Monday, December 23, 2013

"Mamzer Factory" or "Making Mamzerim" - explaining the use of these terms

I received a letter strongly attacking my brother and others who used such terms as "making mamzer" for a beis din that gives a get after the husband has been strongly pressured.

This is a partial excerpt of the letter:
PLEASE ask you brother and others to stop using the expression “ making mamzerim” it is beyond idiotic and is just inflammatory if you study the sugyot on BB47b 48a and gittin [88 correction] 68b; rambam 2gerushin20 with the KM you will find that no matter how compulsory the Get, it is pasul NOT batel on a torah-level she is divorced, even if we make her arrange another Get on a torah level there can be no mamzerim here look at the language of the rambam: even if the BD are wrong,even if they are amateurs, the get is “merely” pasul [there is no such thing as mamzerim drabanan]
now you will say “we don’t hold like the rambam , he’s a daas yachid" he’s not! all the geonim hold like the rambam, just that rabeinu tam couldn’t possibly know that we hold like rabbeinu tam. true, so we don’t currently follow the rambam, but making mamzeirim??!! control yourselves.

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Guest post replying to this letter by Rav  Dovid Eidensohn [a full discussion of mamzerus and force is found in the article at the bottom in scribd]
I have written previously that coercing a husband to divorce in a way that is not sanctioned by the poskim makes mamzerim. Somebody asked if this is so how can I explain four things: BB47b,Gittim 68b,Rambam Gerushin 2:20 with Kesef Mishneh. And he adds, “You will find that no matter how compulsory the GET, it is pasul NOT botel on a Torah-level she is divorced, even if we make her arrange another GET on a Torah level there can be no mamzerim here. The writer adds other remarks and then suggests that when it comes to mentioning that one who is coerced to divorce produces mamzerim I should “control myself.” Well, I will try to control myself, and I will try to respond to the above points.
Let us begin with the last item and work backwards. First, the Rambam and the Kesef Mishneh. The Rambam says that a coerced divorce is void only by rabbinical decree and is kosher by the Torah’s standards. My article answers this with the Kovneh Rov’s teaching that the Rambam agrees that a coercion to divorce only helps in the Torah if the husband accepts the opinions of the sages who consign him to coercion. “It is a mitzvah to obey the sages.” But if the coercers are not respected by the husband, say in the cases that we discuss here, that some rabbis demand that people humiliate the husband and force a GET, and I tell the husband that the Rashbo, Radvaz, Beis Yosef and Chazon Ish forbid this and that the coercing rabbis are ignoramuses or worse, in such a case the husband does not obey the coercing rabbis and does not think they are his authorities. Therefore, the GET is invalid by the Torah not just the rabbis. And if the GET is invalid by the Torah, the children are mamzerim diorayso.
Next to last is Gittin 68b. There is nothing there about Gittin. It is full of higadito.
Next are two pages of gemora Bovo Basro 47b and 48a. I don’t know exactly what he wants with these two pages. I don’t want to invent his question and then answer it if he may have another problem. Let him say clearly what his question is. The best I can do is to say that he found on these pages a source for the Rambam who says that if the husband respects the rabbis who coerce him then the GET is kosher by the standards of the Torah. However, if the husband does not respect the rabbis such as in the cases I am dealing with the Kovna Rov says that the GET is not valid by Torah standards. Therefore, the gemora says that coercion can help because “it is a mitzvah to obey the sages.” But if the husband does not respect the sages, especially if his rabbis tell him he should not divorce and should not be coerced, the GET forced on him by the rabbis he does not respect is invalid by the Torah’s standards. Furthermore, the major source for this law of coercing a GET is in Gittin itself, where the gemora clearly disagrees with the Rambam’s opinion and the pages in Bovo Basro mentioned above. Therefore, major poskim say that the final opinion is that the GET is invalid by the Torah standard, as I present in the article.


