The Duty of Disclosure in Married Life (Column 432)
The case and the gap between a moral duty and a legal duty
The column opens with the facts: a woman married a man who presented himself as religious, bourgeois, and Modern Orthodox, and later discovered that even before the marriage he had been living as an actively gay and secular man. The Supreme Court, in a panel that also included judges identified as conservative, unanimously held that there was no legal duty of disclosure here and therefore no basis for damages, even though the judges likely agree that the nondisclosure was morally grave. The rabbi stresses the gap between recognizing the act as morally wrong and refusing to treat it as a legal breach.
Why, in the rabbi’s view, this is mistaken transaction and not just marital disappointment
The column frames the issue through contract law: when material information is concealed at the time a contract is formed, the flaw is not merely in later conduct but in the very meeting of minds. The rabbi distinguishes between a case in which a dramatic change occurred after the contract was made, where one might sometimes speak about implied assumptions or an implicit condition, and a case in which the information already existed and was concealed at the moment of agreement. Here, since the husband knew his situation and concealed it from the outset, the rabbi sees it as a paradigmatic case of mistaken transaction, not as adultery that later arose within an otherwise valid marriage.
Marriage is, both halakhically and socially, a binding contract
The rabbi emphasizes that kiddushin in halakha is a contract in every respect: it contains mutual commitments, requires genuine consent, allows conditions, and is governed by rules of mistake and annulment. One therefore cannot reduce marriage to a merely romantic or emotional ceremony. He adds that secular culture often tends to forget this contractual dimension and to see even adultery as only an emotional failure, but religious people too sometimes forget that in terms of violating the marital commitment, a husband’s betrayal is in principle as serious as a wife’s betrayal, even if the halakhic prohibitions differ. From this it follows that concealing a basic fact about one spouse’s identity should undermine the validity of the consent to the marriage itself.
Why the Court’s appeal to emotion, intimacy, and privacy is unconvincing
The Court held that although marriage has contractual elements, ordinary contract law cannot simply be applied to it because it concerns emotion, privacy, and an intimate sphere that the law should not regulate. The rabbi rejects this. If it turned out that the groom was actually a woman disguised as a man, everyone would clearly see that as a fundamental defect, even though that too concerns intimate identity. In his view, the ability to sustain sexual married life is one of the cornerstones of marriage, and when the obstacle existed from the beginning and was deliberately concealed, this is not merely a matter of a broken heart but of a contract formed on the basis of false representation.
This is not an ordinary adultery suit but a claim that the marriage itself was a facade
The rabbi also takes issue with the concern that recognizing such a claim would lead to the juridification of marriage and flood the courts with lawsuits over infidelity. In his view, that argument misses the point of this case. This is not a damages claim for betrayal within an existing marital relationship, but a claim that the marriage itself was obtained through a foundational deception. It is therefore not a crude invasion of the intimacy of an ordinary couple, but a civil dispute between two people when one of them entered a binding relationship while deliberately concealing a decisive fact. In lighter cases involving professional or social impersonation, courts have already intervened, which makes their reluctance here even more puzzling.
The judges’ criteria seem inconsistent and ill-defined to the rabbi
Justice Wilner proposed distinguishing between financial information, where intervention may be appropriate, and feelings, emotions, experiences, beliefs, and self-definition, where intervention is not appropriate, as well as an intermediate category of essential features of identity such as severe illness or religion and nationality. The rabbi argues that this distinction does not hold. Why should illness or religion be possible legal grounds while homosexuality or secularity are not? What exactly counts as psychological and what counts as identity-based? Even Justice Solberg, who extends the non-intervention zone to religious belief as well, relies in the rabbi’s view on a vague boundary and on evidentiary difficulty that do not justify the outcome.
The conclusion: the Court decided not to intervene and then looked for reasons, and the rabbinate helped create the dead end
In the end, the rabbi sees the ruling as a conclusion reached first, with partial and sometimes implausible reasons recruited afterward, including hints of concern for freedom in forming an LGBT identity. Even if one accepts a general principle of non-intervention in matters of the soul, the column argues that the line drawn here is neither clear nor workable. Alongside the criticism of the Supreme Court, the rabbi also points an accusing finger at the Chief Rabbinate: since, in his view, the kiddushin should have been annulled here because of mistaken transaction, the rabbinate’s refusal to do so pushed the entire matter into the narrower framework of a damages claim alone. In that sense, the rabbinic institution too bears responsibility for the absurd situation that resulted.
Some time ago a Supreme Court ruling was published (see the article by Yehuda Yifrach) that I wanted to discuss here. The case concerned a woman who married a man who presented himself as religious, only to discover that he was in fact a secular man who was an active gay. The question under discussion was whether there is a duty of disclosure on a partner before marriage, and what the implications of this duty are with regard to damages. The Court, in a panel of three justices (two of whom are identified as conservatives: Willner and Solberg; the third was Vogelman), ruled unanimously that this is a private and intimate matter between the spouses and therefore there is no duty of disclosure, and accordingly they also denied the claim for damages. I should note in advance that I read only Yifrach’s review and not the judgment itself, but on its face it seems downright bizarre. What is even more surprising is that the decision was unanimous (in the last paragraph of his article, Yifrach discusses what we would expect from a conservative judge on this issue. The answer is not simple).
