The Salient question can be summarized as follows:
"Would you, Madam, have agreed to marry this man knowing that he was a "Sarvan-Get?"*Or IOW assuming no untoward Behavioural changes, this one question would by itself determine a Mikach Ta'ut - an invalid, and therebyvoidable transaction retroactively - at least from RER's perspective.
Many of us - including myslef -would quibble with such a radical, non-Traditional application of such principles w/o solid Rabbinical Precedent, but, truth be told this position is not as radical as many others that have been advocated in Halachic writings.
* - A man who refuses to give a Get when ordered or to appear before a Beth Din to submit to their psaq.
KT,
RRW
8 comments:
Since meqach ta'us (an invalid business deal because one party didn't posess the facts) is only when the other party or the general population did know, the question is more like:
Did the man know when he got married that he would be a sarvan? Was this information kept from the bride by someone?
-micha
Let's concede your point as valid.
Rackman would say that unless there is a shift in behaviour he was a Sarvan from day one.
This point was allluded to in the post itself
""IOW assuming no untoward Behavioural changes,""
if the husband DID go through a change, then mikach Ta'us could NOT apply as such
KVChT
RRW
But it also requires *knowing* this. Qiddushin 11a. He had to know at the time of the wedding that he had the character flaw that would eventually lead to his being a sarvan, and kept it a secret from her. More than that, there has to be grounds for presuming he would know. IOW, we would have to say "ein adam ro'eh nig'ei atzmo" is also no longer true.
-micha
In that Rabbi Wolpoe described this paak as non-traditional, given the Rabbinic desire to remove an aguna status from a woman, it could be easily argued that this lack of precedence is indeed damaging to this perspective. Afterall, if Rabbis were always trying to free agunot, the lack of this argument in the past really would seem as an indication that this arguments was rejected by the gedolim of the past. The problem with that argument, though, is that the classic case of agunah was not the same as the modern case. In the past, the agunah status arose generally because the husband lost contact with the wife's world. The question as such was generally -- can we assume he is dead rather than just missing. The modern issue is based around a completely different problem -- the husband who has autonomy within our present general legal environment and thus just doesn't want to give a get eventhough a bet din may demand it. Given that this is generally a relatively new aspect of the definition of agunah, the lack of historical precedence is really not as problematic. Poskim didn't discuss this case because it really never came up. The non-traditional psak of Rabbi Rackman thus may reflect a non-traditional set of circumstances and the lack of a precedence may as such may not be as strong a problem. This does not, of course, deal with the substantive issue of whether Rabbi Rackman's argument of mekach ta'ut is correct or not -- but the lack of such an argument in the past is not as big a problem per se.
Well Said by Rabbi Hecht. Another Rabbi pointed me to a an entire Sefer on Get Zikkuy which is a legal forcing by Beth Din to give a Get based upon the premise that it is a zchut TO THE Ba'al to have the GET given on his behalf. So Mikach Ta'ut would not be the central oeprative principle.
My point has to do with power of beth Din in Hora'at Sha'ah. This is farily well-documented in SA Choshen Mishpat. Just as Hillel could enact a prozbol - without precedent, and Rabbeinu Gershom could outlaw polygamy, so I posit that we have arrived at 'crisis" that would allow "annulment" based upon the principle of Dath Yisro'el [i.e. the needs of the community] even w/o Dath Moshe [that is a metaphor for precedent or Masorah.]
As Rabbi Hecht has noted the old Aguna case was substantively different. Here we have a policy issue. I realize that hafqa'at Kqiddushin IS radical but I also feel enough empathy for modern Agunot to see the need to invoke the power of Beth Din for Hora'ath Sha'ah.
AISI, this would NOT be a chance to radically alter halachah willy nilly because it would be seen as an emergency siutation.
As far as recalcitrant husbands being new, that might not be the case. In the old days Beth Din simply beat the recalcitrant husband up [literally and physically] until he complied. NOw since Beth Din lacks THAT authority Therefore BD ought to invoke another authority.
For Rabbi X. this is get Zikkui which is how he explains Rabbi RAckman, for me it is kol demqadeish - ada'ata derabbanan meqadeish. Now either rabbis have this power or not.
Bottom Line, I might not agree with Rabbi Rackman, yet he certainly has every right to consider his views as within Halachic norms.
RRW
My comments are based on an article on this issue by Rabbi Michael Broyde:
- http://www.edah.org/backend/JournalArticle/4_2_Broyde.pdf
- http://www.edah.org/backend/JournalArticle/5_1_Continued.pdf
To ask "Would you, Madam, have agreed to marry this man knowing that he was a "Sarvan-Get?", would NOT be of any halachic use, as I understand.