60 comments :

  1. There are many publicised cases, such as those appearing on this website, where the woman is not willing to negotiate terms with the Husband - eg they will not agree to joint custody. It seems that the number of cases where the husband outright refuses to give a GET, are fewer than made out by the publicity stunts. Thus it would appear that many f the problems are created by the arrogance and inflexibility of the woman claiming to be the victim.

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    1. eddie; you are absolutely correct we must stop ORA and their fake agunot or we will have so many more of these problems and so many more mamzerim

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    2. I have a friend whose ex-wife took his kids away from him, and bribed the Dayanim to find in her favour (in Israel). The father has to go through both the Batei Din and the secular courts for some issues. He gave the get already - which may have been a strategic error. So it is not a case of agunah, but just a dirty divorce, with corrupt dayanim. So my views on these matters have changed very recently - and now i see my friends stan and ELY may have been right about feminists and arkoyos, etc.

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    3. Eddie and Shimi,
      Now that we have the world rocking with the terror of a new breach in halacha, that it seems that somebody is "free" without a GET, we should blame this on the creeping tide that began with the rabbis who twisted the Torah to coerce husbands, that signalled that today, if the woman needs a GET, forget about the Torah.

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    4. r' dovid you are absolutely correct and when someone asked rmk if he agrees that the post article was a chilul hashem he said i don't know i'm not a posek

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  2. R' Dovid - can you give us that Kovna Rav source? If possible - in full.

    It's important to flesh out these issues as clearly as possible.

    thx

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  3. Thank you Rabbi Eidenson for making the public aware of mamzeirim. Unfortunately the shidduch scene is already under crisis and now to top it all we must be careful in dating divorced women to ascertain how they procured their Get. A website http://mamzeralert.blogspot.com/ has been setup for just that to warn the public of potential mamzers!

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  4. the question is NOT if the get is kasher,it is not;
    but whether the children are mamzerim.
    who cares which acharon the husband wants to follow
    the children have a kim-li for the rambam and plenty of achronim.
    a get was given, is it kosher al pi din torah ? that is the question.rambam and all the geonim say “yes”.
    the sugyot properly understood explain why.
    the fighting spouses can spend the rest of their lives fighting, that is not germane to this issue

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  5. Your entire argument rests on the Kovno Rav. Not the strongest argument for declaring someone a mamzer.

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    1. James,
      A GET invalid by the Rambam even dirabonon makes mamzerim dirabonon. See EH 4:16 that a mamzer dirabonon may not marry a mamzer diorayso or a kosher Jew but only another mamzer dirabonon. The Kovneh Rov is only needed to show that they are mamzerim diorayso if the husband didn't accept the Beth Din as his authorities.

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  6. Dear Rav Dovid,

    What about the authorities who learn the Rambam kpershuto and not like the Kovneh Rov? Many authorities don't read into the Rambam like the Kovneh Rov does that it is only valid if the husband respects those rabbis doing the coercing.

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    1. M,
      Who are those authorities? Do you have sources that I can look up?

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    2. M,
      The ruling of the Kovna Rov is based upon a gemora in BB that a GET coerced can be kosher because the husband accepts that "It is a mitsvah to obey the sages." Now, obviously, if the husband despises the rabbis who invent halacha and dispute with his rabbis who know the halacha, why should he accept the inventor rabbis? The Chasam Sofer says clearly that the husband always accepts the most lenient opinion. Certainly when some rabbis say he is not to be coerced and some coerce him, the husband does not accept the coercion, but the opinion that he is not to be coerced. SWTherefore, says the Chasam Sofer, the GET is invalid diorayso. SEe Chasam Sofer EH I 28 and 116, I think.

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    3. M,
      Those who learn the Rambam kpeshuro consider the children mamzerim dirabonon who can only marry mamzerim dirabonon. See EH 4:16 I believe.

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  7. One point the author of this question is neglecting, is he is assuming it was a valid beis din and bona fide rabbis that did the coercing. But in many if not most cases the coercion is done by thugs like ORA who are NOT a beis din and there never was a beis din authorizing the coercion.