The Case
The woman, from an affluent family, made aliyah from the U.S. and met a man whose lifestyle clearly indicated a bourgeois religious Zionist attorney—the very type she favored. The wedding was lavish and cost a fortune, as is customary in those social circles, and the parents continued to invest substantial funds in the groom even after the wedding. But after some time the woman discovered that it was all a façade. It turned out that at night the man caroused with various lovers, living openly as a gay man, and it appears he also did not observe other aspects of halakhah (he desecrated Sabbaths and festivals, etc.). In short, instead of a bourgeois religious man she discovered a secular gay man at the center of the LGBTQ scene. No less important, it turned out that this had begun even before their marriage.
She filed for divorce, and the proceedings were harsh and ugly. In that context she even alleged that he defrauded her in order to lay his hands on her family’s wealth. She later filed a tort claim as well, which ultimately reached the Supreme Court. The panel I described above decided unanimously not to obligate him to pay her damages. The issue under discussion was whether the spouses bear a duty of disclosure in such a case, and whether failure to fulfill it gives rise to a tort claim. I assume that all three justices would agree that one has a moral duty to disclose such a thing to one’s partner, as Solberg writes in his opinion that the judgment does not confer “a moral imprimatur or normative sanction for such non-disclosure.”
But at the same time, all three agreed that this duty of disclosure is not a legal one—i.e., not part of contract law—and therefore there is no duty to pay damages, as there would be for breach of contract or for willful concealment of relevant information.
Rescission of Contract: Mekach Ta’ut
The background assumption is that when two parties enter into a contract, each owes the other a duty to disclose relevant information. If it emerges that material information was not available to one party, the contract is void; and in lesser cases, where the contract is not void, there is still a duty to pay damages.
Another important distinction can be drawn between a situation in which information was knowingly concealed by one party and a situation in which the information was unknown to one of them but not due to any deliberate act by the other (for example, if the husband did not know he was gay). I assume this distinction is relevant only to damages, but that is not our issue here, since in this case it is clear that the information was intentionally concealed.
There is yet another important distinction regarding rescission: between annulment of a transaction based on an umdena (“on this understanding”) and annulment based on mistake (mekach ta’ut). For example, if the husband had become gay after the marriage, then at the time of the marriage the contract was concluded on the basis of full information and a true meeting of the minds. But in our case the husband was already gay at the time of the marriage, and therefore, ostensibly, the contract itself was concluded on the basis of erroneous information and has no validity. This is a situation that mandates rescission due to mekach ta’ut. In several places (see column 148 and here) I have noted that in halakhah there are also situations in which a contract is nullified based on a change that occurred after its formation. The classic example is the Gemara in Kiddushin 49b regarding someone who sold all his property in order to ascend to the Land of Israel but was ultimately coerced and failed to ascend. The Gemara says the sale is void, even though there was no stipulation at the time of sale and even though the information at that time was indeed that the seller intended to ascend to the Land of Israel (see Tosafot s.v. “Devarim she-balev” there). Those intentions did not materialize for reasons beyond his control, and all that happened only after the sale. Even in such a case there is an assumption that if the information is critical and material, there is an implied condition, as if the seller conditioned the sale on his ascending to Israel. Had he known that in the end he would not ascend—he certainly would not have sold.
I will not enter here into my second contention, which aroused considerable opposition (particularly its application to kiddushin). The criteria for when a breach is so material that the contract is retroactively nullified are indeed unclear, but that is not our situation. The relevant information was in the husband’s possession already at the time of the marriage, and therefore our discussion concerns annulment and damages due to mekach ta’ut.
Are Marriage a Contract[1]
In halakhah, kiddushin are a contract in every respect, to which contract law applies. There is a contract between two parties who undertake mutual obligations toward each other, and therefore a meeting of the minds is required from both. One can make conditions regarding kiddushin; there are rules of mistake and rescission, and more. It is no accident that the first chapter of Tractate Kiddushin deals with matters of contracts, acquisitions, and Choshen Mishpat. In my essay here I noted that many tend to ignore this dimension of kiddushin, seeing them as a festive and romantic ceremony. The reading of the ketubah expresses—very bluntly—the legal-contractual dimension of this ceremony, which ought not be ignored.
I have written in the past that in the secular world there is a stronger tendency to ignore this dimension. People there tend to view marriage as a romantic ceremony rather than as a binding legal contract. Hence infidelity is sometimes seen as forgivable mischief (to a greater or lesser degree), not as a breach of contract. It is treated as if it were a religious prohibition of sexual relations (something that bothers only the religious), rather than a breach of contract (which ought to concern everyone). Incidentally, there is an aspect of this contractual understanding that religious people tend to ignore. A husband’s infidelity is a relatively light prohibition, whereas a wife’s is adultery, which carries the death penalty. But that distinction belongs to the realm of sexual prohibitions. From the perspective of breaching the contract between the spouses, the husband’s infidelity is as severe as the wife’s. This obviously pertains to the social-legal contract the couple make with one another, not to the halakhic contract between them.
