[By Rabbi Yair Hoffman]
Most of our readers have read about the FBI sting against the Rabbis who perform what we can now call “The Cattle Prod Get.” In this column we will not be dealing with the aspects of Chilul Hashem and the breaking of American law. Rather, we will focus on whether these Gets are kosher or not in the first place.
THE MISHNA
The Mishna in Ksuvos (77a) lists a number of illnesses and professions in which a qualified Beis Din may force the husband to give a Get. The Gemorah both in Ksuvos and Yevamos provides further cases, and the final halacha regarding forced cases has been quantified in Shulchan Aruch Even HaEzer chapter 154.
THE DEBATE
There is a fundamental debate among the Rishonim, however, as to whether the cases discussed in the Talmud are the only such cases where a get may be forced upon the husband or whether they are examples of cases that may include other cases too. We will see that the final disposition of a forced get in most contemporary cases is dependent upon this debate among the Rishonim. The first view is that of the Rambam (Ishus 14:8), who rules that there are other cases where a get may be forced.
The next view is that of the Rosh and the Rashba. The Rosh, Rabbi Asher Ben Yechiel, rules in his responsa (43:3) that one may only force a get in the cases specifically mentioned in the Talmud. The Shulchan Aruch cites the Rosh in 154:5. The Rashba agrees with the Rosh in this respect as well.
MA-OOS ALAI
Most cases of divorces that appear in our times do not deal with the issues of these illnesses and professions. They rather deal with cases where the wife allegedly finds the husband disgusting. This is termed in halacha as “Ma-oos alai” – he is disgusting in my eyes. For these cases, the Rambam rules that a get may be forced, while others disagree.
HOW DOES A FORCED GET WORK?
The essential question behind this debate may lie in how a forced get really works. What is the principle behind the mechanism? The Mishna in Yevamos (112b) clearly states that a man can only divorce his wife of his own will and accord. It cannot be done against his will. Yet we find that the Mishna in Eirachin (21a) states that the way it works in divorces is that we can force him until he says, “I want [to do it].” How are we to understand how this works?
To answer this question, there seem to be four different approaches.
RAMBAM’S APPROACH
The first, and most famous one, is that of the Rambam found in the laws of Geirushin (2:20). He explains that since the husband essentially wishes to be part of Israel he does not truly wish to go against the Torah. He wishes to fulfill the Mitzvos and distance himself from sin. It is just that he is subjugated to his evil inclination. However, once he receives corporeal punishment, his evil inclination is weakened and his true desire comes forth.
The Rambam’s view as mentioned earlier, is certainly the most well-known explanation to how it works. It is interesting to note that most people who have studied in Yeshiva are only familiar with the Rambam’s resolution to the question. Often, they are entirely unfamiliar with the other explanations and do not realize that the Shulchan Aruch’s position is more than likely like the position of the other Rishonim!
THE RASHBAM’S APPROACH
The Rashbam in Bava Basra (48a “Hasam”) explains that it is tantamount to the case of a forced sale when the seller receives consideration. He writes that just as the seller does not end up losing anything so too this husband doesn’t lose anything since his wife hates him anyway and without a get as well she will not remain with him – he loses nothing. The get is only a means that permits her to others and has no bearing upon him.
THE RADBAZ’S APPROACH
Another opinion is that which we find best explained in the Radbaz (responsa 1228) that the way a forced get works is dependent upon the power placed in the sages of Israel – that the Rabbis were empowered by the original formula of the marriage ceremony, “Behold you are betrothed to me in accordance with the law of Moses and Israel.” The law of Moses is Torah law, while the law of Israel refers to the rulings of the sages of Israel. In the cases of a forced get in the Mishna, the Radbaz explains, the Rabbis essentially revoked the marriage from the onset. In the language of Rabbinic Hebrew this is called, “Afkinhu Rabanan l’kidushin minei – the Rabbis revoked the marriage from him.”
Most Achronim understand that the Rosh’s position explained earlier is virtually the same as that of the Radbaz.