    Coercion comes in many forms. Coercion can include economic coercion; public peressure coercion; embarassing coercion; rallies; newspaper denouncements; etc. All of these things are forms of coercions.

    And all of these type of coercions, which does NOT come from a bona fide beis din of three dayanim that formally heard the case with both sides present in court and ruled permitting coercion, have no basis or standing as being valid coercions. Thugs cannot decide to allow coercion. If they do it 100% invalidates the "Get" even according to the most liberal reading of Rambam.

    The only time we can even discuss whether a coercion is halachicly valid and avoid mamzeirus, is if a bona fide beis din of three dayanim that formally heard the case with both sides (including the husband) present in court and ruled permitting coercion. And a bona fide beis din would certainly exclude the kangaroo type "beis din" of Epstein and Wolmark who made a so-called beis din not only without the husbands present in beis din, but without even notifying the husband that there will be a beis din session! (As in the FBI case there in fact was no real beis din, and yet Epstein and Wolmark ruled it is okay to coerce the husband they never met, never spoke to, never invited to their kangaroo beis din and certainly was never present when they had their kangaroo session permitting force.)

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    1. Great point. According to ALL shittos, if the coercion was done without a Bais Din of Three Dayanim ruling coercion is permitted, then the resulting Get after such an illegal coercion is a Get Me'usa, and invalid Get.

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    2. The Chazon Ish writes that a Beth Din that ordered a GET, even without doing any coercing, and the coercion was not deserved by Torah law, that the GET is invalid diorayso for two reasons. One, their order to the husband to divorce constitutes coercion and the law did not require coercion, so their order was invalid, and second of all, had the husband known that the rabbis were wrong, he would not have given the GET, so the GET is invalid diorayso because it was given as a mistake of the husband who relied on the rabbis who erred. See Chazon Ish EH 99:2 para 2.
      There is a great error that people make that a Beth Din can order someone to give a GET even if the halacha is that the husband is not obligated to divorce. According to the Chazon Ish, such a GET is so invalid that the children born from it are mamzerim dioorayso. Again, Beth Din cannot create halacha, only reveal it.
      But what if Beth Din asked the couple when they came to Beth Din if they would accept the ruling of Beth Din even it was not based upon halacha? This is an important question because such is done in some Beth Dins. But if the husband decided he did not want to listen to the Beth Din, or even if he agreed to listen to it, but only because of their ruling, it would be interesting to think how things should play out. We are dealing with a possible GET invalid by the Torah and such would need powerful proofs to validate the GET. Of course, there are people who are so wise that they don't need proof. Whatever they think, that, to them, is the word of HaShem.

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    3. still waiting for the Kovna Rav source....

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  8. Where is the teshuvah od R' Yitzhak Elchanan published?

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    1. If you read my article published here by clicking it on you will find the sources for my opinions. This particular material is in Beer Yitschok Even Hoezer 16:3.

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  9. Can you please tell us where the teshuva of r' Yitzhak Elchanan is published?

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  10. observer,
    First of all, there are mamzerim dirabonon, as we find in Shulchan Aruch EH 4:16. Therefore, even if the Rambam is right that the coerced GET is only posul dirabonon the children are mamzerim dirabonon and may not marry a Jewish woman who is not also a mamzer dirabonon. He may not marry a Torah mamzer and may not marry a kosher Jew. So the situation, unlike your picture, is a complete disaster..
    But in the article appended here I show that even according to the Rambam, the forced Gittin made by rabbis the husband does not accept as authorities are invalid by the Torah. This is the opinion of the Kovne Rov, the Gadol haDor a hundred years ago, because the husband does not accept the rabbis who coerce him as his rabbis or even rabbis who know the proper halacha, because they don't know the proper halacha and his rabbis tell him that, if so, the GET is invalid by the Torah and the children are mamzerim diroayso. If there is a doubt if the husband should be coerced because of different opinions, the Chasam Sofer says that any GET coerced because of one of the two opinions is invalid because the husband relies on the lenient opinion and the GET is worthless by the Torah standards and the children are mamzerim diorayso. The Shaar HaMelech agrees with the Chasam Sofer that all doubtful coercions are invalid. People who don't know hilchose Gittin suddenly spout and shout things opposite from what is says clearly in Shulchan Aruch.
    This business of bending the Torah and inventing a new one did not start now, it started before and I have to write a separate article about that. Again, some big names are involved, and the story of that and today must be told, if my brother will allow me hopefully. Especially today when we have the Friedman situation where she is free without a GET and probably some Orthodox rabbi told her it was fine. Where will it end? And if my brother and I don't produce the facts, there will be a huge problem and many sad children.