For Our Purposes
As we have seen, marriage is a contract in every respect. Not exactly a monetary contract (though it has monetary aspects), but a contract in the domain of personal status. It is self-evident that the parties’ meeting of the minds is required for marriage. From here it would seem to follow that when critical information is concealed from one of them, a material defect has occurred in that meeting of the minds, and therefore the marriage should be annulled. Consequently, one should also discuss liability for damages due to breach of contract (though in halakhah there is apparently no such damages remedy).
To be sure, annulment of the marriage is within the mandate of the Chief Rabbinate and not the civil court (though in my non-professional assessment a civil court might perhaps annul a marriage in such a case). The Rabbinate should have annulled it by reason of mekach ta’ut. But the Rabbinate, true to form, of course did not annul the kiddushin; rather, it led the couple to grant a get. Therefore what remained for the court to consider was only the duty to pay damages.
The Ruling
The Court wrote that while marriage has contractual elements, it cannot be adjudicated under contract law as such. The justices’ main contention was that this contract concerns matters of emotion, which cannot be adjudicated by a court. Vogelman writes: “The law was not designed to heal a broken heart,” and Solberg writes: “Emotions are not a commodity and are not to be traded. Emotions do not constitute a proper subject of a contract.” Solberg cited the legal scholar Nili Cohen, who wrote:
It is quite difficult to determine whether a breach has occurred when the duty lies, in whole or in part, within the inner world of the contracting parties. The natural arena of contract law is the marketplace. Spiritual or psychological realms lie outside the traditional domain of contract law.
I truly cannot understand this claim. If it turned out that the “man” was in fact a woman disguised as a man, would they also say that this is not a breach of contract because it concerns matters of emotion? Beyond that, our Sages have already taught that “everyone knows why a bride enters the canopy,” meaning that the sexual relationship is a cornerstone of the marital bond, and when that cannot take place properly it is hard to see how there is not a fundamental breach of the contract. Even infidelity with someone else can be regarded as a ground for annulment based on umdena, but if the breach was embedded in this contract from the moment of its formation, then it is certainly a ground for annulling the contract due to mekach ta’ut. Any reasonable woman asked would say that had she known her husband was gay, she would not have married him. These are matters in her heart—and in every person’s heart—and therefore they are not merely subjective “matters of the heart” or “of emotion.”
Justice Amit’s words are quoted by Justice Willner, and he wrote as follows:
Given that infidelity in married life is a common phenomenon, opening the door to lawsuits for adultery and betrayal may flood the judicial system with claims and lead to the juridification of married life.
And he further writes there:
Lawsuits of this sort will not bring healing to the wounds and pain bound up with a spouse’s betrayal. On the contrary, they are like obsessively scratching a wound, delving into the most intimate and private corners of the litigants’ lives and causing suffering to all involved… Litigants in our country would do well to internalize that legal proceedings are not a cure-all. It is hard to accept that, in the name of protecting privacy and preserving the family fabric, the law would storm into the most private and intimate space of the parties.
Amit understands that at least in a healthy society in which infidelity is not the norm, there would be room to view it as a breach of the marriage contract. But here we are dealing with a gay spouse, and this—someone who presents himself as straight and marries a woman—is by no means a prevalent phenomenon.
But note that Amit is speaking about a claim for damages due to infidelity. Even if I accepted his words, for the sake of argument, here the damages claim is not for infidelity but for breach of the marriage contract itself. The marriage is void, and this façade is an excellent ground for a damages claim. This is not an incursion into the private domain—into the intimacy between the spouses—because there are no spouses here. They are not married. Hence this is litigation between two individuals in our society. The law’s unmistakable role is to regulate relations between different people in society.
To be sure, as I noted above, the annulment of the marriage should have been determined by the Chief Rabbinate, and once it failed to do so, we entered the realm of damages (or “remedies,” in the parlance of our legal cousins) and litigation between spouses. From there the door was opened to the unfounded statements cited here.
Yifrach himself notes that the courts have not infrequently entered contractual questions regarding relations between partners. For example, people who posed as Mossad operatives or senior officers and persuaded women to marry them. Such cases are a joke compared to this one. A woman for whom it matters that her partner is an officer or Mossad agent is indeed a strange woman. That is, of course, her right—but here one could say that this is a private matter between partners, each with his or her taste. That is not the court’s business. But our case is a clear one that does not depend on the taste of this or that woman, but on matters that lie in the heart of every person.
Justice Willner proposed criteria for situations in which it is nonetheless appropriate for the court to intervene:
Justice Willner proposed dividing into three categories: the court will intervene when one of the spouses fails to disclose material information in economic matters—for example, where one party hides overseas investments in the context of a divorce dispute; by contrast, it will not intervene when the non-disclosure concerns “intimate and emotional contexts, including a spouse’s feelings, emotions, intimate experiences, self-definition, opinions and beliefs.” In the third category, the court will consider intervening in contexts relating to “material components in a spouse’s life and identity,” such as a severe chronic illness, or belonging to another religion or to another nationality.
