Annulment of Kiddushin and Women Denied a Get – The Halakhic Layer (Column 148)

It seems to me that one need not say that the presumption of tav le-meitav tan du has been nullified, but only that the expected benefit women foresee from it has declined, and therefore its weight in the equation מול ada‘ata de-hachi has decreased. That is, if in the time of the Gemara this was enough to accept the possibility of a leprous yavam, nowadays this is not at all clear.

Of course. That is exactly what I wrote. Where did you see otherwise?

Regarding the case in which the rabbi annulled the kiddushin (the husband who fled abroad).
Is there not an implicit prior assumption here that a woman marries for the sake of a “relationship,” and therefore in the case at hand, where there is 0 relationship—she married on that basis?
Perhaps that assumption is mistaken?
We see with our own eyes women who marry not in order to attain a relationship but for other reasons (mainly financial). Why assume with certainty that this was not the case there?

A few comments:

1. It seems to me that the proof from a yevamah who fell before a leprous man is deficient, because after all this is only the Gemara’s initial assumption. It is not at all clear that, were it not for the presumption of “tav le-meitav,” the conclusion would have been that the kiddushin are void.

2. In my opinion, the fact that there is no example in the Gemara of annulling kiddushin on the claim of ada‘ata de-hachi strengthens the claim (against several Rishonim and Acharonim) that this ground is not valid in kiddushin at all.

3. I am not sure that the case of a sale made with intent to immigrate to Eretz Yisrael proves that in an extreme situation the sale is void even if there was no transaction made in error. Perhaps one can interpret the sugya there as saying that the sale is void because there is an implicit condition here: it is understood from the context that the man sold his property only in order to go up to Eretz Yisrael; he merely “forgot” to stipulate explicitly that the sale would not take effect without that.

4. If indeed the basis of annulling the sale is an implicit condition, it seems very understandable why in kiddushin one cannot invoke the ground of ada‘ata de-hachi. For a condition in kiddushin is less common and far less desirable than in a business sale, and it is difficult to assume that there was a situation here of an implicit condition.

That is not plausible. In that specific case it was clear that, from her side, the marriage was like any marriage in the world: to obtain a relationship. Incidentally, financial reasons are part of the relationship (a relationship is not only sexual life and children), and in the above case she of course did not receive that aspect of the relationship either.

1. It is completely clear. True, in very pressing situations, when one learns something from the Gemara’s initial assumption, some of the Rishonim write that they could have answered otherwise; but it is an everyday matter that if the answer does not reject the initial assumption, one may derive halakhah from it. Here the Gemara obviously takes for granted that this is relevant to kiddushin just as to any other context (that itself is the Gemara’s question), and the answer accepts this, only attributing it to the presumption. So it is obvious as an egg that this is the Gemara’s view.
2. There are also very few examples of annulling a sale on this claim, although it is much more common. Quite a few laws are learned from one place in the Gemara, and the small number of places proves nothing at all (aside from the rarity of the case, certainly in their time, when the presumption of tav le-meitav was extreme), certainly not against a conclusion that emerges from an explicit Gemara (see section 1).
3. Of course it is an implicit condition. An implicit condition is the halakhic mechanism underlying “ada‘ata de-hachi” (I noted in the body of my remarks that regarding a transaction made in error, the Acharonim disagree whether one needs to invoke the mechanism of condition, or whether this is a kind of reservation; see my ruling on this).
4. It is of no interest whatsoever whether it is common or desirable. The question is whether it is valid. As I showed, there is no principled difference between kiddushin and a commercial transaction, except for the presumption of tav le-meitav (and the presumption that a person does not make his intercourse licentious. See below).
You can, however, apparently raise a difficulty from the fact that there is no condition in marriage, but that itself is seen in the Gemara in Bava Kamma cited above—that here this does not interfere, and there is a condition in marriage. The reason is that even the rule that there is no condition in marriage is based on the assessment that a person does not make his intercourse licentious, and where there are considerations that override this and nevertheless he has firm intent to stipulate and validate the condition even after marriage, certainly the condition also takes effect after marriage. Incidentally, in my humble opinion this is the reason why today there is no obstacle to making a condition in marriage (this is the second affair publicized concerning me with respect to private conditional kiddushin that I conducted).

In response to the rabbi’s reply:

In my opinion there are women who marry for financial reasons that explicitly are not part of the relationship.
For example—a young woman who has her eyes fixed on the wealth of a rich old man and is willing to sacrifice and suffer the relationship with him because of the financial bonus waiting for her in not too many years…
Another example—a young Ukrainian bride who is willing to suffer likewise, provided that through the marriage she will attain the longed-for Israeli citizenship and succeed in escaping a life of poverty in Ukraine.
It is clear to me that in the case under discussion this was not the story—but who can guarantee to us that there were not hidden considerations known only to the woman, making the marriage worthwhile from her side, even though today she says otherwise?
In other words—why can we not rule out the possibility that at the time of the kiddushin her intention was to agree to the kiddushin (for purely financial or other reasons) even if in practice the return would be 0 relationship?
The fact that she now claims otherwise is no proof that this was her intent at the time of the kiddushin.

There are several problems here, in my humble opinion:
1. “This consideration can lead to the conclusion that this transaction is void even if the future event did not occur, since the calculation at the time the transaction was made already comes out not worthwhile. But there is legal logic in determining that the transaction is annulled only if the future event occurred. Otherwise there is no reason to annul the transaction when both sides want it.” — If so, then if one of the sides for some reason is not interested, the kiddushin are void even if the future event never occurred at all. That is inconceivable.
2. Empirically—it seems to me one could easily show from the responsa literature of the last two hundred years that such extreme cases were unacceptable to women, even two hundred years ago, and this is not a change in the attitude of women of the last generation; and nevertheless the decisors did not rule that the marriages were void.

(As for the sugya itself, it may be that the direction is the opposite: the sugya uses the yavam because when the husband himself became leprous, the marriage is not void even without the reasoning of tav le-meitav. For kiddushin are a package deal that includes all future good and bad possibilities—whether he becomes leprous, goes insane, or runs away. Only a yavam, who is something like an “inheritance” of a bond, that is, something external and not part of the kiddushin, can give rise to “ada‘ata de-hachi.” This would also clarify the point you raised in an earlier response: why a priest’s wife who was raped while betrothed becomes forbidden, even though both sides received zero return, and neither side wanted it, and they did not make the kiddushin on this basis. But it is true that from some of the Rishonim it sounds as though even regarding the husband himself there is, in principle, the reasoning of ada‘ata de-hachi.)

No one can guarantee anything. By the same token, no one can guarantee that the man who sold his property did not do so simply because he felt like it and not in order to go up to the Land of Israel. We are dealing with human beings, and what we have is our best assessment regarding the reasonable person. When we have no other concrete information, halakhah is determined according to the conduct of the reasonable person, not according to far-fetched possibilities that might perhaps exist.
As I told you, in the case at hand she did not receive even the financial aspects. So are you suggesting we think she married him in order that he flee abroad immediately, because she enjoys husbands who run away from her?
And incidentally, someone who marries her husband for the money—that is her relationship. As I wrote, money is part of the complex of the relationship. And if she is willing to tolerate the sexual life in order to receive the money, that too is a kind of relationship. No one has determined what dosage of sexual life and/or money is required for a relationship. Each couple will decide for itself.

The comparison of kiddushin to a commercial transaction is mistaken. Annulment of a commercial transaction is a “monetary matter,” whereas annulling kiddushin and permitting a married woman to the world at large is a “matter of forbidden relations.”

Any reasoning about “ada‘ata de-hachi” has not gone beyond speculation. It may be that if the speculation convinces the judge, he can rule to annul a monetary transaction, but in order to permit a married woman to the world at large, a higher degree of certainty is required. Therefore, although in principle the law of “ada‘ata de-hachi” also applies to kiddushin, in practice it is understandable why the decisors throughout the generations recoiled from using it because of the difficulty of proving “ada‘ata de-hachi” at the level of certainty required for a matter of forbidden relations and for permitting a married woman to the world at large.

According to this, the Gemara brings the reasoning of “tav le-meitav tan du” to illustrate that even a weak argument suffices to reject the uprooting of kiddushin on the basis of “ada‘ata de-hachi,” even when the reasoning of “ada‘ata de-hachi” seems quite persuasive in the case where the yavam is leprous. Even so, this slight reasoning suffices to thwart the possibility of exempting a yevamah from the bond to the yavam, and all the more so one must be doubly cautious about using “ada‘ata de-hachi” to annul kiddushin; and therefore, as stated, the decisors throughout the generations recoiled from using this halakhic tool.

From this it follows that the paradox is not a paradox, and the rest—go and learn.

I do not really know what to do with declarations (so what if this is a monetary matter and that is a matter of forbidden relations? And in general, as is known, we derive forbidden relations from money by verbal analogy of “matter” “matter”). I brought facts and proofs, and also referred to sources that make use of this.
If you prefer declarations—health to you.
As for why the decisors recoiled, that is a question in psychology, not in halakhah. I have neither hand nor foot in such considerations, and they do not interest me either.

