Tuesday, June 23, 2015

Chicago Beth Din Coerces a GET from a Husband Against the Torah

Response to a Beth Din Ostracizing a Husband for Not Giving an Immediate GET
Rabbi Dovid E. Eidensohn Musmach Geonim Rav Moshe Feinstein and Rav Yosef Shalom Elyashev
1.       The Beth Din of Chicago  ruled that a husband must give his wife a GET. The husband plans to give his wife a GET but wants certain things to be worked out and arranged. But the Beth Din has ruled that as long as he refuses to give the GET soon he is to be humiliated and ostracized by the entire community. The husband has asked me my opinion and I reply that the Beth Din is completely wrong, and the GET if given under these circumstances is a coerced GET and invalid. Furthermore, a Beth Din that coerces a GET under these circumstances loses the status of Beth Din and all Gittin that it gives are not accepted. I heard this myself from the Gaon Rav Yosef Shalom Elyashev zt”l, when I spoke to him at length about these issues when he gave me semicha to lead a Gittin Beth Din in his name.
2.       See also the Sefer Mishptei Yisroel with signed letters from Gedolim of this and the past generation about the terrible sin and mamzerim because of Gittin produced with humiliation, and the sin of going to such a Beth Din and accepting their Gittin. (Letter signed by Rav Chaim Kanievsky, Rav Shmuel HaLevi Wosner, Reb Nissim Karelitz, Rav Noson Kupshitz and many others.)
3.       Again, any woman divorced by this Beth Din is not considered divorced, and if she remarries it will be considered a sin and her children perhaps mamzerim. She needs a GET from a kosher Beth Din.
4.         Where does it say in Shulchan Aruch that a husband who refuses to divorce his wife may be treated this way?
5.       The Shulchan Aruch Even Hoezer has three categories of women who demand a GET.  The first level is when the husband is commanded by the Talmud to divorce his wife, and Beth Din is commanded to coerce him even with a beating, if he refuses. For example, a man marries a mother or a daughter.
6.       The next level of coercion is when a man is commanded by the Talmud to divorce his wife, and he is considered a sinner if he does not do this, but beating him or any serious coercion such as hitting him or putting him in the state of Niduh, is forbidden. Humiliation is considered a major coercion and forbidden for such a man. (Rashbo VII:414 Radvaz IV:118, Chazon Ish EH 108:12)
7.       The next level is when a woman demands a GET from a husband simply because she despises him completely. In such a case the Shulchan Aruch rules that no coercion at all is permitted. This is based on the Rashbo VII:414 and it is quoted in the Shulchan Aruch, Ramo, Beis Shmuel, Chelkas Mechokake and Gro in Even Hoezer 77 paragraphs 2 and 3.
8.       Most Gittin are in this latter category, where no coercion is permitted. This category is not even discussed in the Laws of Gittin Even Hoezer. It is discussed in the Laws of Kesubose, because we want the marriage to continue and refuse the wife the right to coerce her husband to divorce her.
9.       When the Ramo discusses the right of ostracizing a husband, he does this in the Laws of Gittin 154:21 and only permits it when the husband is specifically commanded by the Talmud to give his wife a GET. But when discussing the wife who demands a GET Ramo does not mention any kind of coercion that is permitted. See EH 77 par 2 and 3.
10.   Therefore, this Beth Din that demanded a GET and coerces it defies the Shulchan Aruch.
11.   The fact that the Beth Din decreed upon the husband to give a GET was wrong. And the Chazon Ish says that if the husband obeys the Beth Din and gives a GET when there was no right to coerce him, this is a forced GET and the GET is invalid, for two reasons, by the teaching of the Torah. The children born from such a GET are thus mamzerim. EH 99:2
12.   The Beth Din in Chicago decreed that the husband be ostracized and humiliated.
13.   The Chazon Ish 108:12 brings the Beis Yosef that humiliation is forbidden even for a person commanded by the Talmud to divorce.. Therefore, says the Chazon Ish, it is forbidden to do harchoko of Rabbeinu Tam as this is a humiliation. Surely in our case humiliation is forbidden.
14.   Senior poskim forbid Harchoko of Rabbeinu Tam unless a person is married to his mother or daughter and such hideous circumstances. These are the Shach end of Gevoras Anoshim, Chazon Ish EH 108:12, and the rebbe of the Beis Yosef Reb Yosef ben Leib who says we never heard of anyone doing the Harchoko of Rabbeinu Tam because it is considered a very serious coercion similar to a beating.
15.   The Gro EH 154:67 and others hold that Harchoko of Rabbeinu Tam is only permitted if the husband can leave his city and find peace. But today, communications are such that it is very unlikely that this will happen. Furthermore, today, people don’t know the laws of Harchoko, that only passive ostracizing is permitted. So once demonized, husbands are threatened with very serious coercions, leading to a definite problem of an invalid and coerced GET. Thus in the Chicago Beth Din letter all of the shulls must announce at the end of Shabbos dovening that the husband is in violation of the Beth Din order to give a GET. This is active, not passive, and it is humiliation, not ostracizing.
16.   I once had a discussion with Rabbi Gedaliah Schwartz, the Av Beth Din of Chicago, who signed on this ostracizing of the above mentioned husband.. What happened was that a man came to a prominent Rov in a large city and said he was interested in remarrying. The Rov asked him if he had a GET from his first wife. The man replied he did not, because he and his wife had gone to Rabbi Gedaliah Schwartz for a GET, and he told them they had no need for a GET and sent them away. I called up Rabbi Schwartz and asked how a couple who was married with Orthodox Chupah and Kiddushin in front of kosher witnesses can remarry without a GET. He told me that there was no Biah, as the couple lived alone for a month without Biah. I asked him how he knew that there was no Biah. He said the doctor said that. I asked him how a doctor knows this, as Biah can be without tearing anything. He had no answer. But the main problem is that the poskim and the Shulchan Aruch are filled with stories of boys and girls making Kiddushin in the street, and the poskim consider that if there was a chance that they meant it and there were witnesses, then they are married and need a GET. There was no Biah in these cases. See Marsham Volume VI:158. Furthermore, the Rambam (Ishuse III:1 and 3) and Shulchan Aruch EH 26:4 “A woman can be married in three ways: money [an object of value such as a ring], a document and biah.” It does not say that without Biah money and a document are not valid. Thus Kiddushin without Biah makes a married couple that requires a GET. If Rabbi Schwartz disagrees, he disagrees with the Torah. And he does disagree with the Torah. Therefore, what he and his Beth Din rule is worthless.
17.   The recent scandal with Rabbi Schwartz’s National New York Beth Din whereby the FBI obtained from that Beth Din a letter condemning a husband who didn’t exist should alert us to the fact that Rabbi Schwartz’s Beth Din has no status of a Beth Din at all and their Gittin are worthless. Nonetheless, if a kosher Beth Din checks over the giving of the GET, the Sofer, etc., and rules that the GET is kosher, then it is kosher.
18.   Rabbeinu Yona in Shaarei Teshuva writes (#139) “the pain of humiliation is worse than death.” Surely humiliation is a very serious coercion, and it renders a GET invalid.
19.   The above husband should give his wife a kosher GET, not a coerced GET that is invalid.
20.   The Beth Din should calm things down and allow the husband to approach divorce without a feeling that he is among enemies.
21.   The husband has surely given me the understanding that he wants a divorce, but he doesn’t want to be coerced into it before he has satisfied himself about certain matters that every husband has a right to be concerned about.

