to recover his child in court.

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  13. an interesting article on a number of attempts to free agunot - from the Geonim, down to the Rackman court

    http://www.mucjs.org/2001jlpf.pdf

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  14. Ramban may have said that Halacha is not like mathematics, but R' JB Soloveichik writes that it is, in his book Halachic man.

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  15. (Maybe this comment will get through this time, we don't want to antagonize ORA too much.)

    The excellent video linked to below exposes the halachic violations of the feminist YU ORA cult, a cult waging war on Hashem's Torah and on Jewish fathers and Jewish families.

    The video discusses the Tamar Epstein case but in fact the cases repeat themselves over and over with decent Jewish fathers having their beloved children torn from them, while their moredes wives are aided and abetted by ORA.

    http://www.youtube.com/watch?v=NhFQA1VP5Fs

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  16. Excerpts from the video

    http://www.youtube.com/watch?v=NhFQA1VP5Fs

    "She (Tamar Epstein-Friedman) ran away sh'lo k'halacha...the child belongs to both equally...Mrs. Friedman started to run out the clock...the court case didn't take place for a year and half, by that time the court said we'll leave it there (in Philadelphia)...Mr. Friedman had followed the rulings of the Baltimore Bais Din...the Bais Din asked both of them to withdraw from the court case...Mr. Friedman was willing to withdraw, Mrs. Friedman refused...the court found that Mrs. Friedman's approach is rooted in spite...Mr. Friedman has the right to think he's being alienated from his child...Mrs. Tamar Friedman never listened, never took it out of the court...these YU thug tactics of ORA that R. Schachter allows-does R. Kaminetsky also allow?"

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  17. Interviews with Roshei Yeshiva
    http://www.scribd.com/fullscreen/187285765?access_key=key-s0da1ewadku5ryjzwpf&allow_share=true&escape=false&view_mode=scroll

    very interesting - R' Yaakov Weinberg is clearly a genius.

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    1. just made that into a post - thanks!

      http://daattorah.blogspot.com/2013/12/professor-helmreichs-interviews-with.html

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  18. ORA holds out Rabbi Hershel Schachter as ORA's posek. Does Rabbi Schachter stand by ORA's claim that the marriage is somehow annulled?

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  19. Rabbi Willig was at YU this past Shabbos. At an event on Friday evening at which Rabbi Willig was taking questions, someone told Rabbi Willig that Rabbi Schachter had asked the person to ask Rabbi Willig what had happened in the Epstein-Friedman case and whether the marriage was annulled under Jewish Law.
    Rabbi Willig responded that as far as he was concerned the marriage cannot be annulled under Jewish Law.
    This raises the question of whether Rabbi Schachter is actually the posek for ORA, as ORA claims. The audience seemed puzzled as to why Rabbi Schachter had asked someone to ask Rabbi Willig what had happened. If Rabi Schahcter is ORA's posek and ORA operates under Rabbi Schachter's approval, why would Rabbi Schachter ask someone to ask Rabbi Willig to explain a public pronouncement by ORA? .

    This leaves open the question: what is Rabbi Schachter's position on the annulment?

    Does ORA's long list of rabbinic endorsers, agree with ORA that the marriage is annulled under Jewish Law?

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  20. Rav Eidensohn - Without referring to any specific actual case - theoretically if a woman is abused in a marriage, and I'm talking about physical abuse such as being hit (or any other serious cases of abuse) - could the marriage be annulled according to Rav Moshe Feinstein ZL? If a woman was told the day before the wedding that she would be punched in the face and regularly be subjected to violence - would that surely be a case of a Mekach Taos or not? The fact that a woman had been abused and did not complain is immediately is usually because the abuse is small at first and escalates and the husband creates a psychological bind on her from being able to do it. Abusers make the woman believe she deserves the abuse - its as if she is a prisoner and her free will has been taken away from her.
    Have there been actual cases where a woman has been freed on this basis?

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  21. According to what Rav Moshe Feinstein writes in the Igros Moshe - the cases you present would not justify a declaration that there was never a marriage.

    I am not aware of any case that a posek declared there never had been a marriage because the husband was abusive.

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  22. According to what Rav Moshe Feinstein writes in the Igros Moshe - none of the cases you present would be declared as not being married and would not need a get.

    Furthermore I am not aware of any case where a major posek said that wife beating proved that there was never a marriage

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  23. Mekach Taos requires a very high burden to be reached, both in the very limited type of circumstances that qualify for it as well as the burden of proof. It is a halachic standard that is met only exceedingly rarely.

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