There is a tremendous difference between a monetary matter and a matter of forbidden relations. For example, in a matter of forbidden relations there is nothing with fewer than two witnesses, but in a monetary matter one witness obligates an oath. That is, the evidentiary strength required in a matter of forbidden relations is greater than the evidentiary strength required in a monetary matter. I find it hard to believe that someone who is not afraid to serve as a judge on a court annulling kiddushin does not know this; the feigned innocence is surprising and even infuriating, and certainly out of place.

(True, we rely on one witness and even on a gentile to permit an agunah, but that is because “the Rabbis were lenient in her case,” since “she examines carefully before marrying,” and because “by being strict with her in the end, you may be lenient with her in the beginning,” etc. None of this eliminates the halakhic difference between a monetary matter and a matter of forbidden relations, and, as stated, the feigned innocence is out of place.)

As for psychology—fear of issuing halakhic rulings is itself Torah and requires study, and certainly not disdain and the haughty declaration that “such considerations do not interest me.” Your emphatic assertion that the recoil of the decisors is a question in psychology constitutes haughty disparagement of all the sages of Israel throughout the generations, as though they were driven by neurotic phobias rather than serious and deep halakhic concerns. Come now!

In my response I tried to explain what the halakhic consideration might be (note well: a halakhic consideration, not a psychological phobia) that caused the decisors throughout the generations to recoil from annulling kiddushin on the basis of the reasoning of “ada‘ata de-hachi.” The explanation I proposed is that the decisors were uncertain about the level of proof required to establish “ada‘ata de-hachi” for annulling kiddushin, since this is a matter of forbidden relations, which requires stronger proof than a monetary matter. Indeed, the reasoning of “ada‘ata de-hachi” itself is nothing but psychological speculation that cannot be objectively verified.

As with all explanations, I may be right and I may be wrong. But there can be no doubt (for one who fears Heaven) that the recoil of the decisors throughout the generations does not stem from phobias and anxieties but from a genuine halakhic concern, even if not the one I proposed, and that itself is a weighty halakhic consideration. So long as you do not provide a convincing explanation for the avoidance by the decisors over hundreds and thousands of years of annulling kiddushin on the basis of “ada‘ata de-hachi,” and dismiss the matter as “psychology,” your pilpul is at most a “vort” for the third Sabbath meal, but lacking halakhic value (quite apart from the condescension, etc.).

If we were to judge kiddushin like vows, which can be uprooted by a court through an opening of “I did not vow on this basis,” then we could uproot kiddushin also by regret: the man or woman would say, “Had I known in advance that I would regret it, I would not have vowed.” And likewise let us say: “Had I known that I would regret it, I would not have become betrothed,” and “I was not betrothed on this basis.” And that would be the end of kiddushin…

With blessings, Sh.Z. Lewinger

Incidentally, even in vows one does not open with something newly arisen…

Greetings to Michael!

As I recall, when I studied this sugya, the conclusion I reached was that we must discuss it and view it as though we are asking the litigant at the time the transaction/kiddushin is made. That is, a person buying a house—if we were to ask him, “Do you realize that tomorrow the house may be struck by lightning; are you making the purchase nonetheless?” it is clear he would say yes, since if he says no, he understands that the seller will say bye-bye. If so, we cannot say that there is an obvious presumption that he makes the purchase on condition that there will not be lightning, for if the seller explicitly asked him to take that risk, he would be willing. Clearly, then, if this issue were raised seriously in conversation at the time of sale, the agreement would be that the seller does not accept responsibility for it.

That means that any possible risk which, if raised at the time of sale, it is clear to us that the agreement between them would be to make the sale despite the risk—there is no claim here of ada‘ata de-hachi.

From here, with respect to a woman coming to marry, if one were to say to her: “Are you willing to marry even on the chance that your husband will flee from you after ten years and chain you for twenty years?” it is clear she would say she is not willing, and on that basis she does not make the kiddushin. Nor would the husband withdraw from the kiddushin if she made this condition at the time of kiddushin. And even if we say that if the husband truly insisted and did not agree to the condition, the situation is that the woman would agree to such kiddushin because she is willing to take the risk, still it is clear to us that the husband would not insist on this condition, because he does not want to appear as someone planning this grim scenario. And now it is clear that the woman desires this condition, and in this we say ada‘ata de-hachi.
And this is not specifically because the wrong here is only one-sided; even if, hypothetically, the law were that the woman could chain the husband, it is clear that both of them would be willing at the time of kiddushin to a mutual condition that if either side chains the other, the kiddushin would not take effect.

The resulting conclusion: any condition and risk such that, had we raised it at the time of kiddushin, it seems to us that both sides would have agreed to this condition—I do not see any reason not to say in such a case ada‘ata de-hachi.

If I am not mistaken, this is also your conclusion, though in different wording.
With blessings

Sh.Z. Lewinger
Kiddushin is not a vow and does not lapse through regret, just as an acquisition does not lapse through regret. That is ABC, more obvious than an egg in kutach.

To Moshe
What do you mean by “we must discuss it and see it as though we are asking the litigant at the time the transaction/kiddushin is made”?
If you mean that we ask what would happen if, at the time of kiddushin/transaction, we reminded the litigant: “You know this-and-that might happen, right?”
Then you are right about the lightning, but regarding kiddushin—every woman knows there is such a possibility, and nevertheless agrees to become betrothed.
If you mean that we ask what would happen if at the time of the transaction/kiddushin we told the litigant, “This-and-that will happen,” then you are right regarding the woman—she would not agree to marry, but regarding the lightning too, the buyer would refuse!

And in the case at hand—
after all, every woman who becomes betrothed becomes betrothed according to the law of Moses and Israel, and knows that kiddushin is dissolved only by a valid halakhic get, or in situations of extreme concealment of information because of a “transaction in error,” or in cases where the witnesses were found invalid, in accordance with existing halakhah. Perhaps if at the time of the kiddushin they were to say “according to the law of Michael and Daniel” it would help 🙂

With blessings, Sh.Z. Lewinger

The “law of Moses and Israel” has a complete solution for the case in question, where the court ruled that “we coerce him until his soul departs,” except that out of excessive modernity and liberalism they pity the recalcitrant husband and make the woman miserable, and then come complaining against halakhah….

First question—
The words of Resh Lakish that “it is better to dwell as two than to dwell as a widow” speak of widows, not of single women.
That is, on the plain sense of his words, he is speaking about a consideration at the time of levirate marriage (and is essentially claiming that the woman wants yibbum even with a leprous man), not about a consideration at the time of kiddushin (that she is willing to take the risk that she will need yibbum and the yavam will be leprous).
Why?

Second question—
Something in the probabilistic reasoning is not working here.
If the probability of a lightning strike on the cow is so tiny (to the point that I do not take it into account when buying a cow), then Rabbi Zalman Nechemiah Goldberg’s words are not correct—the price of the cow with insurance against lightning would not soar astronomically, simply because it is a terribly rare event.
This is not an anecdote but the core of the discussion—
If we are speaking about judgment in relation to the expected benefit from the transaction at the time the transaction is made, then it is very hard to say that the tiny term in the equation (the probability that the husband will be violent or a get-refuser) is what changes the assessment of the transaction.

The only solution I see is if we say that it is not a tiny term, because although the probability of a violent/recalcitrant husband is low, the loss from that is so high that it makes their product significant again.
That is, the argument of ada‘ata de-hachi does not look at probability and profit/loss as a product, but separates them.
If the probability of getting a stingy husband is 0.5 and the suffering from it is 1,
while the probability of getting a recalcitrant/violent husband is 0.001 (God forbid) and the suffering from it is 500,
then although in both cases the expectation is a loss of 0.5,
only with respect to the second case is it relevant to say “ada‘ata de-hachi,” because the probability is so low that it was not taken into account.

Final note—
With the popularity of the struggle against get-refusers (and the helplessness of the rabbinate and the rabbinical courts against them), it seems that just as it is reasonable to speak of a change in the presumption of “tav le-meitav,” so too it is reasonable to speak of “ada‘ata de-hachi.” Women are aware of the various risks in marriage and therefore factor everything in when they consent to become betrothed.

I assume you will understand if I allow myself to continue “being condescending” and not address irrelevant arguments based on baseless declarations and quotations which, despite their forcefulness, are beside the point. All the best.

A woman too cannot say, “Had I known in advance that I would want a divorce, I would not have married.” It seems to me that you did not understand the definition of “ada‘ata de-hachi” (I explained that it is a probabilistic calculation, not foreseeing the future). Incidentally, would you annul kiddushin by means of an opening?
Beyond that, you ignore the fact that the Gemara and the decisors recognize the mechanism of annulment through ada‘ata de-hachi, and you make arguments as though this discussion were open or the idea were being raised here for the first time. Too bad the Gemara in Bava Kamma 110 did not know your grandmother, otherwise it would have answered the difficulty with your reasoning without needing the presumption of tav le-meitav.

Indeed, that is also my conclusion. But one should take into account that if we were to ask the woman, she could say that she is counting on this not happening. It is not entirely clear that this is equivalent to a realistic probabilistic calculation. But that is a different discussion.