Sunday, June 14, 2015

Three Styles of Torah and Our Times - by Yosef Orlow

Yosef Orlow

Jun 7 (1 day ago)

The Danger Within

Two threats have always faced the Jewish Nation: the threat from without and the threat from within. The threat from within, from Jews who undermine adherence to the Torah, is the greater threat. When we collectively keep the Torah we are protected from external dangers. Yet no amount of fighting our enemies can save us if we don't keep the Torah.

At the time of the Gr"a, there were no great centralized Yeshivas until Reb Chaim Volozhin started his Yeshiva with the permission of the Gr"a. The purpose of the Yeshiva was to provide a place where students could learn full time, in an atmosphere protected from the multitudes of anti-Torah idealists.

 At that time, non-Jewish societies had become more accessible to Jews. Some Jews began to assimilate. As is the way of the wicked, some of these active assimilationists sought out observant Jews to drag them into the tide of assimilation. The response of the Gr"a was to have a Yeshiva that isolated the students from these heretical vultures. The outsiders trumpeted the claim that the "new" way was better than the Torah way; the Yeshiva imbued in its students the idea that the highest potential man can reach is to live his life entirely by the Torah.

The Yeshiva life was hard, but the students were willing to sacrifice comfort in exchange for the knowledge that they were on the path of truth; while those who rejected the Torah were living a life of meaningless vanity.

Rav Shimshon Raphael Hirsch took a different tack for his place and time. His approach was to beat the opposition at its own game. Rav Hirsch went out to the assimilated youth to challenge their adherence to the ways of non-Jewish society. Whereas in the past non-observant Jews tried to diminish Torah observance by attempting to poke holes in the logic of Torah observance, Rav Hirsch poked holes in the logic of assimilation. Rav Hirsch armed Jews with rhetorical weapons to fend off the assimilationists. Jews could now venture into fields of employment that brought them into contact with the world at large, without severing their ties to the Torah.

Rav Yisrael Salanter had another approach. He taught that one's goal is not to be superior to the next man by diminishing him. One's goal is to be better than oneself. The message of the Mussar movement was self-perfection.