TOSFOS’S APPROACH
Another opinion is that of the Tosfos in Bava Basra (48a “Eelayma”). This position is somewhat unclear but it states that since the giving of the get under such circumstances is a Mitzvah it is likened to a sale, which is effective when forced. Some Achronim (see for example Rav Shlomo Streisan) understand the Tosfos to mean that the Mitzvah has a financial value to it and thus it is like the sale.
THE UPSHOT
According to the Rosh and Radbaz, which the Shulchan Aruch seems to rule with, the case of Ma-oos alai would not be included in the cases where force may be used and the principle of Afkinhu Rabbanan l’kiddushin minei would not apply. Thus the marriage would still be intact and the cattle prod get would be ineffective. According to the Rambam the cattle prod get would work, but only in the circumstances that it was truly the correct Torah thing to do.
THE POSKIM WHO QUALIFY THE SHULCHAN ARUCH RULING
There are also Poskim who draw a distinction between the cases in the Gemorah and Shulchan Aruch and cases where the wife is no longer under the same roof as the husband. These Poskim write that the entire issue of limitation of forcing was only when they were under the same roof, but otherwise forcing when there is a concern that the wife would be an Agunah, left alone, is always permitted. The responsa of the Chacham Tzvi Siman 1 seems to indicate that he holds of this distinction. He writes that one may force a get either because of igun or because of the issues that Chazal enumerated. This is also the position of the Z’kain Aharon (Rabbi haLevy) in his responsa (#149). According to these Poskim the cattle prod get would be kosher.
It is pretty clear, however, from the writings of Rav Elyashiv and Rav Shlomo Zalman Auerbach that they do not seem to subscribe to this view.
Indeed, a friend of this author was once present when Rabbi Mendel Epstein’s name came up in front of Rav Elyashiv zt”l, and Rav Elyashiv zt”l said, “Oh him? His Gittin are invalid.” This was said in reference to his forced Gittin. Whether Rav Elyashiv’s ruling applies to each person’s individual case is another story and a competent Poskim should be consulted regarding each case.
The author can be reached at [email protected]
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28 Responses
1. If you hold that a Beis Din could beat someone, Kal v’Homer they can use a cattle prod which is less injurious. Many hold a Beis Din can use coercion to enforce its rulings.
2. If the incident involved a kosher Beis Din is a separate matter.
3. The only solution to the “aguna” crisis is to force the husband to obey the Beis Din. The husbands’ mockery of halacha, in both refusing to support their wives, obtaining a civil divorce, and refusing to give a get, is probably more serious than any other threat to the Torah world since it will force large numbers of yidden (and their families) to give up being frum (and becoming a conservadox is “off the derekh”, as is illustrated by the fact that children and grandchildren of those on that path becomes increasingly removed for yiddishkeit).
4. If this was done according to our law, by a legitimate Beis Din, would it be a Hillul ha-Shem to publicly place such a priority on enforcing our laws.
What?
1. How could you possibly know which is worse, a beating or a cattle prod?
2. There are no indications that these men are psulei edus.
3. That’s the whole question in the article, whether we can force them to obey beis din.
4. That depends. If they were doing it to make money, perhaps. But how can saving a woman within the parameters of halacha (let’s say it was so) be a chillul hashem? If I kill a rodef to save the nirdaf, even if that’s in violation of US law, is that not a kiddush hashem?
While this post is somewhat informative, the gratuitous attack on someones character from hearsay is uncalled for and disingenuous in this context. Do you really think that “a friend of this author was once present when Rabbi Mendel Epstein’s name came up..” is a good source for a halachik article?
Its mind boggling!! whats is there even think about halacha! at this point.It was done for money !! and besides there are thousands of pesakim from bais din’s which are not complied with why isn’t any thing done in those cases ?? is it because there is not enough money in those cases? its to cry that any one can hide behind the aguna saga which is devastating and use that make a money scheme and a chillul hashem . Please tell me which gedolim ever did anything like that or gave a heter ? Its well known to who ever knows that who ever gave him more money , thats the way he swayed . It had nothing to do with pesak bais din !! money money and money and whats with all the young children who see and hear this !! what will they be told . this is the way of torah ??
Hamokem yerachim ulaenu.
Why was this story not covered on YWN. I like to use YWN as my single source of information online that pertains to the frum community, why do I have to find out about about this via non Jewish sources who obviously have a bias against us?