A. An interesting idea, but apparently not correct. See Rashi there, who explains that the issue is her willingness to become betrothed to the first man, not to perform yibbum with the second. The presumption of tav le-meitav appears also in contexts unrelated to yibbum (see, for example, Kiddushin 7a and parallels). “Armalu” means alone—both a widow and an unmarried woman.
B. I think you are falling here into Pascal’s wager fallacy. The criterion of expectation (average) does not work in a single case. If you had to insure an expensive car against total loss, how much would you ask? Not the chance of total loss multiplied by the damage. That is a calculation only an insurance company can make, because it has many insured vehicles. You would take much more (very close to the worst case).
C. By the same token, once you activate ada‘ata de-hachi, women will consent accordingly. Such a consideration can lock in any decision you make.

1. Shouldn’t the discussion begin with the rule that unspoken thoughts are not legally significant?
That is because a person is not trusted to claim that he imposed a condition, or that the consent to the transaction we need is acts of consent rather than intention in the heart.
After that one must say that thoughts in his heart and in the heart of every person need not be stated.
From here it follows that we need a very high degree of certainty that the seller (or the woman becoming betrothed) intended the condition—certainty so great that there is no need to state the condition.
2. I agree with Moshe that the main question is whether we are certain that if they had explicitly discussed the condition (that the man not beat her), they would have agreed to it, or whether the woman would not have consented. From here one can explain that anything which is the husband’s fault, it is reasonable that they would have agreed to the condition or the woman would have refused.
Certainly everyone would want to impose conditions for his own benefit, but the question is what happens if the other side refuses the condition. And again, we need high certainty that she would not have been willing to give up the condition.
I would not tie this to expected benefit; not everyone makes expectation calculations.
In the case of one going up to Eretz Yisrael, it may be that the buyer’s loss from annulling the sale is small, and therefore he would agree to this condition. It is not enough to say that the seller’s loss is large, since if he must sell because he is traveling, he cannot wait until the last minute, and he will consent even without a condition if there is no other option.
3. If one can impose conditions, why not insert the conditions explicitly into the formula of kiddushin and thus solve the whole problem without entering into uncertainties?

3. That brings you into the question of conditions in marriage. But as stated, for grounds of ada‘ata de-hachi in any case we are not concerned about that. Beyond that, you cannot think of everything that may happen in the future and insert it as an explicit condition.

The line of thought the rabbi presents here makes it hard for me to understand the law that a gambler is considered like a thief.
After all, he agrees to the conditions of the contract, which include the chances (which certainly exist) that he will lose his money. If so, why is he considered a thief and disqualified from testimony?

In the previous article you wrote that apparently, in the case at hand, it is impossible to annul the kiddushin because of ada‘ata de-hachi.
Why?
Marriage to a man who is unwilling to divorce even after 20 years is not something reasonable, and the price is very high.
Seemingly this case meets all the conditions.

First, a gambler is not really a thief. This is the sugya of asmachta lo kanya. The accepted explanation is that this is a situation in which a person does not truly weigh the possibilities. There are many other explanations there, and this is not the place. But on the contrary, from there one sees what I wrote here: when a person does not weigh things, his consent has no meaning.

I did not understand the question. Every case has its own costs. There are situations where one can and situations where one cannot. My claim is that even according to the conservative approach that hesitates to activate the mechanism of ada‘ata de-hachi, one should agree in the case where the husband flees on the wedding day.

Thank you very much for the important and fascinating article; it raises many points for thought.

With your permission, I will comment for now on just one point:

You wrote that get-refusal cannot be grounds for “ada‘ata de-hachi,” because this is a power given to the husband by the Torah, so “she understood and accepted it.” If so, two questions:
First question: according to this explanation, it would follow that in the reverse case, where the woman is the recalcitrant one (and there are quite a few such cases), we could immediately use “ada‘ata de-hachi” to annul the kiddushin merely because of the refusal itself, since by Torah law he can divorce her against her will? Or would we say that this right was taken from him by Rabbeinu Gershom, and therefore today he cannot use “ada‘ata de-hachi”?

Second question: true, the Torah granted the husband the decision whether to divorce or not, but the Torah also determines when he is obligated to divorce—say, in a case where the court rules that he behaves in a way that does not annul the kiddushin but is sufficiently severe to obligate divorce, and he becomes a get-refuser. How can we say that it is impossible to annul the kiddushin because he has a right to refuse? In this specific case the Torah (the court) determined that he must divorce!

It seems more logical to me that in a case where one side (man or woman) is obligated by court order to divorce and they evade this in an extreme way, then this is precisely something to which the other side did not consent. He or she understood מראש that perhaps there would be friction resolved in an agreed institution—court or beit din—but not that there would be friction that the other side would refuse to resolve in any framework whatsoever.

Is my view logical? Does it fit the halakhic literature?

Greetings.
When a woman refuses, the husband can marry another woman in addition to her (with permission of one hundred rabbis), and therefore this is a weaker ground. I also wrote about the strength of the ground as a basis for annulling kiddushin. Therefore from the husband’s side there is less likelihood of annulling kiddushin, since he can in principle divorce against her will, and even after Rabbeinu Gershom he can marry another woman in addition to her.

I myself made your second point. In my humble opinion, the fact that he is committing a transgression does not change anything here. The proof is that the Torah does not uproot the kiddushin even if he refuses a court order to divorce; that is, it wants the reins to remain in his hands even if he is a transgressor.
A far-fetched analogy to this matter is the view of the Kli Chemdah at the end of Parashat Balak regarding Zimri—that he is permitted to kill Pinchas under the law of a pursuer, even though he could have stopped sinning and then Pinchas would not have killed him, and thus one could, as it were, have saved him by injuring one of his limbs. And he answers that Zimri has the right to sin, and Pinchas cannot demand of him that he stop sinning; therefore if Pinchas threatens to kill him, Zimri may turn against him and kill him under the law of a pursuer.

I know of no decisor who allows annulling kiddushin because of get-refusal, for otherwise you would have abolished the entire law of coercing a get from halakhah (the claim of Rabbi Yosef Colon, which in this case is justified).

With God’s help, 29 Sivan 5778

Indeed, the subject of “ada‘ata de-hachi” was already raised by Maharam of Rothenburg regarding a yevamah who fell before an apostate, and he permitted it only when the apostate brother had already existed at the time of the kiddushin, but not regarding something that arose later. And even on this, Rishonim disagreed, and the Shulchan Arukh ruled in Even HaEzer 154 not like Maharam. And even he did not rely on “ada‘ata de-hachi” concerning something that arose after the kiddushin. See my response on this matter to your article “A Gentile Whom Halakhah Did Not Recognize,” on the “Mussaf Shabbat – Makor Rishon” website.

With blessings, Sh.Z. Lewinger.

That is already a different argument. At first you said that this is wholly irrelevant and compared it to vows, and now you merely say that the Shulchan Arukh did not rule this way.
You perhaps mean section 157, but there the discussion is whether an apostate requires yibbum at all. And several decisors wrote (for example the Bach on section 157 and others) that if he was an apostate at the time of kiddushin, then specifically in that case she understood and accepted it; but if he apostatized afterward, she is exempt without yibbum. In any case, there are two rationales here, and each must be discussed separately: whether an apostate creates the yibbum bond, and whether ada‘ata de-hachi lo ikadsha. Dwarfs have already trodden this ground, and this is not the place for more.
As to the substance of the matter, so long as one does not deny the very permissibility of ada‘ata de-hachi, everything else is an assessment of reality (why women consent and why not), and therefore sources have no great significance for this question. In every place and time one must examine women’s attitudes in that place.
As for your claim regarding Maharam of Rothenburg, apparently you did not read the sources to which I referred. You can see at length in Beit HaLevi, part 3, sec. 3. Rabbi Lavi’s court ruling also discusses this explicitly at length (and many others):
http://www.daat.ac.il/daat/psk/psk.asp?id=1054
You are invited to read again.

That’s all right; even when you type a response to me, you are essentially ignoring the arguments and not addressing them on the merits, apart from vague declarations that my claims are “declarations” and “beside the point.” I was rather surprised that you responded in the first place.

As far as I am concerned, you are welcome to go on ignoring them. In any event, the main thrust of my remarks is directed not to you (I understood long ago whom I am dealing with and did not expect a response at all) but to the audience of your devotees and admirers who drink in your words thirstily and without criticism. (Not all of them, but almost all.) The only thing for which I thank you is that you did not use your power as site owner to censor my comments. Many thanks.

In my remarks about a “matter of forbidden relations” I intended to hint at something, and I wonder whether you did not understand or whether here too there is feigned innocence. In any case, with no choice, I will elaborate a bit more (though not much, so as not to give ideas to the various enemies of Torah).

The “private” batei din (or more accurately, laymen’s courts rushing in headlong) that permit a married woman by means of “bold” rulings of this sort sin doubly (at least).

