Splitting a Ruling (Column 453)
With God’s help
Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.
A few days ago I saw the following article, reporting on a rabbinical court that annulled the betrothal (kiddushin) of a man who came out of the closet, and on that basis permitted his ex-wife to marry a kohen even though she had received a get from her previous husband. The claim was that had she known he was gay she would not have consented to marry him, and therefore her consent was in error and the kiddushin are retroactively void. Consequently, she does not now have the status of a divorcée but of an unmarried woman, and therefore she is permitted to a kohen. I shall restrain myself from responding to the exquisitely moving declaration cited there, to the effect that this ruling proves that the Rabbinate is attuned to the needs of couples who marry according to halakhah. I will merely note that in my innocence I thought that halakhically she is single, but it turns out that in their view she is actually a married woman—only they did her a favor and permitted her because they are attentive to the needs of couples who marry according to halakhah. This is not merely an aside; it is intimately connected to the discussion I wish to conduct here.
Palginan Psikta
Here I wish to touch on a statement by the head of the court, Rabbi Zevadya Cohen, cited in the article:
Rabbi Cohen, head of the Tel Aviv rabbinical courts, acceded to the woman’s request and, in an exceptional step, attaching to his reasoning additional halakhic considerations, annulled the marriage and ruled that she may marry her partner, who is a kohen. The senior judge emphasized in his decision that one could not have accepted this claim in order to permit a married woman, an “eshet ish,” to marry another man—but after she in any case divorced in accordance with law and is already single according to all views, one can employ the argument of “mekach ta’ut” (a transaction in error) so that she may marry a kohen.
Note the phrasing (by the journalist) that the head of the court “acceded to the woman’s request.” Apparently this is due to his sensitivity to the needs of couples who marry according to halakhah. For I, in my innocence, thought that he is not acceding to requests here but determining her halakhic status—and that is her status as a matter of fact, irrespective of her requests and needs.
In any case, I was not surprised when yesterday I was asked my opinion about this statement (see also here): is it reasonable to split rulings with respect to permitting a divorcée to a kohen versus permitting a married woman to the public at large? I’ll start with the conclusion: to me it is obvious that it is not. In my understanding, this is an absurd and illogical claim, though—as I wrote to the questioner—this approach is indeed accepted in the halakhic world.
I note that this division, which I shall call here palginan psikta (division of rulings), continues the odd formulations I described above. The court compassionately acceded to the request of the unfortunate divorcée, but another woman who needs to be released from agunah will not receive from them that special gift and compassion. From this “palginan” it emerges that this is not the woman’s halakhic status; otherwise, an agunah who is in such a situation would also receive a permit. It is apparently just a gift from the merciful Chief Rabbinate, due to its famed consideration for the needs of couples who marry according to halakhah, on account of which they are willing to permit a divorcée to a kohen despite the prohibition imposed by the Torah. How great are Your works, O Chief Rabbinate!! They follow the way of our forefather Abraham: just as he left God to honor his guests, so too the Rabbinate overlooks a prohibition that God imposed in His Torah for the sake of unfortunate people.
In passing I only wonder where that same consideration, so characteristic of this compassionate institution—the walking in the ways of our forefather Abraham—can be found when it comes to agunot. Why should a woman who does not receive a get from her husband who turned out to be gay not receive the same permit? Did she not marry according to halakhah? Is she not unfortunate? Seemingly she is far more unfortunate, for she cannot marry at all, whereas the other one merely cannot marry a kohen. Well, a merciful and compassionate heart is no guarantee of rational conduct (and sometimes it even conflicts with it).
Palginan Psikta and Doubts
As you can see, I could not quite restrain myself (“bal teshaktzu”). But if we now turn to the matter itself, I wish to discuss here the approach of palginan psikta as such. As I wrote, I cannot deny that this is an accepted halakhic approach, but I still wish to argue that it is utterly illogical and ought to disappear from the world (i iyashar chili—avatliniah, “were it in my power, I would abolish it”).
At first glance it would seem that such reasoning is based on viewing this as a doubtful situation, to which the laws of doubt apply. If you add that permitting a married woman to the public at large is a severe prohibition (karet), whereas permitting a divorcée to a kohen is a prohibition of a simple negative commandment (lav), you will conclude that there is no justification to be lenient in cases of doubt in the former. But regarding a divorcée to a kohen (which, as noted, is only a lav and not a prohibition of ervah), there is justification to rely on the doubt and be lenient.
My comments on this assumption are divided into two distinct planes of discussion:
- Why assume this is a case of doubt? Do the judges have a significant reason to think that the woman’s consent in such a situation was not given in error? Do they think it is not clear that this is a case of mekach ta’ut (transaction in error)?
- Even if the court had a doubt, there is still no justification to distinguish between permitting an agunah to the market and permitting a divorcée to a kohen.
I will now discuss these two points in turn.
- Is this a case of doubt?
In many cases judges treat such a situation as doubtful because different opinions exist in the halakhic literature. In such a case, it is a sfeka d’dina (or of authorities). Sometimes the doubt is a doubt about the facts themselves: they do not know whether this is truly an error such that had the woman known of it she would not have consented. The doubt may concern this particular woman (the basic doubt) or women in general (of course there are such and such, but it is unclear who is the “reasonable woman”).
One must understand that basically this is a factual question. The discussion here is whether the woman before us (and perhaps also “the reasonable woman”) who found herself in such a situation consented in error or not. Translation: would this woman (or the reasonable woman) in such a situation, had it been known to her that her husband is gay, withdraw her consent to the kiddushin, or would she not have consented in the first place?