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  11. Sources- from R' Shaar-Yashuv Cohen- Techumin V.11
    אך כבר פסקו גדולי הדור האחרון שלא כדעת חת"ס, עי' שו"ת היכל-יצחק אהע ח"א סי' א, שכתב על פי מה שפסק ה"ר יצחק אלחנן בעין-יצחק ח"ב סי' לה, "שהבעל אע"פ שידע שיש פוסקים שלא לכוף, כיון שהבי"ד פסקו לכוף, נתרצה, משום דמצוה לשמוע דברי חכמים שבדורו." וכך העלה להלכה בעל חזון-איש (אה"ע סט,כג): "הוראת החתם-סופר אי אפשר לקיימה, אלא לסמוך על הפוסקים, דבמאיס עלי – כופין. וכבר כתב הרא"ש בתשובה, דאלו שהורו כן – מה שעשו כבר עשוי.

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    1. Dan,
      It is very good material, and I won't go into it now. But let me say this. I once asked Reb Yaacov Kaminetsky if today a talmid chochom can argue with the Chasam Sofer. And he told me that today nobody can disregard the Noda Biyehuda and the Chasam Sofer, even if they have proof because these two were accepted by all Israel. He said that the Mishneh Berurah and Chazon Ish were not in the category.
      The biggest talmid of the Chasam Sofer was the Maharm Ash who was constantly challenging his rebbe's opinions. The Chasam Sofer said that he never had a talmid who taught him so much with his challenges as the Maharam Ash. But once, the Chasam Sofer uttered in frustration, "True, he has a good question. But does he not know that this is my opinion?" Whatever that means, it means that the Chasam Sofer is a good target, and knew it, and felt he was right anyway. Probably nobody ever had as many great rebbes as the Chasam Sofer, who f om childhood was constantly at the side of Reb Noson Adler, the Hafloh, etc. At a young age he was already a master of Kabbala. Reb Aharon Kotler once argued loudly against a Chasam Sofer. Something happened in his family, and he blamed himself for talking too loudly about the Chasam Sofer.

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    2. Reb Dovid, it is a nice explanation, but I don't see how you can claim that the Buck stops with a certain posek, and beyond that we cannot argue. If so, you might as well go back to Rambam, or Moshe. I wish we still had the Chatam Sofer today to guide us, as we certainly need a great leader and Genius. But we have to make do with who the judges are today.

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    3. There are many authorities that hold that the child of a forced get is a mamzer - despite the Rambam's ruling to the contrary. As these are scatterd around in the Blog let me repost some of them.

      Otzer haPoskim (E.H. 77b Kuntres Kefiah b’Get Os 8): If the husband was forced to give a get when the wife claimed ma’us alei – is the Get kosher bedieved? The Magid Mishna (Hilchos Ishus 14:8) after he writes according to the authorities who say not to forced the husband to give a get in a case of ma’us alei – says that these authorities would say that even if the wife remarried because of the get – she would have to leave the new marriage. His words are cited by Rivash (104) and Chelkas Mechokek (5). This is also written in Sefer haYashar of Rabbeinu Tam(Teshuva 24) and in Shut HaRashba (1:573) and that which attributed to Rambam (105). In the Chidushei HaRamban (Kesubos 63b) he writes, “Whoever listen to someone who rules like that and does an action to force the husband to give a get – is completely mistaken and increases mamzerim and permits a married woman to remarry and it is as difficult to the world like the men of the generation of the Flood. The forced get is a serious problem because it increases mamzerim...” And even if he is a talmid chachom erred and forced a get it judges as not being a valid get and she can not get married...