A. If the permit is accepted by the Chief Rabbinate—what need is there for them? Let the women go to the regional rabbinical court and be permitted to marry. If the Chief Rabbinate does not accept the permit and does not recognize it—what have these headlong enthusiasts accomplished? They have done nothing at all except plant false hopes in the woman’s heart which she will not be able to realize, since in any event she will not be able to marry because the Chief Rabbinate will refuse to register her for marriage.
And if the woman marries in a “private” ceremony and bears children to another man—there is a reasonable, indeed more than reasonable, chance that the Chief Rabbinate will declare the child a mamzer, and under current law the Chief Rabbinate is the determining authority. What God-fearing rabbi is willing to take upon himself responsibility for creating such a tragedy?

Would you say that I am accusing the rabbis of these courts of chasing headlines and publicity with recklessness and irresponsibility at the expense of future personal tragedies? No. I fear I am accusing them of something much graver.

B. The decisive reason why avowed atheists and committed communists agreed, at the founding of the state, to apply halakhah as state law in matters of personal status was the fear of creating a “community of mamzerim” and splitting the people in an irreparable rift. The private courts that permit a married woman through “bold” rulings eliminate this fear (at least in the eyes of secular people) and give a weapon to enemies of Torah who seek to abolish family law based on halakhah and institute civil marriage and divorce. In their view, there is no longer any fear of mamzerut, since some private court can always annul the kiddushin retroactively, and the redeemer has come to Zion, and one can abolish halakhah as state law in family matters.

Did I already say recklessness and irresponsibility? Or perhaps this was the hidden agenda from the outset?

1. Unlike the rabbis dear to you, it is not my way to censor any opinions, good or bad in my eyes, at least so long as they do not harm others (as for me, I generally do not care very much), even if, like yours, they are irrelevant.
2. Your “hints” regarding a matter of forbidden relations are ignoramuses’ talk (at best), since you spoke of a halakhic difference between a matter of forbidden relations and money, and that of course does not exist and is irrelevant to our discussion. Repeating the same nonsense several times does not cease making it nonsense. For this issue, monetary law and forbidden relations are one and the same.
3. Now that it has become clear that your arguments are baseless on the halakhic plane, suddenly you come back and recast them as subtle hints (which I “insist” on not understanding, or affect not to understand) to practical-social arguments. I am a simple and innocent man who thinks that when a person writes something, he means what he wrote and not something else unrelated to what he wrote. Truly a strange assumption, but what can I do—“Be wholehearted with the Lord your God.”
4. But even if that is indeed what you “hinted,” here too you are mistaken. The one creating problems in matters of personal status is the Rabbinate’s insistence on the monopoly in its hands. The one creating mamzerim where they do not exist is the Rabbinate, which does not annul kiddushin that are void and causes women to enter difficult situations and create mamzerim. The one destroying family units in Israel (and bringing it about that most of the public no longer marries at all, and certainly not through the Rabbinate) is the Rabbinate. The one creating de facto bigamy (by recognizing common-law wives) is the Rabbinate, which does not allow any other way out. The one creating an immense and terrible desecration of God’s name through all this is the Rabbinate.
5. If your proofs are taken from Ben-Gurion and his colleagues and their agendas, then apparently we truly have no shared basis for discourse. I do not belong to the party of Ben-Gurion and his interest-driven partners, your friends from the Chief Rabbinate.
6. Contrary to what you say, annulling the kiddushin definitely does solve the problem, because they can marry privately. And if their children are declared mamzerim (I doubt—perhaps in my great innocence—that the Rabbinate will descend to such a level of corruption and thuggery), then the children too can marry privately. Until perhaps, with God’s help, the corrupt and harmful institution you defend here so passionately disintegrates in the end. And anyway, who gets married today?? All these “mamzerim” can also live as a couple without marrying, as is customary in our times because of the wonderful intentions of the Chief Rabbinate with which you so identify. And then let them register all those invisible mamzerim among the mamzerim too. The register will be exhausted, but the mamzerim will not.
7. And in conclusion, if there is anyone here repeating slogans without critical thought, it is not the site’s readers (at least usually). To see that, one need only read the nonsense you wrote here.

A. Thank you.

B. My question is what causes “the buyer did not factor this in” in a way strong enough to void a transaction.
“The conclusion is that the reasoning of ‘ada‘ata de-hachi’ is not built on simple anticipation of the future, but on a probabilistic calculation in the present (assuming there is such-and-such a chance that it will happen and such-and-such will be the cost—he agrees). Fundamentally he wants the transaction on the assumption that everything will go smoothly, and therefore he is willing to take the risk that something bad will happen on the other track.”
So what is the argument—that women do not take into account that a husband may disappear, be violent, or be a get-refuser?
Instead of factoring in infinite-damage*tiny-risk, they factor in infinite-damage*zero-risk?

Why should we not make the lightning-insurance-on-cows argument here too?
If the husband knew that the woman was willing to become betrothed only on condition that he not disappear/refuse/be violent, would he demand other terms?
Just as the cow buyer paid for a cow and not for insurance, so too the woman agreed to marriage without insurance.

C. True, but so long as there is no widespread use of ‘ada‘ata de-hachi,’ in any case one cannot use it.
Here the historical question is relevant—if it was commonly used (relative to the rare cases where it is relevant), then one can say that women truly factored it in when they agreed to become betrothed.
I am quite convinced that the average Jewish woman today knows that there are recalcitrant/violent husbands, but does not really know about the possibility of ‘ada‘ata de-hachi,’ and therefore when she agrees to become betrothed she does factor in the chance of a recalcitrant/violent husband, but does not factor in the chance of ‘ada‘ata de-hachi. The intervention of the court with ‘ada‘ata de-hachi’ is what is external to the agreement.

I join Mordechai’s response. Indeed, this is a tried-and-true recipe for actual mamzerim and/or kosher people not recognized by the Rabbinate (and when this “corrupt institution” falls apart, the real mamzerim too will ask no one).

Strength of words is a sign of weakness of argument. But since you made the effort to answer rather quickly and with a relatively long response, it is fitting that I reply point by point, first to first and last to last.

1. I do not know whom you mean by “the rabbis dear to you,” nor how you know my preferences. In any case, I do not judge opinions according to personal fondness. And you may be surprised, but I too oppose censorship of any kind whatsoever.
2. I will not call your words “ignorance” (though I think they are wrong), because I do not think that is your defining trait. But one can only imagine what your response would be if someone in an argument against you were to declare that “monetary law and forbidden relations are one and the same for this matter”… enough said. However much you intensify your abuse, I still cannot bring myself to believe that you truly do not know that there is indeed an abyssal difference between money and forbidden relations in the quality of evidence required to change status. Unbelievable. Go read Scripture school-level texts.
3. Nothing has been made clear, and I am not retracting my words, as stated above. In my innocence I thought you were wise and could understand one thing from another, and would therefore understand that when I speak of the differences between a monetary matter and a matter of forbidden relations, the implications go farther, though I did not want to elaborate. I still wonder whether to believe you that you truly did not understand because you are a “simple and innocent man,” or whether it was feigned innocence.
4. Why do you complain against the Chief Rabbinate and not against the Holy One, blessed be He? Had He not written in His Torah “Do not commit adultery,” there would be no mamzerim at all. It is He who causes men and women “to enter difficult situations and create mamzerim.” The one who destroys family units in Israel, etc., is the Holy One, blessed be He. The one who creates de facto bigamy is Rabbeinu Gershom. And the one who creates desecration of God’s name…
5. I too am not of Ben-Gurion’s party (and rather detest him), and I am no devotee of the Chief Rabbinate, nor do I have friends there. (Again you “know” who is dear to me and where my friends are.) I am a convinced capitalist and in favor of reducing regulation in every possible field to the necessary minimum. But the necessary minimum is not zero, especially when we live in a state currently ruled by a secular Jewish majority, and enough said.
6. Annulment of kiddushin that is not accepted by the state (which empowered the Chief Rabbinate for this purpose) solves no problem at all, but rather creates a problem far graver. If the Rabbinate’s court does not recognize the annulment, it will have no choice but to declare the children mamzerim (you can call it corruption and thuggery, but that will not help either you or, certainly, them). I am not defending the Rabbinate, certainly not “passionately” (again you “know” my positions, etc.), and I definitely share some of the criticism of the Chief Rabbinate (which, like any regulatory body, cannot be free of problems). But dismissing the danger of splitting the people and creating a community of mamzerim testifies, at the very least, to detachment, if not worse; and since I do not want to sharpen the tone, I will suffice with that, and enough said.
7. Apparently you are among those devotees who do not look in the mirror… Read your “answers” to my comments. In fact, not only those, but a considerable portion of your books and articles (I have read some of them) are, once one peels away the brilliant verbal finery (yes, you certainly know how to write!), slogans and declarations. Usually I do not respond because I see no point in ruminative philosophical discussion (and no, I do not disparage philosophy). But if the masses are impressed by your declarations and become convinced that kiddushin can easily be annulled retroactively, the danger is very great, and ignoring it is at the very least recklessness, if not worse.

An additional question on the more practical plane (since the discussion in the comments has gotten there anyway)—
Where does the rabbi want this situation to end up?