But this is a question that can be determined factually. One can conduct a survey among women and ask them what they would say if they discovered such a fact about their partners. I assume most would answer that they would not want him as a partner—but that is merely my opinion and assessment (and as a long-time resident of Mars, my understanding of all that is hidden in the souls of the inhabitants of Venus is not especially deep. See on this in columns 390, 446, and 452). It is possible and advisable to check this in the field.
From here the conclusion follows that examining the halakhic literature on such a question is irrelevant, for two reasons that are, in a sense, two sides of the same coin: (A) Women’s views depend on time and place, and one cannot learn from women in one period and place to women in another period and place. Women in twenty-first-century Israel are not like women in fourth- or fifth-century Babylonia, or even in eighteenth-century Poland or Marrakesh. (B) The halakhic literature and precedents have no authority in matters of fact.
Of course, part of the lack of authority (side B of the coin) stems from the fact that this is a factual question that varies across circumstances and societies (side A). But beyond that, by definition halakhic authority is not relevant to factual determinations; therefore there is, from the outset, no authority in such questions, and no explanations or changes are needed to justify this. The same applies to precedents in such questions. Usually these are rulings by non-binding bodies (post-Talmudic decisors), and therefore even in halakhic questions they have no mandatory, binding status. Moreover, if indeed changes have occurred in women’s desires and views, then even were this a ruling by a competent institution (the Sanhedrin or the Talmud), it would have no binding force. But, as noted, even if no changes occurred between women’s views in different circumstances—still, I am entitled to form my own position on this issue without regard to what all the great decisors wrote (including the Sanhedrin or the Talmud itself), for factual determinations are entrusted to the judge who sits in judgment, and to him alone. There is no authority and no precedents regarding facts.
The conclusion is that even if different opinions exist among the decisors with respect to this question, their existence does not make the situation doubtful. A doubt can exist here only if the judge sitting on this specific case is uncertain whether women indeed would rescind their consent in such a situation. If so, this is at most a doubt about the facts and not a sfeka d’dina. I will return to this point below.
- The distinction between the situations
Assume the judge is indeed uncertain, and he is now in a state of factual doubt: did the woman before him withdraw her initial consent or not? If that is the case, he should rule stringently also regarding permitting the woman to a kohen. After all, this is a biblical prohibition (a divorcée to a kohen), and the rule is that doubts in Torah law are ruled stringently. This means that if the judge is willing to be lenient regarding permitting a divorcée to a kohen, that indicates that in his view this is not a doubtful case. But if so, why is he stringent in cases where the issue is permitting the woman to the market? If there is no doubt that the woman consented in error, then he can also permit her to marry.
[Parenthetically I note that if this were a sfeka d’ravre’uta (doubt arising from a dispute among authorities), perhaps one could say that one may rely on Decisor A’s view where the law is not so severe, but where the law is severe one should be concerned for Decisor B. Though even there, to my mind, this is not logical; and beyond that I also argue in my article on autonomy that, in principle, there is no such thing as sfeka d’ravre’uta, at least when dealing with post-Talmudic decisors. If you yourself are not in doubt, you must act according to what you think; and if you are in doubt, then it is your doubt and not a doubt derived from those decisors who dispute the matter.]
It may be that the judge is uncertain, but the doubt is not balanced. He tends to think that the kiddushin are void in such a case (i.e., the woman would not have consented), but he is concerned for a slight possibility that the situation is not so. That is, of course, not a case of doubt; therefore he should decide according to the side that weighs more (as we follow the majority). But that is the decision in every case, not only in lighter prohibitions. Seemingly he should also release a woman from her agunah status and not only a divorcée to a kohen, for that is the law. A doubt exists only when the two sides are evenly balanced. If they are not balanced, one must decide according to the side that weighs more. In any case, however one decides, I see no room to distinguish between a severe and a light prohibition (particularly if both are biblical).
There are situations where the Sages imposed special stringencies in severe laws such as matters of ervah (for example, in doubtful mamzer status, and the elevated standards they set regarding lineage, etc.). But that can be done only by a competent body (the Sanhedrin or the Talmud). In such a case it simply adds another law to the halakhic “Shulchan Aruch” that one must be stringent regarding lineage. But a judge today, who is not part of a competent body and cannot enact ordinances, must act according to the fixed halakhic rules. Even if it seems to him fitting to be stringent in such a case, that is not within his authority. If the woman is permitted according to halakhah, he cannot forbid her if he lacks the authority to innovate laws, even if he thinks it would be very fitting to do so. If she is permitted according to halakhah, he is supposed to instruct her that she is permitted (and if he wishes, he may add an obiter dictum in the ruling).
The Talmud’s words on annulling kiddushin by “mekach ta’ut”
The Talmud itself states (Bava Kamma 110b–111a):
“But if so, a yevama who fell before a man afflicted with boils (mukeh shchin) should go out without chalitzah, for it was with this in mind that she did not sanctify herself [i.e., would not have consented to marry in the first place]. There, we are witnesses that she is content with any partner whatsoever, in accordance with Reish Lakish, who says: ‘It is better to sit as two than to sit as a widow [alone].’”
The Talmud rules that we do not annul a woman’s kiddushin on the grounds that those kiddushin led to a situation in which her husband’s brother, who is a mukeh shchin, must perform levirate marriage with her. The reason given is the well-known halakhic presumption: “tav le-meitav tan du mi-le-meitav armelu”—a woman prefers to be in a relationship at any price, even if she finds herself living with a partner who is a mukeh shchin, and the like. Seemingly this is a sweeping claim that one should never annul a woman’s kiddushin, for any information that might come to light, however grave, would not lead to rescission of her consent.
In light of this sugya, most rabbinical courts refrain in nearly all cases from annulling kiddushin on claims of mekach ta’ut. When we needed to do so and annulled kiddushin on the basis of mekach ta’ut or of umdana (see my article summarizing that ruling and explaining the difference between them), we were met with harsh criticism, mainly on the basis of this Talmudic passage. See on this columns 147–148 and the references there.