1. The Shulchan Aruch and all other poskim all agree to the Ramba”m’s principal that in his heart every Jew wants to do the right thing. They just don’t hold it’s enough when it comes to a Get since he can truly believe he’s doing the right thing. But the ‘Yesod’ is universal.
If a man is not supporting his wife and not divorcing her, or any form of not being a good husband, the right thing may be to start being a good husband, and in his heart of hearts his Neshama wants to do just that – not give a Get.
The real issue (aside from the issues raised by Rabbi Hoffman) is that the Rabbis involved do not consitute a Bais Din that has the ability to force the husband to do anything. There are many Batei Din in the New York metropolitan area and just because one Bais Din decides that the husband should give a get has no bearing if the husband has not accepted the authority of that Bais Din to adjudicate the case. The husband could choose another Bais Din that is more likely to not permit a forced Get, in which case, a different Bais Din, that the husband has not submitted to, has no authority over him. This is not the olden days, when a community had a Bais Din had authority over the members of the community. Maybe the Chassidim have this with respect to their members, but in the United States, people can choose which Bais Din they want or can insist on a Zeh Borer. That means that the Bais Din was not properly authorized to rule on the Gittin in question, making the Gittin issued under these circumstances not valid.
I (a fried of R’ Hoffman and of R’ Epstein) am appalled to see such blatant Loshon HoRah on YWN. Rechilus, Motzi Shem Ra and motzi laaz al Gitin that these women’s children after remarriage are mamzeirim! Shomu Shamayim!!!
These are separate questionsL whether those people were allowed to actg as they did, and whether a properly constituted Beis Din could under some circumstances authorize use of force. As there are examples of Beitei Din authorizing killing people under certain circumstances (e.g. Nazi collaborators), there is no question that under some circumstances force can be used.
How this applies to individuals acting as a group (as opposed to an estalished Beis Din that summons people, gathers evidence and hears arguments) is a different matter. Also there is a separate question as to how much force private people can use in such questions (even if illegal, must frum people probably would approve of beating up a man who divorces his wife in the goyish courts and is trying to extort money from her by refusing to give a “get”). But that is also a different set of shailohs.
The author begins this piece by stating that he is not discussing Chilul Hashem and breaking American Law.
Without such discussion, in a completely open forum like this, this piece is dangerous and destructive.
#10- nothing is as destructive and dangerous as what these animals did.
The colossal chillul hashem NORA is Ain lishayeir.
Get a grip dude.
Have a nice day.
What kind of cattle prod is appropriate to use?
What about the lady who goes to Secular Court without any Heter?
Or many times they barely deal with the husband or discuss with him what his hesitations.
There are timed when the husband begs the wife through Bais din to get out of Court and appear together in front of a Jewish court.
If they got married with a Jewish wedding, they should get divorced in a Jewish & Halachic manor.
Anyways, using force, & throwing plastic bags over peoples head is just sick & discusting. Theres no reason for that type of behavior. It was NEVER meant to be with such conduct as these people were using
I am way too uneducated in halacha to follow most of this discussion, but I do have this question: if a man refuses to give a get, and a beis din determines that it is appropriate to torture him until he does, why does halacha not skip the torture and hold that the beis din which would otherwise authorize the torture may issue a decree or order that is the equivalent of the get that the evil husband would not give. In English common law and American secular law, this is part of a concept known as equity (which does not mean, in this context, equality or fairness). Under principles of equity, a court may regard as done what should be done. If a husband must give a get, on pain of torture, then skip the torture, skip the get, and the court is authorized to declare the get given.
Get it? No blood, no torture, no problem.
http://www.theyeshivaworld.com/coffeeroom/topic/important-halachos-of-cattle-prodding
http://www.theyeshivaworld.com/coffeeroom/topic/latest-arrests-in-flatbush-monsey
http://www.theyeshivaworld.com/coffeeroom/topic/using-physical-force
“Indeed, a friend of this author was once present when Rabbi Mendel Epstein’s name came up in front of Rav Elyashiv zt”l, and Rav Elyashiv zt”l said, “Oh him? His Gittin are invalid.” This was said in reference to his forced Gittin. Whether Rav Elyashiv’s ruling applies to each person’s individual case is another story and a competent Poskim should be consulted regarding each case.”