Conversion is one thing: even if five courts did not accept a convert, if a sixth court accepted and converted him—he is a convert, period.
In the question of annulling marriage, that is not the situation.
If there is no Rabbinate monopoly, then automatically there are several courts, and there is no reason to assume they will all always rule the same way. So there will be a woman whom one court rules is still married, while another court rules that her kiddushin is invalid. She remarries (relying on the second court), and now her children are mamzerim according to the first court.
It does not matter which court is the Rabbinate and which is not (or even if both are private); in the bottom line, serious doubts are created here. Instead of one register belonging to the Rabbinate, each panel of judges will have its own register.
How does that help? Is the goal simply to create enough halakhic chaos that in the end there will be no choice but some kind of sweeping permission (et la‘asot, etc.)?

Beyond that, I think there is something very halakhically dishonest about receiving a stringent ruling from one court and then going to another. Of course one does not judge a woman in her distress, but still—one thing if from the outset the divorcee had gone to a particular court, but to go get married through the Rabbinate, hear from the Rabbinate’s courts (even its more liberal judges) that the kiddushin is fully valid, and then go to a private court in order to hear from it that the kiddushin is not valid… that lacks integrity.

And in the current situation, is there uniformity in rulings? And in the secular legal system, is there uniformity? Nonsense. Human beings disagree, whether you like it or not, and so indeed the law depends on before whom you appear. So it was in all generations when we had no Chief Rabbinate, and they got along with it very nicely. Much better than now, when we do have one.
The current situation only increases the chaos rather than reducing it. The Rabbinate tries to create the impression that it is acting to reduce it, but it is one of the main culprits, as I wrote above.

When you see a corrupt and conservative system that imposes itself on you by force of law and power and does you injustice, what do you expect that woman to do? Because the Rabbinate, with the assistance of the legislature, exerts force on her, she is supposed to bow and accept their authority? Why? If some robber were to pounce on you, would you not try to defend yourself?
Again, the situation is exactly the opposite of what you describe: specifically if there were no monopolistic system, there would be room to demand “integrity” from people in the sense you defined here. You went to one beit din and got a ruling against you—do not go to another. But when this is done by force and arbitrariness, it is only to be expected that the woman will do what she can (and so will we).

Notice that in both cases you thought the Rabbinate solves or tries to solve the problem, while the truth is that it creates it. It is worth noticing, because this is not accidental. It is the result of false propaganda by the religious establishment, which has an interest in preserving its monopolistic power. Naive people fall captive to the propaganda and repeat these baseless claims as though they were indisputable facts.

Mordechai,

I do not understand your claim.

At first you wrote about a matter of forbidden relations as opposed to monetary law, and I understood that you wanted to be stricter in matters of forbidden relations than in monetary matters. Therefore, even if we accept a certain reasoning in a transaction made in error regarding a car, we will not accept the same reasoning in a transaction made in error regarding kiddushin. One can of course argue about that, but it is a claim that has room.

Now you explain your earlier hints and say that the problem is the power of the Rabbinate: since the Rabbinate will disqualify the children of that woman (who married according to a private court that permitted her) as mamzerim, the private court is therefore doing an unconscionable act that will merely lead to unnecessary tragedies.

In my view this is not an argument. If according to the true הדין this woman is forbidden to marry, then the private court is both causing her to stumble and creating a problem of mamzerut. But if before Heaven this woman is permitted to the market (which is the private court’s claim), then the Rabbinate is abusing her and is the one doing evil in God’s eyes.

If the second side is truly correct—that these are women permitted to marry and the Rabbinate unjustly holds them back—then the fact that the Rabbinate has the power to declare mamzerim is not a consideration. In such a case your claim is equivalent to saying: “Assad will launch chemical missiles at Israel if we do not dismantle the state, therefore the state should be dismantled.” Some people are impressed by such statements, and others will say that if so, then Assad is a villain and must be fought with all force. If the Rabbinate acts unlawfully, one can very well understand those who say it must be fought, and that the method is to create a growing public of observant Jews who regard the Rabbinate as nonexistent and openly flout its “rulings,” from kashrut to mamzerut. Of course a journey of a thousand miles begins with one step, so one has to start somewhere, and those women who are currently being permitted (along with their relatives and acquaintances, etc.) will be the nucleus of that hypothetical public.

I emphasize that I am not expressing an opinion here on the substance of the issue. What I am saying is that if, in straightforward halakhic reckoning, the Rabbinate is right, then what the private courts are doing has no place. And if not, then it does have a place. But remove from here the power the Rabbinate currently has to declare someone a mamzer; that is not a consideration for anything.

With God’s help, 29 Sivan 5778

Even Maharam, who writes: “For we are witnesses that she does not wish to perform yibbum with him, because he will cause her to transgress religion; on that basis she did not sanctify herself initially”—conditions this on the defect having already existed at the time of kiddushin, and in his words: “Where he was an apostate at the time she became betrothed to his brother, for she took it into account, and it is as though she stipulated on condition that she not have to perform yibbum with him” (Responsa pertaining to the Order of Women, no. 29, cited in Hagahot Veha‘arot to the complete Tur, Even HaEzer 157:4, note 16).

In other words:
Even Maharam said “ada‘ata de-hachi” only where the defect existed at the time of kiddushin, “and she took it into account, and it is as though she stipulated.” But annulment of kiddushin on the basis of what will occur in the future—we have not heard of such a thing! (And even on this the Shulchan Arukh ruled, Even HaEzer 157:4, that one should not rely on it.)

With blessings, Sh.Z. Lewinger

The Beit HaLevi you cited (part 3, sec. 3) concludes that even regarding a grave defect that was concealed at the time of kiddushin, which in his opinion annuls the kiddushin by Torah law, a get is still required at least out of doubt: “However, to exempt her without a get—there is no room at all to say this, for it is no better than a defect found in the woman, where it is explained in sections 38 and 39 that even if he betrothed her without specification, she requires a get out of doubt, and even if he betrothed her without specification and married her without specification, it is only a doubt… only this was clarified here, that it is merely doubtful kiddushin and not certain, and the same applies where great defects are found in the husband” (12c, s.v. ve‘al kol panim).

If so, in a major defect that existed at the time of kiddushin, a get is needed at least out of doubt—how much more so in a defect that arose only afterward.

In Beit HaLevi (ibid., 12a, s.v. vehanir’eh lehasbir), it is explained:
“For certainly that which we say, ‘a woman is satisfied with any husband at all,’ is certainly not an absolute rule for all women… for we plainly see that women too are careful not to marry men with major defects… rather the intent of the Gemara is that a woman might possibly be satisfied even with any husband at all, with ‘it is better to dwell as two,’ and it may be that even with a leprous man she is satisfied… for this is not a self-evident obvious presumption at all, and it can be that she is satisfied with any husband at all; and then we return to the rule that a full stipulation is required, with all the laws of conditions. And especially when she made no stipulation at all, these are unspoken thoughts; and therefore she is certainly fully betrothed.”

In other words: even in the time of Hazal it was clear that most women do not consent to “just any husband at all” (especially not to a repulsive leprous man, whom they compel to divorce), but since there is a possibility that a woman will consent to live with a husband who has a major defect, then whenever she did not stipulate explicitly, it is “like anything a person does without a condition—then we are witnesses that he did it in all circumstances, without any condition, since there is no obvious presumption at all.”

With blessings, Sh.Z. Lewinger

In the case of a woman who fell before an apostate yavam, the Geonim’s opinion that she is exempt from yibbum is well known, but neither they nor those who disagree mention ada‘ata de-hachi. What is the difference between that and the cases discussed here?

The Rishonim and decisors definitely mentioned both rationales, as I noted here. But even if the Geonim did not mention it, that only means that perhaps in their opinion there is tav le-meitav even in that case. This is an assessment of reality.

Sh.Z.L., I referred you to the ruling. If it interests you, then read it. There are various sources from Maharam, and they discuss there their meaning, and cite many decisors who wrote this both in his opinion and as to the matter itself.
The need for a get is a different discussion, and I did not enter into it here (just for your information, when they say “doubt” in this context sometimes they mean stringency and not an actual doubt—for example, so that people will not say that a woman leaves without a get. See, for example, Rashi on Yevamot 31 regarding doubtful divorce as opposed to doubtful kiddushin. But that does not matter for our issue).
And as for the question whether this applies to all women or only some of them—we have already discussed this. The question is where the line runs such that we take it into account. My claim is only that there is such a line; I said nothing about where it runs.

A. Yes, in the secular court system there is uniformity. If a judge decides that I owe money to so-and-so and I think he is robbing me—there is nothing I can do about it. I pay as I was told (or at most appeal within the system). In the batei din you propose, there is no uniformity. Judge A rules one way, and I go to B and ignore A. That is lack of uniformity.
(I am not talking about dependence on the particular judge assigned to my case. I am talking about dependence on the system. You are proposing an alternative religious judicial system. Do you also support an alternative civil judicial system? Why not? What is the difference?)

B. Again, I am not blaming the specific woman, because one does not judge a person in distress. And who exactly is “forcing” anything on her?
She can do whatever she wants with whatever man she wants. What prevents that from her is either halakhah or the get-refuser, not the court. The only thing the court prevents is the possibility of being registered in the Interior Ministry as married. That is not coercion.