My basic claim with respect to such annulment was twofold: (1) In the Talmud itself one sees that in principle kiddushin are subject to annulment, were it not for the presumption. (2) This presumption is a factual determination and, as such, should be examined in the time and place in which we operate (and in fact with respect to the particular woman before us). There is no meaning to determinations by decisors from other times and places, not even to the Talmud. Even if women in Babylonia at that time preferred a relationship at any price, does that prove it is so for women in our day? Why think so? Do women’s (and people’s) views not change over time?!
Incidentally, even in that sugya there are opinions that distinguish in their rulings between different contexts. Among the Rishonim and Acharonim there are those who maintain that one can annul the kiddushin in exceptional cases (for example, when the levir converted to another religion, etc.). Therefore, at times, courts resort to such annulment, but usually this is done to release agunot or for mamzerut issues, and not to permit the woman to marry. Some decisors wrote that the permit when the woman finds herself with a mukeh shchin applies when the mukeh shchin is the levir, but not when the husband himself is a mukeh shchin. That is, it is a permit to exempt her from levirate marriage but not to permit her to marry—precisely as in our case. Here you have a precedent for Rabbi Zevadya Cohen’s approach. He too annuls the kiddushin only when it is a matter of permitting mamzerim or of agunah in retrospect, but does not permit a woman to the market on the basis of such a consideration.
But as noted, even if such precedents exist (and there are many), in my eyes they are utterly illogical. I do not accept the approach of palginan psikta for logical reasons (detailed above), even if it has precedents. Such a permit is not a gift the judge bestows upon the woman; it is her halakhic-legal status. If that is indeed her status—then any woman in such a situation is permitted; and if it is not her status—then no one should be permitted.
Leniency in Times of Exigency
A similar question can be raised with respect to lenient rulings in times of exigency (sha’at ha-dechak). This approach is well grounded in halakhah, and its source is already in the Talmud, where we find in several places: “It is proper to rely on Rabbi Shimon in a time of exigency” (see my article on leniency and stringency). Here too, ostensibly one should ask: if the halakhah is X even though there is an opinion that holds Y, why is it permitted in a time of exigency to rely on those who hold Y? How is that different from simply permitting a prohibition in a time of exigency? Seemingly, even leniency in exigency is a precedent for the approach of palginan psikta.
In that article I cited that the Rema, in the introduction to Torat HaOlah, wrote that he does not permit anything in a time of exigency unless the matter is permitted by law. In such a situation one may instruct stringency in normal circumstances, and in a time of exigency one may follow the primary law. But this too, to my mind, is puzzling—albeit in the opposite direction. A decisor is not authorized to instruct an obligation to be stringent; at most he may recommend that the questioner be stringent. When asked what the law is, he must answer what the law states (in his view). Stringencies are a matter for the individual and not for the decisor. Only the Sanhedrin can add clauses to the law and turn what is “fitting” into something binding.
I explained there that if it is a case of doubt in the ruling, perhaps this can be understood. As a rule, in doubt one must be stringent (at least in biblical law), but in a time of exigency one may be lenient. One may object here as well: the rule that biblical doubts are ruled stringently is part of the law—so how can one violate the law in a time of exigency? To this I answered that perhaps the rule permitting leniency in a time of exigency precedes the rule that biblical doubts are ruled stringently. That is, the rule of stringency in doubt instructs us that if we have no way to decide between the two sides we must be stringent (in biblical law). But if there is a way to decide (even if not to decide what the “true law” is, but to reach a halakhic instruction for this case for any reason whatsoever), then the rule instructing stringency no longer applies. Add to that the assumption that halakhah permits choosing a lenient path in times of exigency, and you get that we are now in a situation that is not doubtful (because there is a decision to one side by virtue of the “time of exigency” rule), and in such a situation the rule of stringency in biblical doubt does not apply.
But all this is when dealing with a time of exigency. In our case both are times of exigency: both permitting a divorcée to a kohen (they wish to marry) and permitting a woman to the market (agunah). Thus, if we are in a state of doubt (see above that this apparently was not the case), then we can be lenient in both cases. And if there is no doubt, we should certainly rule leniently in both. I do not see justification to rule leniently to permit her to a kohen and stringently regarding permitting her to the market. Moreover—as I already noted—the distress of an agunah is far greater than the distress of a divorcée to a kohen, for the agunah cannot marry anyone at all.
I am unaware of any halakhic basis to instruct following an incorrect position when it is a lighter biblical prohibition but not when it is a more severe biblical prohibition. And if it is the correct position, then one should rule so in both cases.
The Connection to Palginan Dibura / Credibility
Another basis for the approach of palginan psikta may perhaps be found in the sugya of palginan dibura (splitting a statement). Hence my use of the term “palginan” here as well. The standard case of splitting a statement appears where Reuven appears with Levi and both testify that Shimon lent to Reuven with interest (see Sanhedrin 25a, Bar Benitos, and the parallel in Sanhedrin 9a regarding “So-and-so sodomized me willingly”). The borrower is considered wicked (for paying interest is also a prohibition that disqualifies one from testimony) and is ostensibly disqualified as a witness. Thus Reuven, by his testimony, renders himself wicked, since he testifies that he himself borrowed with interest; therefore, according to his own testimony, he cannot serve as a witness against Shimon. The Amoraim dispute this law, and the halakhah follows Rava that palginan dibura: we accept Reuven’s testimony against Shimon but reject the part of his testimony that concerns himself. Reuven is thus not wicked, and he can join the second witness to testify against Shimon. This is called “splitting the statement.”