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

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    5. Even for Rav Ovadia Yosef it was not simple to declare that the halacha is like the Rambam - except for Yeminites who have fully accepted it.

      Yabia Omer (E.H. 3:20.34): We learn from all this that we have mentioned that we have found that many of the great and mighty of the Rishonim held like the Rambam that we force the husband to divorce his wife when she claims ma’us alei. We also note that there was a decree by the Saboraim to force a get for ma’us alei. The decree was enforced until the time of the Gaonim – a period of almost 600 years. They did signifcant things in order to force the husband to divorce when she said ma’us alei. It is true however that many of the poskim did not agree to this and this includes the Shulchan Aruch (E.H. 77) who says not to force a divorce. Nevertheless when there are other significant factors for a divorce then we combine them and rely on this in practice. This approach to force a get in ma’us alei is particularly relevant for Yeminites who have never deviated from the rulings of the Rambam in everything he says. They already have had the practice in Yemen to force the husband to give a get when she says ma’us alei – in accord with the view of the Rambam. Therefore it is appropriate that they continue this practice here in Israel to retain their normative practice. In addition in the present case there were witness that the wife was forced into marriage. Despite her resistance to marry this man her relatives forced her with irresitable force and trickery to marry him.

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    6. part II of R Ovadia Yosef

      The view of the Rashbash is well known that in such a case we force the husband to divorce her. There are many Achronim who say to rely on the Rashbash in this matter to force a divorce. In particular where there are other doubts and double doubts that can be combined. The words of the Rashbatz are well known, “Even though there are in the teshuvos of the great Achronim rulings that the husband should not be forced at all in the case of ma’us alei, nevertheless we are not insignificant authorites and this issue of divorce is dependent on logic and commonsense. A judge can only make rulings based on what he sees.” We see a simlar statement in Yachin v’Boaz...So even the Rashbat who accepts the view of the poskim who disagree with the Rambam – agrees that when there are other significant facts that one can be lenient and follow the Rambam...In another teshuva I go into detail to show that there are a number of poskim – both Rishonim and Achronim – that say that if the beis din rules that the husband is forced to give a get according to various poskim – even if they are mistaken – and thus it is a get me’us – the get is only rabbinically invalid. And so sure with the type of coercion which is done today which doesn’t involve beatings but only imprisonment – which has nothing to do with the imprisonment of previous ages – that makes it only a double rabbinic doubt. And according to many poskim we can act deliberately lenient in a case of rabbinic doubt and surely when it is a double rabbinic doubt. And this is surely true in an emergency situation involving an aguna such as this. And it is is infinitely more so in the case of ma’us alei in which many poskim are lenient but according to the straigh law and also because of authoritative decree. And even the Rosh who disagrees with the Rambam’s position writes that bedieved if the husband had been forced to give a get – then it is done already and we accept the get as valid. The Rashbatz says the same thing. And a woman who had been divorced with this forced get can get married l’chatchila. So surely in our case where the marriage was coerced that the get can be forced l’chatchila. In addition the is a basis in this case to question the validity of the marriage itslef since it was done through threats and as a minimum he definitely acted inappropriately in how the marriage was done. So even though we are not going to annul his marriage nevertheless it is an additional basis to force the get. In addition the wife is a very young woman and she is alienated from her husband – there is a very real danger according to what the beis din has observed that she might degenerate morally and go in an immoral path if her hopes for a get are dashed. Given that she has been chained for many years as an aguna. We have already mentioned that Rav Chaim Palaggi said, “In such a case to force the husband to give a get. There are other poskim who say we should be exceedingly lenient in such cases to prevent her going into an immoral path and that she should reject Judaism – especially when she is so young.... And especially when it looks like she will remain an aguna her whole life – it will definitely lead to disaster. And surely in modern times when immorality has increased and modesty has decrease.”... An additional factor is that after beis din has issued a ruling that the husband must give his wife a get there is an issue that there is a mitzva to listen to the words of the sages.