C. What will the situation look like in the world toward which you aspire?
What will prevent a person from receiving a negative ruling in one court and going to another court in order to receive a different decision?
What will prevent the personal status of some woman from being single in Court A, divorced in Court B, and married in Court C?
Is this something you think will not happen, or something you do not care if it happens?

D. I do not think that in the past the situation was so non-monopolistic.
In the past there was not the mixing of communities that exists today, and so there was no place to speak of a national monopoly but rather a communal monopoly. Within the same community, were there several batei din that disagreed in their rulings and did not accept the authority of some leading sage of the generation?

She married for the money, which she received at the beginning, or for anything else she received at the beginning.
The difference from going up to the Land of Israel is that there we are dealing with money, which is both much less severe and reversible, whereas here we are dealing with forbidden relations and with something irreversible. If a witness were to come before the court and say that this had indeed been the intention from the outset, what would they do?

With God’s help, 1 Tammuz 5778

To Rabbi Michael Abraham—greetings,

I examined the rabbinical court ruling from Tzfat. Their conclusion is that one cannot permit in practice on the basis of Maharam’s reasoning, both because of the question whether he also permitted a future defect, and because he himself writes, “my heart did not embolden me” to permit against the responsum of the Geonim. In practice they were willing to rely on the direction of annulling kiddushin retroactively because of “ada‘ata de-hachi” only as a supporting branch to their primary permit on the basis of granting the get on behalf of the “vegetative state” husband, which does not apply in the case at hand.

It should be borne in mind that even if some sage claims that he can decide the question with confidence—in the final analysis, in the Torah world the matter will remain “disputed,” and not a few batei din will reach a different conclusion in their analysis. The woman who goes and marries on the basis of the “brave ruling” will solve her personal problem—but her descendants and their descendants to the end of all generations will remain under a constant fear that the court in the place where they live will not accept the lenient opinion, and they will be defined in their community as mamzerim because their mother or grandmother or great-grandmother married on the basis of a disputed permit.

So long as there is no “Great Court” whose decision is accepted by the entire Torah world, a constant suspicion of mamzerut will rest upon the descendants. So what have the “brave” achieved through their bravery? By contrast, when one searches for and finds a path of permission accepted by the majority of decisors—then one can give the agunah and her descendants true relief, which will lead to general recognition of their fitness to enter the congregation.

With blessings, Sh.Z. Lewinger

A. That is not uniformity but singularity. Another court can rule completely differently. It is just that there, once you litigate in one court, you cannot turn to another. That is something different from uniformity.
The difference between the Rabbinate and that is that the Rabbinate imposes norms that it itself decided on, whereas the court imposes norms established by law, and the legislature can also change them and adapt them to reality. None of this happens in halakhah and in the Rabbinate.
Incidentally, when there is a system that is systematically unjust, there is room in the civil courts too to do the same thing. Incidentally, the Rabbinate’s own judges will tell you not to go to a civil court (because that is going before gentile courts), but rather to batei din. Quite a parallel system.
C. What prevented this all those years when there was no Chief Rabbinate? Does the Rabbinate care whether this happens? On the strength of these arguments they are trying to get the monopoly. If they are worried about the situation, let them give up.
D. There were batei din within the same community, and one could also go to another community.

Sh.Z.L., I did not refer you to the ruling as a source of authority. I am the last person who would rely on a Rabbinate court. I referred you there to see the sources.
Incidentally, the disputed ruling of the Tzfat beit din was given by that same Rabbi Uriel Lavi. And incidentally, they relied on a mechanism much more disputed than the mechanism of ada‘ata de-hachi. Their mechanism has never been used before (and in my opinion it is not correct either).
A Rabbinate court too decides in disputed cases, and there too you can argue that it acts unlawfully because others will dispute the matter. Again, see Tzfat. There is no issue here of majority and minority. I see no principled difference. Whoever objects—let him object.

A. Even today one rabbinical court can rule differently from another. What is the difference? One panel of judges will make one decision and another panel another—exactly as in the civil courts.
The unity is that the whole people are under the authority of one establishment. No one proposes an alternative to the establishment of the civil judicial system in Israel. You do propose an alternative to the establishment of the religious judicial system in Israel.
The judges are appointed by a process quite similar to that of civil judges. The only difference is the source of binding authority—
here the judges’ interpretation of halakhah, and there the judges’ interpretation of Israeli law.
What is wrong here on the principled level?

C. I am not challenging the Rabbinate right now. There is no dispute that the Rabbinate does not conduct itself properly.
Most of the people who oppose the Rabbinate today make childish anarchistic-leftist arguments (roughly like “give the Palestinians a state,” “lift the blockade on Gaza,” “privatize the IDF,” “tax is theft,” and other slogans).
A real alternative needs to be more serious than that.
Beyond that, the objections are less forceful against the Rabbinate. Right now the mainstream is still on their side.

D. Going to another community does not sound to me like something very accessible a few centuries ago.
Is there a significant number of rabbinical courts that disagreed on matters of personal status, where the same person went to a second court after receiving a ruling he did not like in the first? Was there no supreme authority to which people turned in such cases?
I would be very surprised if that was the case.

We have exhausted this. Let the chooser choose.

To the Jewish gentleman,

When I have a range of arguments, I can choose which one to raise. There are various considerations. That is what the law of migo is built on; I have heard from jurists that it has no equivalent in other legal systems. On the contrary, if you raise an additional argument, they will say you “invented” it after realizing that the first argument was weak, etc., and this is not the place to elaborate.

In my first response I merely claimed that the “paradox” pointed out by the owner of the site (hereafter: RSA, the site-owning rabbi) is no paradox at all. A paradox is a logical contradiction. “The halakhah is such, but we do not instruct accordingly” is not a logical contradiction. There is a tool (for example, nuclear energy), and there are those who claim that it should not be used because it is dangerous. That is not a paradox. Similar situations exist in halakhah as well. For example: the law of “whoever is stronger prevails” (Bava Batra 34b) is not disputed (Rambam, Laws of Claimant and Defendant 15:4; Tur and Shulchan Arukh Choshen Mishpat 146:22), and nevertheless Rabbi Asher Weiss told me he knows of no such ruling given in the last 1,500 years, although it is improbable that in so long a period no Torah case arose in which the conditions for this law were met. (A computerized search produced one rather puzzling ruling by Rabbi Yehuda Silman.) Rabbi Yaakov Reisher (Shevut Yaakov, I do not remember which section) proposed an explanation for this “paradox.”

In our case, I suggested that the decisors refrained from annulling kiddushin because of “ada‘ata de-hachi” because this is a matter of forbidden relations, in which a more certain level of proof is required than that needed for annulling an acquisition in a monetary matter. The decisors feared relying on “ada‘ata de-hachi” because it is difficult to prove and its interpretation is not agreed upon; and in a matter of forbidden relations, where there is concern over wrongly permitting a married woman, etc., the decisors preferred to refrain, even at the cost of one personal tragedy, so as not to create many personal tragedies (of mamzerim, etc.).

My explanation may be right or it may be wrong. In any case, I hoped the site-owning rabbi would understand the hint—that one does not play rabbinic political games in matters of forbidden relations on the backs of miserable women. He claims he did not understand because he is an “innocent man,” and I suspect he understood very well. (Despite my criticism of him, he is no ignoramus, no innocent, and no fool—not at all.) The indication of this is the ugly ad hominem attack with which he “answered” me. If I am mistaken, he could have pointed out the mistake pleasantly and sensibly. Violence (even if “only” verbal), condescension, personal insults, ridicule, and belittling hint at intellectual distress (see I Kings 22:24).

If we knew what is revealed before Heaven, we would not need courts at all. But “it is not in heaven,” and therefore there can be disagreements in halakhah, and that is perfectly fine. But to portray the judges of Israel as a gang of wicked people interested in nothing but abusing unfortunate women is antisemitic slander. The site-owning rabbi has the right to disagree with a ruling, but not to slander. I did not understand what Assad has to do with the matter. My premise is that unless proven otherwise, the judges of Israel adjudicate in good faith and in fear of Heaven, according to accepted rules of halakhic decision and established precedents, in the way of Torah. So long as authority remains in their hands, “even if they err,” a ruling from a private court permitting a woman whom the Chief Rabbinate has forbidden will solve nothing for her, but may create further tragedies if such a woman conceives by another man.

To this the site-owning rabbi replied that there will be no problem of mamzerut because private courts can permit mamzerim just as they permitted a married woman, etc. I responded that such anarchy is liable to split the people into communities that will not be able to marry into one another, in a rift that will never heal. The site-owning rabbi, however, in another response scoffs at this danger and claims that such problems did not arise in the Diaspora; but that is not so (see Kiddushin 70b and elsewhere). “World wars” were waged among batei din in the Diaspora over the validity of gittin, and this is not the place to elaborate (and I do not believe the site-owning rabbi is unaware of them). I further argued that, if so, he is giving a weapon to those who seek to abolish the status of halakhah in personal-status law in the State of Israel, and if that is his intention he ought to declare it openly rather than hiding behind a false mask of concern for unfortunate women. Note that in response to Nadav’s remark, the site-owning rabbi lashed out at “the false propaganda of the religious establishment, which has an interest in preserving its monopolistic power.” This is exactly the rhetoric of those who seek to abolish the status of halakhah in personal-status law. The awl has come out of the bag.