The Acharonim[1] cite a similar mechanism they term “palginan ne’emanut” (splitting credibility). The case adduced to demonstrate this (see another example here, regarding the law of “yakir”) is the Talmud in Yevamot 117a regarding a woman’s credibility to say that her husband died: although she is believed to permit herself to the market, we do not seat the heirs in the inheritance on her say-so. Seemingly, if we rule that the husband died and therefore permit her to marry, why not also seat his heirs in the inheritance? The Acharonim explain that this is a case where we split the woman’s credibility and not her words. Here it is not that we accept only half of her testimony. We accept her testimony in full—that the husband died—but we apply it only regarding her permission to marry, and not regarding monetary and inheritance laws.
We thus have a case where we apply the very same ruling for one purpose and not for another, and therefore this is closer to our situation (palginan psikta). Just as we saw above, here too one can ask what I asked about palginan psikta: if the husband died, why not seat the heirs in the inheritance?
But on further consideration one can discern that there this is not, in essence, a rule of splitting at all. It is the consequence of the fact that the evidentiary threshold in monetary law is higher than the threshold required to permit marriage. For monetary matters we require two witnesses, whereas to permit her to marry one witness suffices (the Sages were lenient because of iguna and relied on the presumption that a woman carefully verifies and then marries). Thus, if one witness comes, it is clear that we may permit her to marry but we cannot seat heirs in the inheritance. The outcome is palginan psikta, but it is the product of existing halakhic rules and not of gifts handed out according to the judge’s discretion.
If so, that law is not really analogous to our situation. In our case there is no difference in evidentiary threshold between the laws under discussion, only a difference in severity. And again, had the Talmudic Sages or the Sanhedrin enacted a special ordinance to be stringent in the laws of permitting a married woman such that we do not accept claims of mekach ta’ut—fine. But a decisor who cannot change the law and can only rule according to the existing law cannot permit a divorcée to a kohen and prohibit another woman to marry under her husband. Therefore the mechanism of palginan ne’emanut does not seem a relevant source for such a distinction.
Expected-Value Considerations
It appears that the judges here made expected-value calculations. They say thus: indeed we have some doubt, but most likely this is a case of consent in error. If so, we can permit her to marry a kohen, for even if we erred, the harm caused is not very great (the prohibition is relatively light, a lav), and her need to marry the man she loves outweighs it. But we cannot permit her to the market, for there the harm, if we erred, is immense (a severe prohibition of ervah), and her need to marry does not justify it.
But this explanation is problematic for several reasons. First, as I explained above, there are laws regarding doubts and majorities. If the law is that in such a situation one may be lenient in biblical law, then one should be lenient also for the agunah. And if not—then one should be stringent also for the divorcée. That is with respect to making expected-value calculations in halakhah at all. But even the expected-value calculation itself seems problematic to me. The need of a woman to be released from her agunah status is far greater than the need of a woman to marry a kohen. True, they want to marry; but if that is not possible, they can find another partner. By contrast, an agunah or a woman denied a get, if we do not release her by annulling the kiddushin, may remain an agunah for the rest of her life. So how did the judges arrive at an expected-value calculation that prefers permitting marriage to a kohen over permitting to the market? In marriage to a kohen the need is small and the harm is small, whereas in permitting to the market the harm is great but the need is also great.
Conclusion
In conclusion, considerations of palginan psikta are found not infrequently in halakhah and are not an invention of the Rabbinate and its courts. And yet these matters appear to be utterly illogical. Such a permit is not a gift at the judge’s discretion. If the woman is permitted, he is to instruct her that she is permitted, and if not—then not. He has no discretion in the matter.
In closing, I refer readers to the excellent article by my friend Nadav Shnerb, “The Jewish Ark of Lies.” He explains there that the praise for a judge who sees the questioner before his eyes and tailors the ruling that suits him is an overreach of authority and, in fact, a halakhic falsehood. The halakhah is not entrusted to him, and he cannot distribute gifts at its expense according to his fancy. In my understanding, palginan psikta is another example of such a falsehood.
[1] See for example Kovetz He’arot §21; Kovetz Shiurim, vol. II, §3; Sha’arei Yosher VI:11—all of whom link this to the Amoraic dispute about the rule of palginan dibura.
Throughout the post, the basic argument (“It's worth the risk, but it depends on how much”) is not really attacked. One can argue about the decision, but it is a completely normal tradeoff.
His ranking (from serious to easy – wife of a man, prevention of marriage, divorcee to priest) is quite logical and quite intuitive. We all make similar decisions in every field, from warning about Corona to purchases at the supermarket.
This is exactly what I called the consideration of expectancy, and I explained why it is incorrect in my opinion.
I'm curious if there is a poske who tried to use the norm of "Tev Lamitav Ten Du Malmitav Armelo" to allow women who are agunah whose husband's whereabouts are unknown. Can't it be said that I got married without his consent?
There are certainly some, quite a few. And they rejected their words on a technical basis. According to this, there are no agunot in the world, and the Talmud is full of discussions about agunot. Note that even if the husband appears later, he can still say that she did not get married because she wanted to be alone for years. But this is a technical consideration. Essentially, there is certainly logic in this argument.
And really, the question of the limit, how extreme does the situation have to be for us to cancel her consent, is a very difficult question that I do not have a good answer for. It is common to say that if they lived together for years in peace and happiness, and something arose later, it does not retroactively cancel the consent. But his being gay is probably a fact that was always true.
In the case of B”D 7’ in B”B P”B
On the face of it, a woman's inclination does not require her to consent to marriage, because if the husband overcomes his inclination and lives a normal married life with her in love, she should not have a problem, after all, everyone has a tendency that he overcomes. A problem can only be apparent if one manages to prove that he actually realized his inclination in those very days.