A serious illness or concealment of assets are indeed grounds for legal intervention—but being gay is not? I cannot make sense of these peculiar criteria. True, economy and illness are not matters of the psyche—but viewed this way, perhaps homosexuality is not either. And what of belonging to another religion or to another nation—is that not a matter of the soul? Can a woman not fall in love with a man of Belgian nationality or someone with cancer? These, too, are intimate matters of the soul. In addition, I do not understand why being secular differs materially from belonging to another faith (though one could quibble about this).
Solberg, by contrast, explicitly mentions religious faith among the matters in which intervention is not appropriate:
“The law should refrain from intervening in the intimate-emotional relations between spouses, in the secrets of their hearts, the treasures of their souls, and their beliefs,” he wrote. “Sexual orientation is bound up with a person’s inner and intimate feelings, desires, and passions; religious faith lies deep in the recesses of one’s soul, derived from the command of conscience. Whether these facets of a person’s life are not static and unchanging, spread along a spectrum that varies from person to person, or not—proving them under the rules of evidence is exceedingly difficult.” In this context Solberg cites the wisest of all men in the Book of Proverbs: “Three things are too wondrous for me, and four I do not understand: the way of an eagle in the sky; the way of a snake upon a rock; the way of a ship in the heart of the sea; and the way of a man with a young woman.”
Conclusion
In sum, this is a highly puzzling judgment in my view. What is even more puzzling is the consensus around it among the three justices of differing stripes. Somehow it seems that the justices shot the arrow (decided not to intervene) and then recruited the arguments. Arguments also surfaced whose purpose was to allow LGBTQ individuals to shape their identities freely (Vogelman). Nowadays gender identity too is not a clear-cut issue. Would Vogelman say the same in the case of a woman who disguised herself as a man and married a woman? Perhaps we should also allow such a deceiver to shape her gender identity, and therefore the court should not intervene.
A policy of non-intervention by the law in matters of the soul does not seem reasonable to me; but even if one accepts it, it is unclear where the line is to be drawn. The courts do intervene not infrequently in matters of the soul, and the criteria offered here seem neither comprehensible nor well-defined—indeed, downright unfounded.
If one takes into account the characteristic fecklessness of the Chief Rabbinate—which did not annul the kiddushin ab initio—then the situation that arose boxed the court into a very specific corner. The court cannot, or does not want to, annul the kiddushin, and it remains only to treat the case as an ordinary dispute between spouses. The conclusion is that even in this dereliction we can see substantial contributory fault on the part of that fossilized, harmful, and unnecessary institution. Cato the Elder’s speech…
[1] In halakhic terms it is more precise to speak of annulment of kiddushin, but in civil law the relevant term is “marriage.”
Discussion
I did critique it, but not on your plane. What he means is that this is an issue that has become normative, and therefore it cannot be brought into court (someone who marries does so with that in mind). True, in extreme cases there would be room for it, but this is where the slippery-slope argument comes in.
Incidentally, in a place where money has become up for grabs by anyone who wants it, there is room for the argument that the court should not intervene. We also find in the Talmud that once murderers became numerous, they stopped adjudicating capital cases. From another angle, I once wrote that monetary law depends on social norms, and in the absence of norms there will be no property ownership over money. The same applies to personal status and couplehood.
It seems to me that heartfelt and colorful bouquets should be sent to Mr. Gideon Sa’ar—the wonderful and professional Minister of Justice of Israeli democracy, the beginning of the flowering of our redemption—and to the nice Bennett, Yoaz, Yair, and Abbas, all of whom have ensured that this progressive legal spirit will be immortalized in the legal legislature (on its own authority) of the “High Court Party,” for the legal and lawful certification of betrayal and lewdness within the congregation of the children of Israel, as described with such good taste and sound judgment by the rabbi who wrote the article
First, the betrayal did not come out of the court, nor will the court solve the problem. This is a social norm to which the court merely gives expression. Second, what does this have to do with Sa’ar? Do you want him to appoint Rabbi Kanievsky to the Supreme Court? There was a consensus here between conservatives (and religious people) and liberals. There was even a majority here for the religious-conservatives, and out came this calf. That is an action that refutes itself. Even if you appoint judges exactly as you want, the result will still be “liberal.”
Honorable Rabbi. I identify with your puzzlement regarding this ruling, particularly that it was unanimous among all three judges.
Even so, I wonder what would have happened had these judges ruled against that man. It seems that this would have set a precedent and opened the door to complete chaos among divorcing couples, with each side beginning to claim that even before the marriage the other side was weak in faith or attracted to members of the same sex to one degree or another, and other such things entrusted to the heart…
Another point, against your astonishment at such a ruling from conservative judges [perhaps also religious], I think the opposite: the more conservative the outlook, the more homosexuality is judged as a defect, and as a character trait that can be changed.
If so, why be surprised that the attitude toward it is not dichotomous/extreme, but rather as merely a religious weakness.
