Wednesday, June 3, 2015

Rav Dovid Eidensohn: Telephone Conference Shiur #10 – The Chazon Ish and the Laws of Coercion of a GET

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1. There are times when a husband can be forced to give a GET, even with a beating, such as one who marries his close relative. And there are time when the husband cannot be forced with a beating to divorce his wife, but people can tell the husband he is wicked for not giving a GET. See EH 154:21. And then there are times when the husband cannot be pressured at all to give a GET. Even Hoezer 77 paragraphs 2 and 3 and commentators.

2. The Chazon Ish Even Hoezer Chapter 99:1 says that when Beth Din errs and rules that the husband can be forced with a beating and he agrees to give a GET only because of the beating, the GET he gives is negated by the Torah not just by the rabbis.

3. If Beth Din had a case where the only coercion allowed was words but not a beating, and the Beth Din gave a beating, the GET from that beating is negated by the Torah and not just the rabbis. EH 99:1

4. Rambam maintains differently, that if Beth Din made an error and coerced a GET with a beating when it was not called for, the GET is kosher by the Torah standard, but invalid by rabbinic standard. The Chazon Ish says that this is true only if Beth Din made an honest error, because they thought the halacha permitted a beating. But if a Beth Din deliberately beat a husband they knew should not be beaten, the GET is invalid by Torah standard not just rabbinic standard even according to the Rambam. EH 99:1

5. The gemora in Shabbos 88b asks how today when there is no longer semicha from Moshe Rabbeinu to be a Dayan, how can rabbis coerce a GET? The gemora answers that today we do the coercion because it was so established by the earlier Semuchim.

6. The Chazon Ish writes there EH 99:1 that when the earlier Musmochim gave permission to coerce Gittin they meant to include a Beth Din that knew the halochose of judging, that knew the logic involved to be a Beth Din, and that mastered the laws of paskening. It would seem from this that any Beth Din that is not a master of the laws of paskening and knowledgeable about judging its laws and practice is not authorized by early generations to coerce Gittin. To coerce a GET without the permission of the earlier Musmochim is unacceptable (Gittin 88b).

7. The Chazon Ish says there that a Beth Din that deliberately twists things to coerce a GET when it is not deserved has a status of no Beth Din. If so, all of those who deliberately give coerced Gittin the opposite of the Shulchan Aruch lose the title of Beth Din and their Gittin are not recognized. I heard a similar thing from Posek HaDor Rav Yosef Shalom Elyashev zt”l, that a Beth Din that does things against the Shulchan Aruch loses its status of a Beth Din. A similar statement is in a letter from Gedolim in Israel such as Reb Chaim Kanievsky and others. (Brought in the beginning of the Sefer Mishpitei Yisroel.)

8. The Chazon Ish writes EH 99:2 “If the husband being beaten [by mistake] to divorce his wife suddenly feels like giving the GET, not because of the beating but a genuine personal decision, the GET is kosher. But this applies only if he decides that he really wants the GET before the GET is made. But if he says this after the GET is made the GET is invalid.

9. The Chazon Ish says that a husband beaten to divorce when he should not be coerced, the GET is invalid, even if the husband was silent after the beating and he said “I want the GET” without complaining how the GET was obtained. Chazon Ish EH 99:2:2.

10. If the husband is beaten to give the GET and he agrees because of the beating, but in his heart he declares that the GET is negated and invalid, if the beating was proper that he deserved the beating and deserved coercion, the GET is kosher. Ch. Ish EH 99:2:3

11. The Chazon Ish writes that if Beth Din did not force with a beating or any kind of coercion, but they made a mistake and ruled that the husband is obligated by the Torah to give a GET, the GET is invalid by Torah ruling and not just by rabbinical ruling. Ch. Ish EH 99:2: par. 2.

12. There are two reasons for this: One, when the Beth Din told him [falsely because they erred] that the Torah requires a GET, it created a pressure on him to obey the Torah, and this pressure negates the GET.

13. Also, the GET is invalid by the Torah because if the husband had known that the Beth Din was wrong he never would have given the GET. EH 99:2.

14. Thus whenever a Beth Din rules that a husband must give his wife a GET, if the husband is not a candidate for coercion, something very rare, the GET given is invalid by the Torah not just rabbinical ruling. [...]

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