Wow! Wow! Shocking!!
http://www.theyeshivaworld.com/coffeeroom/topic/does-an-invalid-get-cause-mamzeirus
This was NOT a Beis Din. It was an invalid Kangaroo Beis Din. They never had the “husband” come or invited to their kangaroo beis din. And any valid beis din can only have a session with both parties present. So it was no beis din.
The halachic caveat is QUALIFIED bet din. This type of bet din simply does not exist outside of Israel, where the Chief Rabbinate battei din have legal standing – and, in fact, can and do use certain methods of coercion, such as imprisonment, taking away government benefits, etc. Similarly, there is no power today to annul a marriage in the case of get refusal. This is something that is agreed upon by all of the poskim.
Quote: “In the cases of a forced get in the Mishna, the Radbaz explains, the Rabbis essentially revoked the marriage from the onset.”
Question: If that is so, what then is the status of their children? Are we thus saying that these children are the product of Maaseh Z’nus?
#3 Quote: “Do you really think that “a friend of this author ..” is a good source for a halachik article?” – Could be. The Gemorah does it all the time and many contemporary poskim also quote stories of maaseh sh’haiya as proofs to a psak.
#8 rotzehbilumshmo – I’m not clear on who you are attacking. Are you coming out against Rabbi Hoffman for is statement about Rabbi Epstein. If so, don’t you think that a true friend would discuss this privately with him?
The type of Rabbis involved here are the ones who strongly battled against the NY Get Law, which was a legal way of coercion of Get-Refusniks. Their claim was that it is a Get Meusseh (not out of free will)and therefore invalid. Is US$ 100,00.00 the only difference and nuance, which suddenly permits the unlawful use of physical power? Is it suddenly no Get Meusseh anymore? I wish the author would have elucidated the fine line between both kinds of coercion and would have convinced us that it is not the amount of money which helps bend Haloche and violate the law of the country.
In my opinion still too many people perceive the Rabbis involved in this kind of Get solution for big money as heroes. They are definitely not. They seem to make a living out of the much too stringent Halachic approach of their peers in Get matters.
Harav Elyashiv Zt’l was not someone who would just sit back and let women become igunos and children become mamzerim. It is hard to believe that he really said that this Rav’s forced gittin were possul and didn’t do anything about it.
To NFGO3 (#14) – Maseches Gitting is a huge masechta! Giving a get is not something that can just happen with the bang of the gavel. There are many processes involved.
“a court may regard as done what should be done” Doesn’t usually apply in halacha (as far as I know, to the extent of my limited knowledge)
There is actually a piece on this on the Rav Elyashiv book put out by Artscroll.
See page 272
“For many years he (ie. R’ Elyashiv)fought together with Rav Shlomo Shimshon Karelitz against the practice of imposing halachikly inappropriate sanctions to force recalcitrant husbands to give a get. (footnote) In recent years some women’s groups working to free agaunis have pressured dayanim and batei din to coerce recalcitrant husbands to give gittin even when coercion is not permitted by halacha. If a get is given under coercion in cases when halacha does not allow it, the get is invalid, the woman is not permitted to remarry, and her children from a subsequent marriage are mamzerim.
It sounds like this whole article was written just for the last paragraph. It’s a disgusting way of using the Torah, making a whole back and forth, and then twisting a “maaseh shehaya”
reading list
kafiyeh b’get (hebrew) by Rabbi Gartner
guide to bais din (english) by Dr. Miller
#4. I agree with you. I cant believe how extorting a women 50k to beat up her husband gets so many Halachic opinions. If that’s what the frum community is sinking to in order to raise money, we are in a lot of trouble. May also explain the increasing departure away from Orthodoxy. keep this crap up, and no one will supporting this community
It would seem that the bill of divorce required in Devarim 24:3 could be written by the Beis Din in extreme situations.
It’s possible perhaps that a get is not necessary for a divorce if the husband locks the gates of happiness and mourning to his wife as described in Mishna Ketuvos 7:5.