Wednesday, January 15, 2020

Rav Herschel Schacter: Kiddushei Ta'us - Making a Farce of the Halacha

Torah Web

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 obviousumdana d'muchach (compelling assumption) that no reasonable woman would agree to marry such a man (see Teshuvos Beis Halevi, vol. 3, pg. 23). [...]

Not only is it a mere impropriety on the part of any beis din to permit a woman to remarry based on such flimsy grounds; even bidieved- if a beis din granted a married woman permission to marry on these grounds- the ruling is ignored, and such a "heter nisuin" issued to the woman is meaningless. Only in the case of a neder do the rabbis have "power" to nullify a commitment by rendering it as a neder b'ta'us, even if it was not manifestly taken in error, as described above. However, in all other areas of halacha- particularly those of marriage and divorce- either the kiddushin falls apart by itself because there was a "mum gadol" and an umdenah demuchach that there was no da'as; or the marriage remains - notwithstanding what any rabbi or any beis din says. The special halachah of "hatarat nedarim" that empowers the beis din to undo a neder retroactively by proclaiming the da'as as a taus only applies in the area of "hafla'ah".

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. [...]

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.


  1. This looks like an old article. It is important to point out because Ora was active in helping Tamar but not much was heard from them recently.

  2. It seems to me that Rambam presented an argument contrary to his great colleague, the Ramban. Maimonides writes in his introduction to the commentary to the Mishnah, that sometimes a n individual sage can present such a clear and logical argument, that the majority will change their view to accept his one. This seems to differ from what Nachmanides is quoted as saying.
    Of course, these are only principles, and I have nothing to conclude on the subject of gittin.

  3. But 'tolerating' such a 'heter nisuin' is ok.

    Did RHS issue a public statement like he did against the IBD?


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