The difference between a monetary matter and a matter of forbidden relations is that money can be waived; that is, any consent, for whatever reason, to let another use my property or even acquire it is legally effective, and since he acts with my permission or with the permission of the court there is not even a slight prohibition involved. By contrast, the prohibition of a married woman is such that even if the husband, the wife, and the court (for non-halakhic reasons) decide to permit the woman to marry another, that will not help, and she remains forbidden under a severe prohibition punishable by execution by the court and karet.

Well said!

A side note — the law of migo does not mean that one may make one claim and then afterward make another. That is a different sugya, and there, if my memory does not fail me, we rule that an explanation is needed for why a false claim was made initially.
The law of migo means that I make claim A in order to gain B. Since if I had made claim C I would have gained B because the court would have believed me, I am believed that indeed A is true.
This legal structure is indeed not trivial, because the fact that I could have made a credible claim does not give me the right to receive the same gain by means of a claim that is not credible.
The difference stems from the fact that Torah law is a law of claimant and defendant, whereas the law of the nations is the judge’s determination of what is the just act (hence, for example, the difference that in Torah law any litigant or interested party does not testify, whereas in general law they do testify).

To Moshe G.,

Indeed, this is a side note, and this is not the place for a detailed discussion of the law of migo.

For our purposes, my two arguments are equally “credible,” and I believe both are true and correct (and I have a few more that I did not raise). But I did not want to raise the second until I was forced to by the site-owning rabbi, because I did not want to hand a weapon to those who challenge the application of halakhah as state law in matters of personal status. Since the site-owning rabbi himself is doing exactly that openly, and it remains only to wonder whether he is aware of this and intends it, that consideration is no longer relevant.

To Nadav

I do not think the rabbi thinks the things being said here, and I did not come to explain him. Nor is this the place to expand on what I will say, but briefly I will note that there is a difference between the judicial system, the army, and the government, on the one hand, and the rabbinic (religious) establishment on the other. The authority of the first systems derives from the acceptance of the whole people, precisely because it is simply impossible to have national existence without them. The Chief Rabbinate today is controlled by one sector (apparently through backroom deals the public is unaware of) and is not based on the people’s acceptance (it does not reflect the range of tribes/religious communities living here). In such a situation, we revert to the communal life of the Diaspora; this is not anarchy or leftism. It is simply the reality that people (even if they are great Torah scholars) do not understand the public over which they rule (and in this respect the Haredim are like Torah scholars without understanding). Therefore they bear no responsibility toward it. This has nothing to do with whether they are halakhically right or wrong. There is no authority without responsibility. The Haredim have none. Just as they had no responsibility before the Holocaust for Jewish lives, so too in cases like these it would not be unreasonable to suspect that they care no more about women than about their own piety (under the guise of “fear of issuing rulings”). And I have already heard of leniencies the Haredim pulled out from under the table when it was a rebbe’s daughter.

And even concern for a split in the nation has limits. There is a point beyond which the situation can no longer be tolerated (and it is worth discussing whether we have reached it). Then there will be a split in the nation. The second option is worse. And what was there hundreds of years ago? Was there no such fear then? According to Beit Shammai (before the heavenly voice came down), were there not “the mamzerim of Beit Hillel”? But the Haredi rabbis suspect Tzohar rabbis of Reform tendencies (even without basis), and I see no reason why in such a case one may not suspect the Haredim of corruption and decay (if there is basis for such suspicion). I do not believe these concerns about a “split in the nation”; it is simply a desire for control. It does not seem that the Haredim care in the least about the other publics. They care only about their own community, like good Diaspora Jews. They need some nobleman to swindle for rent (one cannot have good exile life without one), and in the State of Israel the state functions for them as such a nobleman. And if that sounds antisemitic to you, so what—the question is whether it is true. Otherwise they would volunteer of their own accord for separate units in the IDF. They simply need, by force, to separate themselves from someone here (as Rabbi Shach said, the internal wars kept the Jews going in exile). And the same is true among most of the Religious Zionist rabbis of our generation, who learned the ways of Haredi pashkevil-style behavior in the yeshivot (and I do not know who is not like that; in my humble opinion almost all rabbis are, and perhaps Rabbi Michi is too. Everyone has interests, like all other human beings, whether they are aware of it or not, except for a few holy people, and I do not know who they are, though I know such people can exist). So do you think they care about the rest of the public? (And this is not the place to expand on representatives of the public in the other systems of government.) In such a situation, one simply needs to separate, and that’s it.

And incidentally, according to this, even the state system has limits. If the government becomes corrupt and sectarian to such a level, the state will indeed collapse in practice (which is what happened in the periods of both the First and Second Temples), and we will return to exile life. What keeps the judicial system and the army functioning as national institutions is the fact that they still bear national responsibility (as for the Supreme Court, I think it is on the road to perdition with the calf of “human rights” at the expense of citizens’ lives here. And as Moti Yogev nicely said, the Supreme Court is “the butcher’s block”). The moment they cease to be responsible, the state will collapse.

Well, at this point I no longer have the strength to continue.

To Eilon,
And it could be the opposite: the public might choose the Rabbinate, and against the will of the Haredim impose the Rabbinate on them and on everyone else. Then the Rabbinate will become singular like the other state systems, and anyone who wants to act will have to act through it. Rabbi Michi and Tzohar operate in a twilight reality in which the Rabbinate has no authority vis-à-vis the Haredim, and therefore also no authority vis-à-vis the other communities. The only ones who accept its authority are the traditionalists and the secular. But as the gravitational pull of the traditionalists grows, the ability of the Haredim and the modern religious to speak מול the Rabbinate will diminish. Not because the traditionalists understand anything about life, but because they understand nothing about life.

And one more thing. I refrain from intervening in the technical discussion. I read it in order to learn Torah, not in order to announce my opinion (I do not understand enough to establish one). The emotional involvement of the writers, including my teacher Rabbi Michi, surprises me and on some level interferes with me. I understand that this allows people to vent their feelings, and therefore it is important, but there is a certain coarseness in loading their emotions onto the public. As a traditionalist, I have no opinion on these subjects, and I would be glad if the purity of the discussion were preserved.

No awl has come out of the bag. Rabbi Michi clearly supports separation of religion and state (I do not know whether in principle or only because of the current sociological reality), and he has good reasons for this (though in my humble opinion he is wrong on that issue).

Besides, so there were world wars among batei din in exile. And what happened? Did the world collapse? Is the state full of mamzerim? This is just panic, which itself shows that there is no good faith behind it. A person seeking truth does not panic because others are mistaken, in his opinion.

And regarding the corruption of the judges of Israel, I do not know what has been proved and what has not, because I do not know the system as a whole from close up. But there are bad rumors about it (at least that is what I hear), and not only from “those seeking to abolish the status of halakhah in matters of personal status,” as you put it. Even bad rumors have a critical mass (which I do not know whether it truly exists) from which point one should be concerned about them.

And in general, do not be surprised that Rabbi Michi responds to you ad hominem. You sound like a classic Haredi (and truthfully many religious people are like that too), who from the day he was born has suckled Haredi propaganda into his blood together with his mother’s milk. Part of this propaganda is that “we” are the righteous and everyone else is wicked, no matter what “we” or “they” do. This is something characteristic of closed societies in general, but the Haredim excel at it. It is very difficult to speak with someone like that. As they say: may God have mercy.

To Y.D.

You are mistaken in these things. In the reality you described, the Rabbinate would not impose its view on the Haredim. And not only in the future tense but also in the past tense. In fact it did not. That was the case from the founding of the state until today: the Haredim were given autonomy in the religious sphere. And the modern religious, if they were in the Rabbinate, would allow the Haredim to establish batei din within their communities because they understand the value of tolerance (and as the rabbi likes to say—not pluralism).

Likewise regarding a clean discussion—even though I would like that, there really is no such thing on topics like these. This is not mathematics or physics. Even over global warming there are fierce arguments. But here, in my opinion, it has already become an actual war. It has gone beyond the boundary of an argument. You too, though you think otherwise, are not neutral—at least not for long. Even in soccer games, after 80 minutes a neutral spectator will no longer remain so—unless he does not care about the game, but then he would not make it to the 80th minute without falling asleep. The only thing possible is to try to reach the truth by weighing the arguments of each side, and over time one is granted truth from above. This is not something a person can seize by force. To be a truly genuine person (there is really no such thing, though there is a critical mass from which one can call a person a man of truth) is to be a holy person. Such people were Rabbi Kook or Rabbi Yehuda Ashlag. Certainly not an average person. Until then, as the rabbi says, let each present his arguments, and let the chooser choose.