And certainly, if this were a married couple where one side discovered that the other was significantly less religious than he or she was, your astonishment would lessen, and presumably you would understand the court for not wanting to open the door to compensation throughout this whole area.
I do not see any concern about opening breaches. There are rules of evidence in the legal world, and people need to prove their claims. The fact that a woman or a man will make various claims without proving them does not worry me, because what is not proven is inadmissible.
If he had denied her claims and there were a dispute over the facts, then of course the burden of proof would be on her. But it does not appear there was any doubt about the facts; otherwise it would have been enough for the judges simply to say that the claims were not proven.
I do not think Solberg or Willner believe that homosexuality is something changeable or a weakness. To think that, one would have to be detached, not conservative.
I do think your view of homosexuality is very dichotomous. You too see as “detached” anyone who does not think that way.
Presumably the judges do not think that way. Homosexuality has a broad scale of continuum, and it is very hard to assess a person’s exact place on it throughout the whole course of his life until today.
Moreover, this depends on culture and personal morality. There are completely healthy people who are somewhere on the spectrum, and belonging to a certain sector will cause them to choose one side and invest in it, develop it, and “succeed” [and not through conversion therapies, heaven forbid] to one degree or another. By contrast, for other people this can cause them דווקא to break every boundary and do whatever they feel like, and consequently to drift toward places that contain more illicit stimulation, secrecy, and fun…
The very fact that they lived together for years and have three children, and that to this day the woman did not sense anything, also says something—and not something small.
‘A woman who disguised herself as a man’ is not an example relevant to the case at hand.
The judges compared this to infidelity, and there is something to that…
It is not enough merely to exempt the husband who deceived his wife from compensation—one should require the wife to pay her husband for having improved her bargain, and for giving her far more than she expected. Instead of a ‘religious zealot’ belonging to a primitive minority group—the woman got an enlightened husband, free in his opinions and liberated from archaic and degrading prejudices. Fortunate is she and fortunate her lot!
Regards, a rabbi from Mastodon, member of the High Court of Justice, and of the Council of the Four Lands in Kikar HaYarden
In that spirit, we once ruled that one who strikes his fellow must pay him for the bloodletting 🙂
Hello,
I wanted to ask: what is the source for the claim that a man’s infidelity is a breach of the legal contract between the spouses according to halakhah? Where is that implied in the ketubah? (The wife’s infidelity is clear, because she becomes forbidden to him.)
Every time, the stupidity and childishness of the Supreme Court surprises me. Simply a bunch of feeble-minded people. There is no remedy for this institution (like all state institutions today). As the rabbi says, its breaking is its purification. There is no point appointing conservative judges, because this whole field is populated by feeble-minded people. Therefore every conservative judge who enters the High Court ultimately takes on the shape of his surroundings (environmental influence), and each small part is nullified. They are not even aware of it. I actually think all state institutions are like this today, and one should stop enlisting in the IDF, for example, which today fights Jews more than it protects them (like the police), and instead establish local private militias, because no one else will protect us better than we ourselves will. Left-wing people do not care about the Jewish people but about their progressive religion, and right-wing people who enter those places change their tune for the sake of advancement / currying favor with their surroundings. Thus you hear a Sephardi police commissioner—what does he have to do with the nonsense of leftist equality—babbling that the riots were caused by a lack of equality (even before Abbas the Arabs got much more than they contributed; proof is that when there was talk of annexing the Arabs of the Triangle to the Palestinian Authority they strongly objected, because they would stop receiving National Insurance… supposedly because they feel “Israeli”…). I am in favor of not collecting taxes from them, and that they should pay for services themselves and not receive the right to vote for the Knesset and not receive National Insurance (to which nation do they belong?). Let them make social insurance for themselves. In general, it seems there is no remedy for the State of Israel (perhaps we should call it the State of Ishmael…)—rather, its breaking is its purification.
They are not conservative at all. Religious people have a strong urge to ingratiate themselves with secular leftists. This is something every Religious Zionist nurses with his mother’s milk, and in most cases is not even aware of it. This is expressed in the army, the university, and the workplace. Therefore somehow the influence is always from the secular to the religious and not vice versa (you do not hear about secular people becoming observant from spending time with religious people in the army, but usually the opposite). In general, the legal field attracts people of mediocre talent (those who are really talented go into the natural sciences or engineering) with an underdeveloped critical sense. After all, the rabbi’s main criticism here is that they do not understand that this is not an emotional matter but a contractual matter in every respect. And somehow, as is his wont, he blames the Chief Rabbinate… I have not seen that the High Court has any reluctance to try to educate rabbis when it thinks it should… and this happens every day (just the latest case with Rabbi Yosef Yitzhak). Marriage is a concept not tied specifically to kiddushin; it is a universal human concept, and the proof is that in all matters of division of property the courts have no problem taking authority away from the rabbinical courts. The rabbi’s hatred of the Rabbinate distorts his perception of reality (as in the case of the Arab riots, where in his great foolishness he also argued, like the idiotic police commissioner—there is no other word for it—that there is some connection between them and some sort of “lack of equality”) as usual.