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    7. part III Rav Ovadiya Yosef

      And so even according to the poskim who disagreee with the Rambam they would agree that the husband has an obligation to give a get. The husband continues to be stubborn and rejects all suggestions of the beis din to resolve the issue. He just refuses to listen. Also the woman said in front of beis din and her husband that she has run out of patience and she threatened that if she isn’t divorce she will go in the ways of sin. She apology later was done solely at the direction of her lawyer. The beis din thought she was serious and not an idle threat. There is also absolutely no chance that she will agree to return to her husband and give him another chance despite gret efforts to placate her with pleas and expensive gifts. She repeated refused to consider that option. She definitely will never change her mind. Therefore when all of these facts are combined, we rule with the full authority of beis din that the husband is to be forced until he says he is giving the get willingly.... And given that he is stubborn and has hardened his heart he was not likely to comply by the mere fact that the beis din say he must give a get. Therefore he was taken to prison by the government forces in order to force him to comply with beis din’s ruling. After he sat in jail for a number of days he agreed to divorce his wife. That was arranged by this court... Therefore the woman is free to marry anyone she wishes – except for a cohen...[

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    8. Listing these sources are a great service, Y. koikh'ekha. How can I get the originals, all listed together?

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    9. RDE, certainly ROY is a big enough gadol to rely on?

      Also, couldnt all women go to a Yemenite BD? The Yemenite Batei Din always held like the Rambam and need not tailor their psak to the parties. Sounds like a loophole in this modern world.

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    10. Please read the teshuva of ROY I posted above - even with Yeminites it is clear that he had difficulty declaring force valid. It is clear that he doesn't view going to a Yeminite beis din a valid solution for a non Yeminite.

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    11. Besides ROY saying that a non-Teimani cannot go to a Teimani B"D for this purpose, even if she could her husband has the right to reject accepting the jursidiction of the B"D she chose and instead demand Zabla.,

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    12. "Please read the teshuva of ROY I posted above"
      Are you referring to parts of the teshuva not translated on this blog? There is nothing in the parts you posted which conclude what you are concluding. It certainly doesnt claim that mamzerut is a result.

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    13. DT - again, could you arrange for me to see the Hebrew originals, organized as you have in English?

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  12. The hypocrisy of these MO biryonim is without precedent. The BDA officially hold and publicly state that Rav Gestetner and Rav Abraham dont follow normative halocho but when others hold the same about the BDA we hear protests.

    Get real already.

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  13. What would you say to a B"D that follows piskei HaRambam and uses Maus Aly as enough of a reason to force a get. Would you say the resultant children are mamzerim?

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    1. Yes, they are mamzeirim m'doraysa according to the other poskim including Shulchan Aruch, which is how it is paskened.

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  14. Stan I checked out the information that you were given and it is not accurate and there are many distortions. Furthermore he is in good health and fully lucid and no one forces him to take positions he doesn't believe in.

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    1. I was told that the situation was not black and white and that it can not be summarized in a few sentences. More than that you will need to speak to him about it.

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    2. What is this in reference to?

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    3. What kind of men are you that you want to keep hold of your wives for spite?
      You all turn our religion to suit yourselves and still live in the Middle Ages. Please stay in America. Do you come to Israel. There are enough of you here already.

