Wednesday, June 10, 2015

Rav Dovid Eidensohn Shiur 11# Even Hoezer – Various Coercion and ONESS with a GET

Telephone conference dial 605-562-3130 code is 411161# Wed night June 10 9:30.

1. If a husband gives his wife a GET and makes a condition that if he does not return in a month the GET is valid, and he approaches but the bridge is down and he cannot come, this is ONESSS but such an ONESS does not invalidate the GET. Kesubose 3A.

2. The above gemora seems to say that a real ONESSS would invalidate the GET, but such an ONESS about a bridge not functioning is something the husband should have anticipated, but other ONESS does invalidate the GET. But Rambam in Gerushin 9:8 seems to say that all ONESS is not counted to invalidate a GET, but a GET made on a condition and the condition is fulfilled the GET is kosher, even if the fulfillment was through ONESS.

3. If there is an ONESS from heaven and not from people, some say it invalidates the GET and some disagree. HaGahose Maimoni Rambam Gerushin 9:1.

4. Shulchan Aruch Even Hoezer 134:5: “If the husband swore to give his wife a GET, he must allow a Beth Din to negate his oath, so that his GET should not appear to be coerced. But if the husband wishes to pledge money to force him to give the GET, he may do this. Because this is not similar to coercion.”

5. But what is the difference between being forced by an oath to divorce when the coercion is only “appears” to be coercion, but not real coercion, whereas if one pledges that if he does not divorce his wife he will give such and such a sum of money, it is fine and does not even “appear” to be coercion?

6. Let us examine carefully the wording of the Shulchan Aruch “If the husband swore to give his wife a GET, he must allow a Beth Din to negate his oath, so that his GET should not appear to be coerced.” Note the word “appear.” The issue is whether divorcing because of an oath makes an “appearance” of a coerced and thus invalid GET. But “appear” means just that, that it is really not invalid, but has the appearance of being invalid. It is not sure if “appear” invalidates the GET in any sense, dirabonon or maybe lichatchilo or not.

7. The Baar Haitiv there says “the oath is like coercion.” He does not say, “The oath is coercion.” Obviously, it is not. But it appears to be coercion, whatever that means.

8. The Taz there says, “Since he willingly swore and obligated himself it is not real coercion, only an appearance of such.” Yes, he willingly swore and obligated himself, but once he is obligated because of his oath, the GET is given with coercion.

9. Again, at the giving of the GET, the husband is faced with a coercion: if he does not give the GET he will have to pay a large sum of money. Why is this not a coercion?

10. The Beis Yosef at the end of EH 154 brings the Ritva. A husband swore he would divorce his wife and gave the GET without negating the oath. The husband then claimed he was forced to give the GET because of his oath. The Ritva says that the GET is kosher. True, the husband must divorce as long as he made an oath to give the GET. But the husband should have found a way to negate his oath or to make a MODAH, a statement that his giving the GET is not valid. Lacking these, the husband must give the GET because of his oath, but why does he have the oath? Because one: he made it, not somebody else. Two, he could negate the oath at a Beth Din by explaining why it should be negated. Third of all, he could have made a MODAH, a statement that would negate the giving of the GET.

11. The Bais Yosef brings a Rashbo VII:40 that would seem to disagree with the Ritvah. The Rashbo has a case where a husband pledged a large sum of money to be paid if he did not divorce his wife. The Rashbo says that the GET is invalid, as it was forced upon the husband by his pledge to pay a large sum of money.

12. The Rashbo says there some rules regarding a GET given under pressure. If we know that he is forced, such as the above case where witnesses and others knew of his obligation and promise to pay the large sum if he did not divorce his wife, such a public knowledge of ONESS negates the GET.

13. However, if the husband has a pressure to divorce and is paid money, we assume that the money won him over and he gives the GET willingly. The amount of money to be paid is not clear in the Rashbo. Some hold that there is no monetary value on a wife but we don’t know what the Rashbo meant, although the Teshuva of the Rashbo in VII:40 is talking about a person who pledged a thousand Dinar which is a large sum.

14. Even if the husband is paid a large sum of money but he was pressured, he may make a Mesiras Modah, to tell two witnesses that he is being forced and does not want the GET to be valid and it is not valid.

15. In such a case of Mesiras Modah, there are ways of negating the Modah such as by saying that all statements of witnesses that he negated the GET will be void.

16. The Rashbo there says there that ONESS of losing money is ONESS to negate the GET even if the husband did not declare his negation, we know he is being forced and the GET is void. [...]

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