I am not at all among the admirers of the Israeli legal system, and especially not of its crowning glory, the Supreme Court (which sees its role as a super-legislator and coercive educator). But on the merits of this matter, if one examines the ruling itself carefully (lgbtlaw.tau.ac.il/sites/default/files/field/judgment/file/בע״מ%205827%3A19%20-%20%20פלוני%20נ׳%20פלונית.pdf), I do not think it says exactly what is being claimed here in its name. According to the argument here, the facts are agreed upon by both sides (namely, that the husband presented himself as religious when he was actually a secular gay man), but the ruling explains that the groom denies this claim (while he does not deny “experiences,” he denies that he defined himself as gay), and the judges’ argument is (among other things) that entering into the recesses of a person’s soul—what exactly he thought or felt at the time of the marriage—is not the role of the legal system.
One can of course argue about that too. But from reading the ruling, I understand that if the husband had admitted that from the outset everything on his part was a false presentation and that he was not attracted to her at all, there is a substantial chance that the ruling would have been different.
There is an implied contract based on accepted norms and assumptions that accompany marriage. In the legal world too, oral contracts are treated as contracts in every respect. The spouses’ expectations are part of the marriage contract. This has nothing to do with the ketubah, which is the halakhic contract, and here I am dealing with the social contract.
As I said, I did not read the ruling. If that is indeed what is at issue, then the situation is completely different. But then there is no point in talking about how the law should not enter into the recesses of a person’s soul and psychological questions. One can simply argue that the plaintiff did not prove her claim. That is not what the judges wrote in the passages I quoted.
If he had experiences, that already shows some kind of inclination, and that is something he had to disclose to his future spouse. Fine, if he only had dreams and fantasies. But experiences already show something he should have been suspicious about. And he should have reported it. So that she would know there is a significant risk that he would turn gay.
Would a rabbinical court accept a wife’s damages claim against her husband for infidelity on the grounds of breach of contract?
I assume not, for two reasons: 1. They usually would not see this as a breach of contract (because they do not recognize the contract I am talking about). 2. In halakhah there is no compensation for such breaches.
I attached the link above; I am attaching it again here at the end. As I understand it, their point is that they do not enter this plane at all (of examining her claims against his claims as with any factual issue that arises in court), because that plane is “non-justiciable.” Still, if there had not been a factual dispute between them, it would have affected the matter.
And in this case—would they recognize a claim of false representation?
They are simply not intelligent people. The concept of the secular legal world does not strive for truth but for adherence to laws and boundaries. Therefore intelligent people go into science and computers and keep away from this world of nonsense. In religious society, by contrast, there is room for truth and reason within the legal world. Therefore even ordinary Torah scholars with straight reasoning are on a higher level. I really think that I, insignificant as I am, am far wiser and straighter than the entire Supreme Court, something I certainly could not say, for example, about the world of science and high-tech.
It is not only that they are not intelligent. They are truly fools and on the verge of wickedness. They are idol worshippers of their laws and boundaries, without a drop of common sense. And from that idolatry they also come to bloodshed. One must rise up against the state and its institutions before they bring about our physical destruction (which is happening now in the Negev) and our spiritual destruction. There needs to be an actual rebellion.
I am only clarifying that this is not about a violent rebellion, but only non-cooperation with state institutions, such as not serving in the IDF (let them draft the Arabs—there has to be equality, no?), and taking responsibility for our fate into our own hands.
Thank you for the important clarification!
What do you mean, non-justiciable? Either he is straight or he is not. And if he is not, he should have disclosed it to her. At most they could have said it was not proven that he was not straight. The main criticism of the courts’ stupidity is that they do not understand that this is a contractual matter and think it is a matter of feelings. But marriage is a contract. Straightness is material to that contract, and that is what they do not understand—not the factual issue in this specific case.
And to explain the extent of the wickedness here, I will expand and say that they know very well not to stick to laws when those laws conflict with their progressive worldview (part of which is adherence to empty laws and rules, but also to empty equality and all sorts of other emptiness), and to interpret laws creatively and perversely so that they fit their worldview. Or somehow always against the right-wing public. Or the use of the offense of breach of trust to remove from power anyone whose face they do not like. Or simply anything that gives them power, like the absurd aggregation thesis (the latest idiotic innovation from the workshops of the prosecution and the High Court, regarding breach of trust). That is, in practice they are wicked in the end. Folly eventually leads to wickedness.
This reminded me of this
https://www.youtube.com/watch?v=DimoA2bhCNs
Back in the day I listened to this on loop
It really is unbelievable—the lying and wickedness of these people. Idolatry that turns into bloodshed… One can easily see how Judge Matza becomes emotional, confused, and stuck in the face of the courts’ hypocrisy and his own. He keeps blurting out: “political program,” “human rights.” A feeble-minded man lacking self-awareness, and in the end also wicked. It would have been better if he had simply said openly that he hates the right, and that’s it. That I would respect. Do you realize what human trash the Israeli left is (and really the global left in general)? And the right-wing people who flatter them are even worse than they are, in the sense of “Like a muddied spring and a corrupted fountain is a righteous man who falters before the wicked.”