And if he began to realize his inclination only after years, we apparently enter the question of ‘adata dehki’ In a future matter, which in this means that the Mahram has no place to cancel the Kiddushin if the brother converted after you married, and also as I mentioned below the Rabbi's method that in a bilateral matter they do not say "Adaeta Dehki" and therefore only in their hearts (where the husband no longer has a wife, they should cancel the Kiddushin) they say "Adaeta Dehki". Therefore it is very difficult to be lenient before the divorce is granted.
With blessings, Eliam Fishel Werkheimer
1 Regarding the question of whether the court permits or the court reveals facts –
The court ordered the marriage to be performed, and the halakha and the halakhah, the rabbin, must accept that it did not permit it but to be performed.
It is also clear (for example in the Tosafot Gitin 3g) that the cancellation of a child marriage is the authority of the court and does not happen anyway, at least in some cases of cancellation of a child marriage. In the case described there in the Tosafot, there is a solution that the courts use, which I believe is called a get from the resh”m. In short – especially in issues of agunot permits, the court has involvement and flexibility and authority (and they use it in a way that as yeshiva students when we heard about permits for bastards, we were horrified)
2 The various mechanisms of the factions are loyal – which, in general, mean that there is sufficient certainty for certain things but there is concern in other cases – they are not that rare and very intuitive. True, one can argue “either yes or no”, but an estimate of opinion is never absolute. Therefore, it is very likely that a judge sitting to discuss the laws of the donkey man's wife will be strict, and with regard to the prohibitions of the law, he will rely on circumstantial evidence to be lenient.
3 The assumption that Reish Lakish's words are the reason why kiddushin are not canceled does not mean that his words are the only reason why kiddushin is not canceled. There may be additional reasons, but at the time his words included them as well, and if his words are irrelevant today, the other considerations are still relevant. For example, – Most people do not enter the chuppa with a team of actuaries, and therefore it is likely that at the chuppa the woman intends to be sanctified under any conditions. If they had explained to her that the groom had stolen, she would have fled the chuppa, but would have returned the next day. The readiness to marry is also an emotional event and therefore not necessarily a future consideration that will change it
4 There was room for stricter measures specifically in the case of marriage to a priest, according to the Gemara in Gittin 12 that a divorce that does not permit a lifetime still prohibits a priest, and therefore it could be said that a divorce to a minor also prohibits a priest. In short, the two issues are not completely dependent on each other
5 The Rema, of course, is prioritizing the law of sin and not the law of the offering (both according to the context and because I checked).
But if the Rema does indeed believe that this is our way of ruling, and all the poskim from that time to this day have accepted his words, does the Rema (Rabbi Michael Avraham) not see a reason to listen to the Rema's opinion and at least consider the possibility that this is the correct way to rule halakhically, to create a continuum of ruling, from Rema to Rema, and not a Ram? The fact that it is illogical to rule in this way is not convincing in light of the Ramban's well-known words on the wisdom of deduction, meaning that "illogical" is not necessarily a valid argument, unless we have an internal halakhic argument that does not rule in this way.
1. Here it is a question of rape or accidental, and therefore not related to the subject of the discussion. A teaching of the Jewish Law can turn accidental into rape. You are right about the annulment of a sanctification, but it is only an annulment by virtue of the mechanism of “every temple is a temple”. The annulment in question here is a revelation of an existing situation (that there is no sanctification) and not an annulment. This is a common confusion.
2. I explained in the column why the loyalty faction is not related to this.
3. The words of the R”l are supposed to take into account all the considerations you raised. In any case, all my words stand in their place, without any connection to the R”l. Factual, it is clear that the substantive claims against me were all based on the R”l. There were claims about halakhic policy (which is irrelevant in light of what I explained in the column here), but essentially/plan it begins and ends with the R”L.
4. Indeed, the law of the smell of divorce.
5. Indeed, a keyboard error. The law of sin. I said nothing against the Ram”A. Only against the ambiguity in his words (that I would present a homrah as if it were the essence of the law). But there is nothing in his words against my principled position. On the contrary, his argument there is exactly the same as my position: a posk cannot deviate from the law (I am only arguing that neither for the kollah nor for the homrah).
Matters of the wisdom of deduction are not relevant here. The Ramban says that beyond logic there are other considerations. But logic is a necessary condition (even if not sufficient). It is true that not all rulings are the result of logical considerations alone, but it is impossible to rule on something that is clearly illogical.
The Rabbi's considerations of expectancy and attack on them all point to the differences in the courage and character of the posk.
In the Rabbi's opinion, the correct consideration is the damage and sorrow caused in the event that an agunah is not permitted. But for an ordinary posk, educated in the "regular" midrash, deviating from the accepted view, even though it is not correct, is more dangerous than anything else, even if it means leaving an agunah in its place ("What is my opinion worth compared to all the great men of Israel who left an agunah in its place and permitted more serious things?").
Only a person with independent thinking and courage (which is not at all common among posks today) is able to say that there are considerations of expectancy that are preferable to the fear of being considered an independent posk or a posk that does not follow the accepted view.
In other words, the lifespan of people varies according to their character (already in the Talmud we see that there were such differences between Tan'im and Amoraim. There were those whose fear of the teaching prevented them from deciding halakhic matters independently, and there were those who followed their own opinion to the end, even against the consensus).
No. I argue that considerations of expectancy are incorrect in such a case.
A. If something is an accepted halakhic policy, why is it not considered that there is “public acceptance” of this law?
B. Can the public accept, regarding facts, to behave in every case as if the facts were so and so?
In the rabbinical tradition, the rabbis
Lett. G. Shalom Rav,
Indeed, the sages taught us that there is not only a “public acceptance,” but a personal acceptance of each couple who is consecrated, that each rabbinical temple is a sacred temple, that in each case the couple accepts the rulings of the rabbis, the exact rabbis, the royal road accepted by most rabbis.