Kiddushei ta'ut requires that the blemish existed latently at the time of marriage. If the husband had a mental illness, at the time of marriage, which eventually led to his being sarvan-get, then indeed, this is kiddushei ta'ut.
But if, after the marriage, he got a hit to the head, or some such, which ultimately led to his being sarvan-get, this is NOT kiddushei ta'ut.
According to Rabbi Rackman's defenders, Rabbi Rackman held that since **most** sarvan-get are due to premarital mental defects in the husband, we can make an umdena (presumption) that ALL sarvan-get are due to premarital defects in the husband, and we need not evaluate on a case-by-case basis.
Rabbi Broyde replies to this, that he has read all the relevant psychological literature, and discussed this with psychologists, and the scientific verdict is that this umdena is simply false, scientifically speaking. Most abusive husbands (physical or verbal) CANNOT have their abusive nature traced to something preceding the marriage.
R' Micha asks, "Did the man know when he got married that he would be a sarvan? Was this information kept from the bride by someone?" However, according to Rabbi Broyde, it is irrelevant whether the husband knew of his defect or not. Even if the husband was ignorant of his defect, and is innocent of any deceit, the fact that he had the blemish prior to the marriage, is grounds for kiddushei ta'ut. So if the husband had terminal cancer at the huppah, but was diagnosed only after the marriage, this could still possibly be kiddushei ta'ut. All that matters is that the wife did not know of it; had she known, it could not be kiddushei ta'ut, since by definition, kiddushei ta'ut says that had she known, she wouldn't have married him. - see http://www.edah.org/backend/JournalArticle/5_1_Continued.pdf, page 41, footnote 10.
It is interesting that Rabbi Broyde himself proposes his own solution to agunot: following Rabbi Yehiel Weinberg's foreword to Rabbi Berkovits's Tanai b'Kiddushin u'v'Gittin, he proposes a prenuptial, stipulating that if any of the following conditions is violated, the kiddushin will have been under false pretenses, and thus kiddushei ta'ut:
1) If the couple does not live together for X months
2) If the wife requests a get, and the husband refuses
3) If any poskim declare this prenuptial to violate halachah
Also, a fourth statement:
4) Anyone reading this prenuptial (I assume it is under lock and key in the beit din archives) is hereby appointed (by the husband) as the husband's shaliah to write and deliver a get, and those shalihim can appoint shalihim, ad infinitum. Even if the husband will protest in the future, the husband hereby declares that all future protestations of his are void; the shalihim are valid to write and deliver the get, whatever the husband may say.
I also heard that Rabbi Berkovits's son, Rabbi Dov Berkovits, actually performed a kiddushin with tannai. I'm not sure of the details.
I'd have to reread Crisis and Faith (I keep forgetting whether Rabbi Berkovits advocated tannai in the kiddushin, or in the gittin, or in both), but either way, the mechanism would be similar:
1) If this condition of kiddushin is not met, then it is kiddushei ta'ut. Set the proper conditions, and the problem of aguna disappears.
2) Have the husband write a get before marriage, and have him stipulate that it takes effect only on certain conditions. King David's soldiers did this, so why cannot we? Some will object that if the husband sleeps with the wife in the meantime, this will invalidate the get, because we'll fear he has reconsidered/regretted the get, but I saw that Dayan Yehezkel Abramsky said this is no concern, because here we KNOW that the husband's sleeping with the wife does not mean he regrets the get; he fully intends for his conditional-get to stay active no matter what, until he dies.
I think Rav Berkovits also mentions the possibility of annulling kiddushin (kol demqadeish, ada'ata derabbanan meqadeish). He admitted that this is a serious tool, not to be used lightly, but he said that if the times call for it, we must have courage to do whatever it takes to solve the agunah problem. If someone has a better solution, beatiful, but Rav Berkovits blasted the cowardice of those who would avoid using the tools we have to solve real problems, only because previous generations did not use those tools. (And as others pointed out, previous generations either didn't have recalcitrant husbands, or they could whip the damn guy, so our problem didn't arise - THIS is why previous courts did not use these tools.)
I also saw that Rabbi Rackman in One Man's Judaism specifically raises Rabbi Weinberg's and Rabbi Berkovits's solution (tennai'im) as a valid one which would have solved the agunah problem, if not for the cowardice and fear of the Orthodox rabbinate.
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