Why are you complaining about the court? She probably would not have received the remedy she sought in any rabbinical court either. And perhaps for similar reasons. The inflammatory “them and us” responses are a pity.
We are complaining about the judges’ lack of understanding (and the wickedness that follows from it). How do you know that a rabbinical court would not have awarded damages?
A rabbinical court would not deny the halakhah (this is a case of mistaken transaction). Perhaps it would come under pressure because of annulment of kiddushin (which really does belong here) and would pressure for a get, but it certainly would obligate the defendant (assuming the facts are true and proven) to pay damages if it had the power. One need not sing Rabbi Michi’s tune in every case.
In a rabbinical court there can first of all be people who are insufficiently worthy and would not have been appointed to such a position were it not for connections and the like; and at times even wise and worthy people are afraid of changes and the like—but I was speaking about neither of those. (I do not think she would not have received relief in rabbinical courts, but that is just a guess.) In any event, my argument was about their reasoning: every now and then when I encounter their way of thinking, I am amazed that people consider them wise. I once heard a lecture by a certain judge on Maimonides, and I was really struck by how superficial his analysis was. I was speaking essentially about the judges’ mode of thought and analysis, not about the conclusion. That is not inflammatory speech but a reflection of reality as I see it (and relative to the comments of the one above me, it is even charitable judgment).
With God’s help, 5 Tevet 5782
Regarding a husband who betrays his wife and is a “frequenter of prostitutes,” the book HaAgudah wrote that he is compelled to divorce her, and the Rema likewise ruled (Even HaEzer sec. 154). Arukh HaShulchan explained: “And although for other transgressions, when they do not affect her, we do not compel him to divorce, nevertheless with one who frequents prostitutes we do compel… for it certainly affects her conjugal rights, since one who frequents prostitutes despises what is permitted and stolen waters are sweet to him, and she is certainly repulsive to him, and perhaps there is danger in the matter as well. And it goes without saying according to Maimonides, who says that in a case of ‘he is repulsive to me’ we compel him to divorce, but even according to those who disagree there—in such a case they agree. For the Talmud explicitly states that in the case of one who rebels against conjugal relations we compel him, and all the more so with one who frequents prostitutes, which is worse…”
Likewise, the judges of the Rabbinical Court in Ashkelon write (in their ruling on “Obligating a Husband Who Betrayed His Wife to Give a Get,” on the PsakDin website) that “the accepted ruling in the rabbinical courts is that one who betrays his wife should be obligated to give a get, both משום ‘frequenter of prostitutes’ and משום the more general obligation of ‘he is repulsive to me’ with a substantiated claim.”
Regarding damages: in Torah law there is no compensation for emotional distress over breach of contract. In marriage there is the sanction of “he must divorce and give the ketubah” when he is the one causing the separation, and one who betrays his wife must pay her the ketubah and all its attendant obligations even if the wife initiates the divorce, because he is to blame for the “breach of contract.”
In the civil courts, damages are awarded by virtue of dina de-malkhuta also for emotional harms caused by breach of contract, and excluding betrayal and deception from such damages is an explicit statement that in their eyes betrayal and deception are not considered a wrong, as they held in the infamous “adulterous wife ruling,” that the right of a spouse to betray is a sacred right.
Regards, Yaron Fishel Ordner
In light of—or rather, given the “darkness” of—the High Court’s position, which sees the right to betray as a ‘sacred’ right that no contract can nullify, I would not be surprised if one day the betrayer files a criminal complaint against his wife for criticizing his behavior, on grounds of “sexual harassment,” one of whose clauses is ‘making a remark about a person’s sexual conduct’ 🙂
In disgust, Yifa”or
In a “Ruling on Breach of Contract” by Justice Noam Solberg (on the Daat website, sections 7–25), the judge discusses the moral, social, and legal sanctions imposed on one who retracts even before the contractual acquisition has been completed: he is subjected to the curse of “He who exacted payment,” and some say the curse is publicly proclaimed against him; and the “third party” who causes the cancellation of the contract is not only called “wicked,” but can even be legally prevented from signing the contract.
Solberg notes that today the moral and social sanctions are no longer as effective as they once were, and therefore Israeli law instituted monetary compensation for canceling a contract even when the acquisition had not yet been completed. Accordingly, he ordered a woman selling an apartment who backed out at the last moment to pay compensation of NIS 10,300 + VAT for the attorney’s and engineer’s fees that had been paid in vain. But for the “emotional distress, trouble, and disappointment,” Solberg awarded compensation four times higher—NIS 60,000!
If that is what emotional distress over canceling the sale of an apartment is worth—how much are the disappointment and emotional distress worth for someone who was deceived and therefore forced to live with a person whose way of life is completely contrary to her wishes and expectations? Evidently, things seen from the Magistrate’s Court cannot be seen from the Supreme Court 🙂
In puzzlement, Yifa”or
Bottom line—even in court and even in rabbinical court, infidelity does not create a tort cause of action. That does not mean they regard it as a “sacred right.”