Without such acceptance, a normal system of life cannot exist. A married couple will be forced to feel the individual opinion of the rabbi. who will claim that their kiddushes are invalid, and a divorced couple will not be able to feel secure, lest some ‘man d’ individual will decide that their divorces are invalid. Thus, no couple is ever certain and does not know for sure whether they are married or separated.
This abnormal reality is avoided when there is a commitment by everyone to the common law, which most poskim hold, and then whoever is married ‘adēta rabbinan’ is married, and whoever is expelled ‘adēta rabbinan’adēta rabbinan’ is expelled, ‘and also all this people – may he come in peace’
With greetings, Yaron Fish”l Ordner
Paragraph 1, line 2
… that the spouses thereby accept their ruling…
And for the body of the discussion,
Apart from the simple explanation that a higher level of certainty is needed to permit a man's wife to marry without a divorce, which is a prohibition of keret that may also cause a disqualification from bastards for generations on the descendants – There is also the difference of opinion of the Rabbis (in the Toss’ Ketubot 2:2, 5, etc.) that, unlike a gift, it is sufficient to estimate that ’adeda dehaki would not have given’ – in kiddushin, an estimate of the knowledge of both parties is needed that ’adeda dehaki did not agree to be sanctified, and therefore during the husband's lifetime his kiddushin cannot be forfeited on the assumption that Masma did not sanctify –adeda dehaki. Only after his death, when he no longer has the need and desire to perform the kiddushin – It must be said that his desire is that the Kiddushin be revoked retroactively so that his widow does not fall before the rabbinate.
And so it is in our case. It is not clear that the husband intended the Kiddushin to be revoked in the event that the wife wants to divorce him against her will. But the reasonable husband would agree that in the event that they have already divorced and he has no more issues in their existence - that the Kiddushin be revoked retroactively so that the wife is not prevented from marrying a priest.
With blessings, may God bless you
In general, the entire discussion would have been more effective if the author of the post had bothered to obtain the reasoned ruling, and then it would have been ‘bread and meat’ to hold a substantive discussion, there is no point in holding a halakhic discussion based on an article in a newspaper.
The addition there is irrelevant to the discussion, as I showed in my above articles. In any monetary transaction that has two parties (as opposed to a gift), it is like a kiddushin. And in transactions, they are annulled on the grounds of adatah dehaki, and certainly on the grounds of a mistaken transaction.
The Rabbi there believes that in a gift that requires only the knowledge of the property, they say that it will be annulled because “the knowledge that he did not give,” and that kiddushin are similar to a gift only after the husband dies and there is no delay on his part, so that the kiddushin will be revoked retroactively due to the wife’s need not to fall before their father, but that the kiddushin will expire retroactively during the husband’s lifetime, they did not say “the knowledge that he did,” since it is a bilateral transaction.
What you tried to prove there is that even in a bilateral transaction, they say “the knowledge that he did not give,” because that is a two-sided transaction.
It is not correct, because there was an explicit discussion between them that the purpose of the sale was to immigrate to Israel, so there is an understanding between both parties that the transaction is a “deceitful agreement,” but without discussion between the two parties, there is no room in the Rabbi’s opinion for unilateral cancellation because of an estimate of “deceitful agreement,” but rather the husband has already “exited the transaction,” such as if he died, and therefore there is an estimate of opinion that he too would agree that if a problem arises after his death that their hearts should be broken, the consecrations should be canceled retroactively.
And in the same way, we can also say regarding Didan, that the husband will agree to the retroactive termination of the child marriage after they have separated, but not to the retroactive termination of the child marriage in order to force them to separate, and according to this, there is no difference in the ruling of Rabbi Zebadiah HaCohen in the rulings of the ‘Pelginan Pesikuta’.
With blessings, Yaffo”r
Why did you claim in this post that the estimates of the past, such as the one in the Tendo family, do not necessarily apply today and need to be examined at any time and in any case on its merits?
In my comments (under the title of Nik Shtzel Levinger 🙂 to column 148, I mentioned the words of the House of Levi, that even in the time of the Sages, most women were not prepared to marry a husband with a serious defect, but since there is a certain percentage of women who are prepared to accept the husband despite his defect, it is impossible to determine in a blanket manner the cancellation of the kiddushin, since she would have had to explicitly stipulate this.
Even today, there are women whose love “spoils the line” . The willingness to stay with a husband who is terminally ill or a criminal and/or has a serious mental problem, and according to the ’Beit Halevi’ – even if it is a minority, this requires the careful wife to stipulate this in advance.
With best wishes, Ya'far”r
The excessive anxiety that grips the halachic poskim in permitting a man's wife based on an estimate stems not only from the severity of the "prohibition of recognition", but also from the fear that an estimate that is later found to be insufficient - may cause the descendants of the woman who marries according to the erroneous permit to have a defect for generations of bastards.
Therefore, in permits for an agunah whose husband has disappeared, the poskim are accustomed to requesting the consent of additional elders, so that several opinions will examine the permissive judgment and thus strengthen confidence in the solidity of the permit.
And for this reason, in the event that the husband is alive, the poskim will prefer to convince or force him to grant a get and/or to seek a disqualification in the presence of the witnesses of the consecration, in which case there is an "accumulated mass" of considerations to permit, and the judge's confidence in the correctness of the judge's permit increases.
With greetings, Yafa,
There is no such concern here, as there are no children whose status depends on the ruling.
This is a strange position, and even most of the rabbis who disagree with me do not agree with it. Therefore, I would not rely on it. It is clear that one follows the majority and the reasonable person in estimating opinion.
It's hard for me to get into the issue again now. In the article I explained how my words are consistent with the words of the Toss. It's clear that in the end, everything is a question of opinion, and when there is an opinion, everything is null and void.