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  15. Dan Eisenberg,
    A community that follows the Rambam has no problem. Otherwise, all of the Sefardic children would be problems. I spoke to Rav Elyashev zt"l about this. The Rosh came to Spain from Germany and his children married Spanish Sefardic children. But these children descended from people who for generations had done forced GETS that we don't recognize today. But since the people then held the Rambam as the Rov, it "was a mitsvah to listen to the sages." The Rashbo has a teshuva on this I think 263 that Kovode haTorah means that each community honors its Rov even if others disagree. The Rov in Vilna once forced the Vilna Gaon to eat something th Vilna Gaon said was treifeh. That was kovode haTorah, but a treifeh candle fell into the food and the Gaon was saved. The statement of the Rosh that those who did as the Rambam did it and there is no mamzeruth refers only to communities that held completely like the Rambam. But today the children would be mamzerim. If an individual community today would decide all of its halacha issues as the Rambam, that would be an interesting question. But that is extremely unlikely, as there are no rabbis who would establish the community who themselves did everything like the Rambam. Those days are gone. And just to do like the Rambam in one law to get a leniency is wrong.

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    1. Just to clarify, it is not a chiddush of the Rambam. It was the Geonim. That was the mesorah received by the Rambam. Those who disagree are reforming the mesora.

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    2. R. Dovid Eidensohn,

      Thank you for your informative halachic explanations.

      However in regards to the Rambam's alleged psak that allows forced Gittin,
      the Rambam clearly states in Hilchos Ishut 14:8 "She is not entitled to anything that belongs to her husband. She should remove even the shoe on her foot..."

      Can any posek today honestly claim that the Rambam would allow a coerced GET, in these common situations?
      - the wife sues her husband in archaos?
      - the wife ejects husband from the home with a court order?
      - the wife has husband jailed using bogus DV charges?
      - the wife abducts the children and prevents the father from seeing them?
      - the husband deposits a kosher GET in an anti-feminist Chareidi Bais Din, and the wife demands another GET in another Bais Din?
      - the wife engages ORA goons to destroy the husband's business or employment?

      Reliance on the Rambam's psak in most situations today seems quite fraudulent.

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    3. as far as i can tell no one suggested rely on the rambam lhalacha.
      however, bdieved, the rambam's psak prevents any suggestion of mamzerut

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    4. it clearly doesn't as the teshuvos I posted above state - see Otzer HaPoskim

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    5. James,
      The Rambam and the Geonim are two different opinions. The Geonim wrote clearly in their time that the opinion of allowing a woman to force a GET was not Talmudic but a creation in the time of the Geonim because of certain social emergencies. Rambam, on the other hand, feels that the right for a woman who despises her husband is a diorayso. The right of the Geonim to make such a law applied only to them because all Israel accepted the Yeshivas of Babylonia as the word of the Torah, but today nobody can do such a thing.

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    6. Emes LiYaacov,
      The Rambam does not talk about the cases your present. You feel he would agree with you but there is no proof of that. The Rambam says one thing, that a woman is not a slave and if she can't stand being with the husband he must divorce her. Now, if she did sinful things, she is wicked. But the Rambam does not say that wicked women do not have rights. For that we must have proof.

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    7. Ben Torah,
      I am amazed that in this day and age there are still people who own a Shulchan Aruch!

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  16. Eddie,
    Do you reject the Chasam Sofer and the Vilna Gaon because of the opinion of some rabbi living today? What rabbi do you refer to, besides me?

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    1. I don't reject either of them. I am saying that in general, there can be new interpretations. They may be more strict or less, but there is continuity. But perhaps I misunderstood the Teshuva that was cited of r' Hacohen - did the Chazon Ish dispute the Chatam Sofer?