To Shoel—greetings,
Long live the vast difference. In Torah law, betrayal of one’s spouse is a grave wrong that creates “he is repulsive to me” at the highest level, and therefore he is compelled to divorce her and also to give the ketubah and his other obligations, מתוך the understanding that “a person cannot live with a snake in one basket,” and therefore a woman cannot be required to live with one who “frequents prostitutes.” And as is known, “compel” means coercion by lashes until he divorces or until she yields, or at the very least economic harassment and social shaming.
By contrast, the High Court—which will award enormous sums for “emotional distress, inconvenience, and disappointment” in backing out of an apartment sale—refrains from doing so in marital fraud, whose meaning is the destruction of the woman’s life. And their reason is well explained in the “adulterous wife High Court ruling,” in which they explicitly held that the right to sexual freedom is among the fundamental rights of a person that the marriage contract has no power to nullify!
Regards, Yifa”or
It seems to me that the sanctions you described apply in an extreme, ongoing situation. Even religious law shows some leniency toward one-time infidelity or a “slip” on the part of the man. (Not with a married woman.) Are you sure they always obligated the ketubah and compelled a get in such a situation?
And what about actual damages (not emotional or distress damages)—the wedding expenses, for example? What rabbinical court would reimburse a woman’s expenses based on “he is repulsive to me” because of one who frequents prostitutes, or false representation as in this case? By contrast, in damage caused by false representation in a business contract, a rabbinical monetary court can recognize it.
Listen, this is simply huge.
With God’s help, 6 Tevet 5782
According to the rationale of “one who frequents prostitutes,” the Hakham Tzvi indeed distinguished between fixed behavior and a one-time lapse. But according to the rationale of “he is repulsive to me with a substantiated claim,” even one-time infidelity creates repulsion. See the ruling of the Rabbinical Court in Ashkelon to which I referred, for that is the accepted practice in the rabbinical courts.
Regards, Yifa”or
On the severity of betraying the wife of one’s youth, Malachi writes in harsh terms: “And this again you do: you cover the altar of the Lord with tears, with weeping and sighing, so that He no longer turns to the offering or accepts it with favor from your hand… because the Lord has been witness between you and the wife of your youth, against whom you have dealt treacherously, though she is your companion and the wife of your covenant… Therefore take heed to your spirit, and let none deal treacherously against the wife of his youth. For I hate divorce, says the Lord God of Israel, and him who covers his garment with violence, says the Lord of Hosts. Therefore take heed to your spirit, that you deal not treacherously.”
Accordingly, the Sephardim practiced administering a severe oath to the groom that he would not marry another woman without his wife’s consent, and the Ashkenazim decreed a ban even if she consented. All the more so when it comes to illicit intercourse. When the rabbinical courts had effective power, they would punish the husband severely, both for violating the ban or the oath and for illicit intercourse. Today, when the rabbinical courts lack the power to punish him, they nonetheless obligate him to divorce her and give the ketubah, whether on the basis of “one who frequents prostitutes” or of “he is repulsive to me with a substantiated claim.”
Despite the vast differences in attitude toward the sanctity of the bond, its value, and its meaning, still both the rabbinical court and the civil court would not view the marriage relationship as a regular contract whose breach creates a tort cause of action. On this point, perhaps the thinking is similar.
When the relationship is dissolved, in both systems there is a division of property or payment of the ketubah, etc., but apparently they would not award damages for infidelity, neither in court nor in any rabbinical court.
Therefore it is not certain that the comparison between the two rulings in the comment below is relevant either.
First of all, she says that she did not marry with that in mind, and we are as witnesses that indeed this is so. What are we supposed to do for her?
You brought as an excuse a Gemara that itself requires explanation. If everyone murders, does that make it better, so they stop judging? It would seem rather like the other Gemara that said that once they stoned someone who rode a horse on Shabbat even though it was not really required, because people had begun to treat Shabbat lightly and this had to be stopped. When property is up for grabs by anyone, one might perhaps say that there is no longer ownership and therefore they will not judge property cases; but as long as there is ownership, they must judge!
And what is the complaint against the people of Sodom* if anyone entering Sodom did so in order to comply with its laws?
*Sodom as described in the Midrash, with its bizarre laws; from the Bible itself one cannot really learn anything, but the approach of Hazal can be presented.
https://www.ynet.co.il/judaism/article/b1hojpdj9
The rabbinical court accepted your position, and also recently annulled kiddushin retroactively because of sexual inclinations
I was a bit surprised that you did not critique Justice Amit’s remark quoted by Justice Willner:
“Given that infidelity in married life is a common phenomenon, opening the door to lawsuits for adultery and betrayal may flood the legal system with claims and juridify married life.”
Now let us think of another case in which it turns out that Bedouins broke into someone’s house
“Given that breaking in and theft are common phenomena, opening the door to lawsuits for breaking in and theft may flood the legal system with claims and juridify property ownership.
Or in other words, the judge does not want lawsuits on a certain subject to reach the court, without explaining why that subject is not the court’s business (and if the subject does not belong in court, then what is the point of the slippery-slope argument?)