We read in the Torah about the command to Aharon to light the holy menora so the burning wicks would turn to the face or front of the Menorah. For this HaShem told Moshe to emphasize the importance of the center of the menora again and again. When Aharon obeyed he was complimented, as Rashi explains, "This tells us the glory of Aharon that he did not change what he was charged." When we have a Menorah of seven fires, each represents a unique dimension of holiness. There are many holy paths to the Torah. But they must all be one and united, as they face the center of the Menora, and all of the paths lead to HaShem in unity. That is the great challenge for Aharon, and for us as well.

Monday, June 1, 2015

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

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.

  15..   Rabbeinu Tam (Shita Mikubetses Kesubose 54b par beginning וכתב רבינו יונה    and ending with Rabbeinu Tam(  holds that Beth Din should not tell the husband that it is a mitsvah to give a GET. It should also not tell the husband that it would be a good idea to give a GET.  It would seem from the Shita that Rabbeinu Tam and Rabbeinu Yona who are quoted, are talking about a case where the wife said “my husband is repulsive to me.” In that case Rabbeinu Tam forbids even mentioning about a GET is a mitsavh or a good idea, but Rabbeinu Tam permits this minor coercion. We want to know the opinion of Rabbeinu Tam and Rabbeinu Yona, why the disagree in Mous Olei if it can be coerced with a minor coercion to call the husband wicked or to tell the husband it is a good idea or a mitsvah.

   16.    Perhaps the reason of Rabbeinu Tam is that according to the Chazon Ish when the husband has been misled to believe that the Torah requires a GET, even without coercion, the ruling is in itself a coercion.

   17.  A Jew feels coerced when he is told it is a mitzvah to do something. Such coercion invalidates a GET. Therefore, Rabbeinu Tam may hold that not only ruling that the husband must divorce his wife, but even saying it is a mitzvah, or it is a good thing, is basically saying that HaShem wants this done, and wants the GET. If so, this can create a force that makes the GET coerced and thus invalid.

18.     It is clear from the Rashbo VII:414 and all of the mephorshim in Shulchan Aruch EH 77 par 2 and 3, that even with MOUS OLEI no coercion at all  is allowed. Rav Elyashev zt”l held it was not even a mitzvah to give a GET with Mous Olei.

 19 .    Rabbeinu Yona disagrees with Rabbeinu Tam and maintains that a minor coercion can be applied to tell the husband that it is a mitsavh to give a GET when the wife claims her husband is repulsive to her, and Beth Din can also say that giving a GET is a good idea. The poskim in Shulchan Aruch Even Hoezer 77 paragraphs 2 and 3 maintain that no coercion is permitted, see also Rashbo VII:414. “If the husband wants to divorce he can divorce. If he does not want to divorce, he doesn’t divorce.” It would seem from this that no coercion at all is permitted, which is the opinion of Rabbeinu Tam.

20.      The  Chazon Ish holds that pressure to give a GET because it is a mitzvah can ruin the GET. So for Beth Din to say it is a mitzvah might invalidate the GET, which could be the opinion of Rabbeinu Tam.

21.    The Tashbatz has a question about a father who commanded his son to give a GET. Does the honor of one’s father produce a forced GET? The Tashbatz I:1  ד"ה אונדא דאחריני says that the GET is kosher because “It is a mitzvah to obey one’s father because his words did not violate the Torah and they were intended to end a quarrel [between husband and wife and their families].” Tashbatz also holds that if the son is beaten to force him to honor his father and give the GET, the GET is still kosher, because it is a mitsah to obey his father.

22.     The Chazon Ish disagrees with Tashbatz in 99:3 ד"ה בב"י שם   and holds that coercion to divorce because the husband thinks it is a mitzvah to give the GET produces an invalid GET by Torah rulings not rabbinical rulings for the two reasons mentioned above.  Chazon Ish also quotes two Rishonim  Teshuvas Maimon and Ritva who disagree with Tashbatz about coercion to fulfill a mitzvah. They hold that coercion to do a mitzvah invalidates a GET  and the Tashbatz holds coercion to do a mitzvah does not invalidate the GET.

23.     Chasam Sofer Teshuvas Even Hoezer I #28 and #115. If so the machlokess if a mitzvah is a force to invalidate the GET is a doubt if the coercion is proper, and the Chasam Sofer holds that in such a case the GET is negated by the Torah not just rabbinical decree, and the children born from such a GET are mamzerim diorayso.

24.   Chazon Ish also holds that the  Tashbatz is wrong to say that a GET given because the father commands him is an obligation on the son because of honoring his father. He quotes a gemora and a Ramo to that effect. The Chazon Ish holds that the mitzvah of honoring a father does not include divorcing your wife because the father tells  you to do so.

25.   Tashbats holds that if a husband is beaten to force him to obey his father and divorce his wife, the GET is valid. The Chazon Ish maintains that it would seem that the GET is invalid EH 99:3.