I didn't read the ruling because I didn't refer to it. I used it to demonstrate a common idea in halakha that I don't agree with.
[R’ I don't know if you intended to respond specifically to my response, but I don't know how to enter into the body of the halakhic discussion on the subject and am forced to observe from the outside]
The public cannot accept that a pig is a cow and allow it.
You wrote in the column, “And again, if the sages of the Talmud or the Sanhedrin had established a special regulation to tighten the laws of permission for a man’s wife not to accept claims of “mistake” – fine, but a judge who cannot change the law but only rule according to the existing law cannot allow a divorced woman to marry a priest and prohibit another from marrying under her husband.”
And finally, you wrote, “Considerations of the ruling faction exist in the law quite a bit and are not an invention of the Rabbinate and its courts. And yet, things seem patently illogical. Such permission is not a gift that is left to the judge’s decision. If the woman is permitted, he is supposed to instruct her that she is permitted, and if not, then not. He has no discretion in the matter.”
I didn’t understand how the two things fit together. If something (plaginan psikuta – lahumura) is an accepted policy in halakhah, then it is “public acceptance” exactly the same as accepting the Gemara. After all, accepting the Gemara, that is, some process of fixation until it is resolved and completed, would not be more powerful and special than accepting such a principle if it has been prevalent in halakhah for centuries (if it is true that ”plaginan psikuta considerations exist quite a bit in halakhah”).
One can argue about the very law that that judge is not willing to permit a man's wife in such a situation, but his authority to prohibit a man's wife in such a situation – even though he permits such a divorced woman to serve as a priest – That is, his authority to take a strict line of legal decisions (and in this case not to accept claims of wrongdoing against a man's wife) is anchored in public acceptance (according to you, there are quite a few considerations of legality in halakha), and according to your well-known opinion that public acceptance of the Gemara as a formal authority is the foundation of all halakha, then it is exactly the same as if this policy of legality were written in the Talmud or issued by the Sanhedrin. Why not?
The determination not to accept claims of a mistake in Kiddushin is a regulation, and a body that can correct can determine this. But here we are talking about a judge who arbitrarily decided on a specific case that came before him. If there had been a complete consensus around something clear, perhaps there would have been something to talk about. But a judge's decision that something seems or doesn't seem to him has no meaning.
I did not see in your words any reference to another aspect, which I assume was included in the original ruling –
The status of a priest in our day.
It seems to me that this is at least a matter of dispute among the rabbis whether our priests are priests who are held in every respect (for example, eating a Torah offering and challah, etc.).
And if so, in permitting a divorced woman to become a priest, there is also a party who may not be a priest, and in that case the prohibition is less severe, since it is a man's wife.
Maybe. I didn't read the ruling. I just used this passage to attack common halachic conduct (plaginan). If it's about the difference between a doubter and a doubter, then it really doesn't concern me. But that's not what was described in the article (it's true that the article may be wrong and the passage does say that).
Do you disagree that there is a concept of teaching other than the mere revelation of truth? What about a sage who forbids, his friend is not permitted to permit, and according to the words of the Mecha, why not? He only says that in his opinion it is permissible and nothing more? And in the Ritva on Tractate Chulin it is written that what needs to be made stricter in a dispute over the Torah is not when two sages disagree on the same passage, and in this case, the Mecha is permitted to be lenient, as the Mecha says.
Could you please specify the address of Ritva?
Sorry, page 7, page 1, we were when we suddenly parted ways.
Thank you. The Ritva there says that if they were divided at once and they are equal, then in that piece one can rely on the stick (and only in another piece one needs to be stricter if it is from the Torah, unless the stick is “thick and unsound” and not from the explanation, then even in another piece and in the Torah one can rely on it). What did you come to conclude from this Ritva?
By the way, I did not understand the Ritva and maybe you can help me. He writes there that what needs to be stricter in the Torah with equals was “precisely in another matter, such as the one in which these were divided, but in the same piece itself in which they were divided – since they are unequal, etc.; there is no prohibition ruling that applies to that piece’. And he brings evidence to this that the House of Shammai permitted the daily division of the daughter to the brothers (i.e., they permitted the division of the daughter to be committed to the brother who is the father of the daughter, and in the House of Hillel it is forbidden to the brother and the child is a bastard) even though they knew that the House of Hillel forbids it.
This means that all the division of the daughter that comes before us are considered the same piece that they disputed, even though this woman (the division of the daughter) may have been born seven years after the dispute. But if so, what is “in another matter similar to the one they disputed”? Does the piece mean “the principle” or “the object”, if it means “the object” then seeing the division”a is apparently evidence to contradict it, since they permitted new wives. And if it means “the principle” So what is “in another matter similar to the one they disagreed about”, if it is not the same principle then what is the connection at all, and if it is the same principle then it is the same piece.
And I still don't understand his view from Beit Shammai, because perhaps (and probably) Beit Shammai did not think that Beit Hillel were equal to them, and after all, the entire ruling in the Torah that followed the stricter is only in the equals.
A. I wanted to provide evidence that there is a concept of a “teaching” from the Ritva that the rule of following the stricter one in the Torah is precisely where the Sage did not instruct the lenient one in that particular piece and I am doubtful, but when the Sage instructed to lenient in that particular piece I can rely on the Sage’s instruction.
B. The Ritva provides evidence from the fact that the Sage himself permitted the women who came before them to marry, that the Sage himself is permitted to lenient and the questioner is permitted to rely on him since he has a teaching on that piece rather than on another piece. And in every case of a daughter’s difficulty, a special teaching from the Sage is needed!