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  17. Eddie,
    Continuity does not mean there is a new Shulchan Aruch every fifty years.
    I will tell you a story I heard from a major dayan in the past generation, who was a close student of Reb Moshe Feinstein zt"l. After WWII there were many defaced Torah scrolls, with Nazi filth. Some felt that the Torah scrolls should be burned to protect their honor from the filth, and some felt that it is wrong to burn a Torah scroll. Reb Moshe's Yeshiva would publish Torah material from the students, and this dayan who then was a major student was asked to submit his material. He wrote a Teshuva about the defaced Torah scrolls. The editor of the journal was shocked to see that the student had paskened differently than Reb Moshe on that question. He went to Reb Moshe for guidance. Reb Moshe said, "Did he bring proofs?" If so, publish it. But the editor refused. Thus, latter rabbis if they have solid proofs may say their opinions, but if they disagree with the greats, maybe people won't publish their material!
    Reb Yechezkel Abramski as a young Rov wrote a Teshuva where he argued with the Kovna Rov, the Gadol HaDor, about a GET. No sooner had he finished it, then the police came and took him to Siberia. He felt that this was a punishment for his arguing with the Gadol HaDor, especially on a GET. He repented in Siberia and one day felt that he was about to be released, and he was released. Anyway, arguing is not a sin, but...

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    1. Eddie,
      Rabbi Abramski, as mentioned before, was sent to Siberia. The new people there were told to remove their shoes and run on the frozen turf. Rabbi Abramski prayed to HaShem that since he was a sickly person and could not survive the cold the way they were treating him, he was not to be punished for violating health laws and running barefoot on the ice and snow because it was coerced. Years of Siberia never made him sick after that prayer. One day he sensed that the Kovneh Rov smiled at him. Soon afterwards he was issued papers for release and sent to the train station. Somebody, an official, approached him and asked for his train ticket. The man then took his ticket and gave him another one. There was nothing Rabbi Abramski could do. He noticed that the official was looking around to see if anyone noticed what he was doing. Then the official explained: Your ticket is for a car without heat. A few days of traveling in it kills most people. This ticket that I gave you is for a heated car.
      Finally, Rav Abramski travelled away from Russia. He met Reb Elchonon Wasserman on a train and Reb Elchonon was not the slightest bit surprised to see him. When asked about this Reb Elchonon said, I was with the Chofetz Chaim on such and such a day, and he uttered, "The Bolsheviks could not destroy Rav Abramski" and he was released. So I know you were released. That day the Chofetz Chaim uttered his remarks was the day Rav Abramski was released.

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    2. I think I understand what you are saying - if we passionately hold a position, then we can find a great Gadol of a previous generation to support the position, we can say nobody is so great today. Conversely, when we disagree with a previous Gadol, eg the Rambam, the Gra etc, we bring a sevara or evidence form a modern source, or Kabbala to justify our position.
      I think it doesn't matter what the debate is, this is human nature.
      If someone has a good reason to argue even with the Gadol hador, in scholarly fashion, perhaps it would be listened to by the Gadol. That is what the Gra said.
      There is also the difference between a layman and a pure Talmid Hacham - the hacham will learn systematically all the sources and then make a decision. A layman, or biased Rav will start with his desired position, and then argue to reach it.

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    3. Eddie,
      I don't accept what you interpreted in my remarks, because the idea that if we believe in something we find a gadol who said it and accept that is not valid in all circumstances, such as when there are other opinions. If there is an argument among great rabbis it is quite a trick to deal with the way to behave. This requires a scholar who knows the general rules of dealing with disputes of earlier authorities and who knows the subject on his level, and after he finishes with that, he should check with others, maybe a few authorities.

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    4. If someone is like Dayan Abramski, then yes, everything they do is l'shem Shamayim.
      On other debates, not sure people belong to an ideology because the objectively studied all the sources. Do many people leave Satmar because they learn according to the Arizal the 3 oaths are no longer valid?
      I had a conversation with someone who had become totally secular (ex satmar) and although he had terrible things to say about abuse in that community, he was still totally anti-Israel.
      So great scholars maybe - but even then i am not sure it goes all the way.
      Was Rambam anti mysticism / anti-astrology because he had a strong shitah for learning Talmud that way, or was he pre-disposed to arabic-Greek philosophy, and saw rationalism as being the way to get to Emes?

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  18. Eddie,
    You are looking into different worlds where nobody lives today and you want to understand them. Good luck. Somebody once said, Everybody loves the Rambam, because everybody can find some aspect of his work that they understand and admire. Does this mean the Rambam was the person these people admire? I don't know.

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