C. Regarding the great in wisdom and in the number of cases, see the Ritva regarding Rav Huna bar Hanina and Rava
A. Maybe you are right, but I understood it a little differently. There is a “prohibition” for a prohibition that renews a prohibition, such as the one that is worthless, and there is no “prohibition” for a permission that renews a permission. And by this the Ritva says that a sage who ordered a prohibition renews a prohibition (additional, slight) for all the pieces, and a sage who ordered a permission does not renew anything, and therefore we had to prohibit all the pieces, except for the one piece in which the permission is stated, which blocks the application of the prohibition. It is like the rabbinic opinion that they do not abrogate what is explicit in the Torah, even though there is apparently no real difference between explicit and required.
B. Thank you very much. (But I have a hard time understanding the explanation for this. If chicken in milk was a Torah law, then anyone who did not live in the place of Rabbi Yossi the Galilean would come to him every morning with chicken in milk and hear "permitted" and only then eat? I am pretending to be a fool. But it seems that this is indeed what the Ritva says.)
C. I saw it of course before I wrote, and yet I do not think it is similar. It is likely that no one in his generation can think or advertise that he is greater than a rabbi. But in the rabbis they were both firm and sharp-tongued (and in the rabbinical court itself, Jonathan ben Harchines from Beit Shammai told Rabbi Akiva that he did not reach the herdsmen of cattle).
Such a teaching can have implications for the laws of spikot. If there is a teaching from a sage, the rule of doubt from the Torah to the grave does not apply. But if I know that he was wrong, it is clear that he should not be listened to. Even in the Sanhedrin, there are those who err in the mitzvah of listening to the words of the sages.
Not disputed. Depends on where and who. Regarding a sage who forbade it, it is irrelevant where the truth is clear and the first sage was wrong.
Rabbi Michi, did you show the wonderful words of the Ritva that he brought and explained in the diaspora? It seems that it does indeed say there are cases in which even if someone knows exactly and with certainty that the rabbi is going to grant permission, he must hear the rabbi's permission in his own ears regarding the specific case before him, and must be sufficiently wary of the words of another rabbi who is more strict. What is the meaning of this matter?
I haven't seen it, but from your description I don't understand the difficulty. It's possible that this is a person who is not very wise and cannot act according to his own position. Therefore, in the laws of sufficiencies, he is supposed to treat such a situation as doubtful, but they instructed him in a different interpretation. It's all a question of the person's behavior, not of the law itself.
Indeed, that is what is being discussed there [two balanced sages disagreed at once, one who stands by his own opinion acts according to his own opinion even to the point of being harsh, but another, due to Torah, followed the stricter one because of doubt from the Torah to the point of being strict, but if he went to a rabbi who permits and heard the permission, then he is permitted. Therefore, Beit Shammai continued to instruct the permission of the rabbi to the brothers even though Beit Hillel forbids it, and whoever came before them was permitted to listen to their words. And it seems that the Ritva says that one should hear the permission on each case for itself and not on the principle].
But how is it that there is a difference between a person's behavior and the law itself? If I know for sure that the rabbi is going to tell me it is permissible (the rabbi's rabbi, for example), just as a can machine says thank you very much after I buy a can, then what is the use of hearing this from the rabbi?
If the rabbi's lip curl has such a significant impact, then perhaps he too can take money for such instructions and sell instructions only to those who pay enough. After all, everyone already knows his opinion, and all he needs to do is furrow his eyebrows and make the sound with his lips. It is permissible for each case to be repeated, just as one pays money to singers to hear their voices (as it is said, "Singing songs were my laws").
It could just be a fear that someone who is not a rabbi is not really right in what the rabbi tells them.
I thought that if this were the case, then not only in the dispute but also in the question of whether the daughter's tribulation is permissible for brothers, one would have to hear directly from the rabbi, right?
Here the risk of making a mistake is smaller.
The view that says again to the Ten Two claims that the sages were saying something more psychological and mystical here, like Freud talking about the conscious ass, so it is assumed that the sages were saying about the subconscious that a woman prefers hallucinations to solitude, therefore bringing proof from what a woman says consciously is ridiculous.
So what meaning does it have to be conscious if no one has access to check it and the woman doesn't really feel that way? In the end, the judge has only what his eyes see, and even if in Halacha there is a meaning to a person's intentions, we don't find that there is a meaning to intentions that he is not aware of directing them, it's just a joke.
In short, it is ridiculous to bring factual evidence. Don't confuse me with facts. Apparently, the Sabbath that must be kept is not the seventh day but a mystical Sabbath (the Sabbath of the soul). And the best thing is that I am the ridiculous one here…
And as mentioned, the great jurists made exceptions to this rule in situations where it is clear that the woman is not willing. They are also probably ridiculous. They did not understand that this is mysticism at all.
If someone came to Freud and claimed that they didn't feel they had an Oedipus complex and that was proof that he was wrong, would you agree that it would be ridiculous? Not ridiculous in the sense that he was wrong, but that it was simply not at the same level that Freud spoke on, he didn't say anything empirical that could be argued against “I don't see it”
And it's pretty clear that the sages didn't say this assumption as something that was obvious and everyone knew, so they weren't needed, they said it even though on the outside it seemed that the woman would prefer not to. In any case, they claimed that they had gone deep into the person's mind.
You can not accept what the sages say about something that cannot be proven empirically, but that still does not advance the discussion if there are those who accept what the sages said and trust them, so to come and argue to them empirically “I do not see that this is so” is simply an argument on a completely different level than what they were talking about and therefore it does not help at all.
In short, the level of the debate is all on a certain basic premise that the sages had a deeper worldview than ours, even if they were less scientific. And either they accept it or they do not.
It is possible to explain more simply that the annulment of Kiddushin in relation to my wife, a man, is because the husband's right claims our property (and compare it to the words of the Tosafot in the Ketubot, as I believe on page 44, p. 2), and therefore, if he is satisfied, we will not forfeit his right, since only the wife's right demands expropriation.