With God’s help, 30 Sivan 5778

To Rabbi Michael Abraham—greetings,

It is not enough to multiply sources discussing the question of “ada‘ata de-hachi” in annulling kiddushin. It is the nature of halakhic literature to overturn every possible stone, whether from the standpoint of “to magnify Torah” or from the thought that perhaps one might find some ground of permission or at least a supporting branch. The question is whether, in all the discussions in halakhic literature, there emerged any practical precedent to permit a married woman without a get on the basis of “ada‘ata de-hachi” regarding a future scenario.

From reason alone, the matter seems very far-fetched. Every agreement between people would become doubtful lest in the future something occur that would make the transaction unprofitable. One simply cannot live like that. I myself had such a case. I sold an apartment in Ramot 28 years ago for $30,000 in order to buy a house in Kochav HaShachar. A few months later the price of apartments in Ramot doubled, and it is 100% clear that had I known at the time of sale that this would happen, I would have waited a few months for the price to rise. So shall I convene a one-sided beit din that will rule for me that the sale is void because of “ada‘ata de-hachi”? 🙂

Nor could we establish firm halakhic conclusions from a Gemara passage stated by way of give-and-take, for perhaps the words were said according to the assumption of the questioner and the like. After all, if kiddushin lapses because of a future scenario, why do we need all the laws of the agunah and the problems of “waters with no end,” and why the trouble over coercing a get? The kiddushin would simply be void from the outset because “she was not betrothed on that basis.” And peace upon Israel.

And in Maharam’s words, who was apparently the first to take the Gemara’s sugya in the direction of practical ramifications, in the responsum cited in Hagahot Maimoniyot he explicitly qualifies the permission to a situation in which the man was an apostate at the time of kiddushin (and the Hazon Ish ruled that one should be concerned for this responsum), and beyond that Maharam himself writes that his heart did not embolden him to disagree with the Geonim and permit in practice.

So every source that discusses this direction must be examined to see whether its discussion produced a practical permission that can be viewed as a precedent.

With blessings, Sh.Z. Lewinger

And from one matter to another, one should ask regarding a private beit din: the validity of kiddushin is a matter concerning two parties, husband and wife. How can one adjudicate one-sidedly? Granted, an expert court for the public, recognized by the majority of the public, can compel the husband to litigate before it, and if he refuses, the court can rule in his absence. But a private beit din set up and summoned ad hoc at the request of one party—what power and what authority does it have?

To Mordechai.

If so, I apparently did not fully grasp your earlier meaning. Now you are claiming, if I understood you correctly, that one must be extremely fearful in issuing a ruling in a matter of forbidden relations because it may lead to stumbling blocks and to splitting the nation. You say that for this reason courts in the past refrained from using the reasoning of transaction in error, and you think that in the present too one should refrain from it for the same reason.

If indeed this is your claim, then the criticism I wrote above indeed does not apply to it (if you look at your previous message perhaps you will agree that its plain meaning was as I understood, but that does not matter). In any event there are several points perhaps worth considering in light of your new response.

First, must one really take such a concern into account? My feeling, like yours, is that indeed this is a serious concern, but what will you say about an arranged sugya in the Jerusalem Talmud (Yevamot 15, end of halakhah 4): “A case came before Rabbi Immi; he said to him: It is certain that she is permitted to you, but know that the children of that man are mamzerim before Heaven; and Rabbi Zeira praised him, saying that he set the matter on a true footing.” Why did he not forbid him to marry because of the problem of mamzerut?

And in general, הרי in the time of the Geonim they coerced divorce for hundreds of years in cases of ma’is alai by the woman, and all those divorces, according to today’s courts, are invalid and the offspring are mamzerim. Who permitted the earlier sages to change the halakhah in such a case? I assume they simply held that the truth was as they said, and they did not care about the personal status of certain people. But if the consideration of not increasing mamzerim is supposed to enter the halakhic calculus, then the step of the earlier sages in this matter is extremely startling.

Second, if you call for taking social consequences into account, then the coin has two sides. Suppose for the sake of argument (I believe you will agree with me on this) that the judges of the Rabbinate take a very conservative line in order not to cause division in Israel. But the price is paid by a group of people—for example agunot—and in the world in which we live they protest and get angry and go to the media and receive sympathetic coverage and create anti-religious public opinion and anti-Rabbinate opinion, etc. That is also a side of the coin, no? Perhaps it would be better to establish things on the basis of strict halakhic truth in order to prevent such social consequences? It is easy to understand that even if we do not suspect the Rabbinate judges of being “a gang of wicked people interested only in abusing unfortunate women” (and I do not think anyone believes that), one can certainly suspect them that when they make the sort of calculations you are talking about, a very particular segment of society stands before their eyes. Some people think differently from them on this point.

[Incidentally, what you wrote about “even if they err” is a grave mistake. We do not say “even if they err” except regarding sanctification of the new moon; in every other subject, even in an error of the Great Court, if there is a student fit to rule who knew they erred, he is not atoned for through the communal bull of erroneous ruling. The question is who is right, not who has authority.]

[Incidentally, incidentally: why, in your opinion, did they not rule all these years according to “whoever is stronger prevails”? From your comparison it seems you hint that the rabbis of Israel throughout the generations ruled not according to halakhah (Reformers!) in order to achieve socially desirable outcomes in their opinion (which is why you lament the private courts that do not take social consequences into account as above)—are you prepared to say that explicitly?]

[And incidentally, incidentally, incidentally, if “condescension, personal insults, ridicule, and belittling hint at intellectual distress,” then one could shut down 99.9% of the yeshiva world in its current format. I assume you are aware of that too.]

The truth is that I have no position for or against the Rabbinate. In my view the state should adopt Brachyahu Lifshitz’s proposal, but that adoption has no connection to who compels the get. The state’s dissolution of kiddushin applies even to one who arranges a get with the Edah Haredit, so long as he performed kiddushin through money.
All this, with all due respect, has nothing to do with the question of ada‘ata de-hachi, which is the subject of the post. There are judges in the Rabbinate who adopt it. There are judges in the private sector who reject it. And the mix that Mordechai is making here with the issue of the Chief Rabbinate is simply irrelevant. What interests me personally is the question of ada‘ata de-hachi, not the political/faith-based/metaphysical/statist/… question of the existence of the Rabbinate. Rabbi Michi’s position I know. The opposing position I also know. And despite all the violent rhetoric on both sides, it seems to me that the heavens will not fall if either of the two positions is accepted. I have often heard Rabbi Cherlow say that in reality there is no vacuum. If the Chief Rabbinate goes, another body will arise in its place to handle the problems the Rabbinate currently handles (and I will not enter the question of how successfully). In any event, neither side has the authority to decide, and therefore the argument, in my view, is pointless.

That is just my opinion, but it really is not important. More important is to clarify the issue of ada‘ata de-hachi and understand the troubling questions that arise from it, instead of fighting unimportant battles.

With God’s help, 30 Sivan 5778

Regarding the matter of “granting a get” on behalf of someone who lacks mental capacity, the matter relies on the reasoning of the Hazon Ish. I pointed to background and references and added a few comments in my responses to Rachel Levmore’s article “A Dangerous Precedent” on the “Mussaf Shabbat – Makor Rishon” website.

With a get-refuser whom the court has ruled should be coerced by imprisonment, perhaps there is room to discuss this according to the Rambam, who explained that in truth his will is to act according to the Torah and only his evil inclination restrains him; therefore, after they beat him, he truly wants to comply. And perhaps here too one might say that once he knows that by Torah and morality he is obligated to divorce, and after he has been sitting in prison for several years, certainly deep down he wishes to go free, and only his pride prevents him from yielding—if so, perhaps there is room to say that giving the get is a benefit to him even if outwardly he screams and refuses; this requires investigation.

With blessings, Sh.Z. Lewinger

I would further note that, seemingly, according to the reasoning that kiddushin are void retroactively by an obvious presumption even because of a future scenario, one could have exempted David from the sin of Bathsheba, for presumably she was married off to Uriah as a match because he was an important army officer; yet it is obvious that had they known David would later desire her, they certainly would not have chosen Uriah as a groom instead of the king (and there is also no reasoning of “she is satisfied with any husband at all,” for surely a woman would prefer marrying the king to someone lesser than him).

So then why did Hazal need the reasoning of “it was coercion,” or that “everyone who went out to the wars of the house of David wrote a get for his wife”? We have a broad permission: had they known David would want her, her parents would never have agreed to marry her to Uriah, and thus her kiddushin to Uriah were void from the outset! This requires a bit of thought.

I stopped my involvement in the discussion because it is no longer constructive, but I must make here a general comment on a fundamental misunderstanding that lies at its base.
In these posts I did not come to argue in favor of the mechanism and its practical implementation (though I do indeed support it), nor against the rabbinical courts (though I have a great deal in my heart against them). I certainly did not write anywhere that they are all wicked and indifferent to the fate of women. Where on earth did people here invent this claim, which has not the slightest hint in the text?! My purpose was to describe the outlines of the discussion, that is, the halakhic-analytical sugya.
Therefore I did not write when and whether this mechanism should be implemented in practice, and all the anger arising here around that point is simply the writers’ venting of anger (legitimate, but there is no point discussing it).
As for whether to implement it in practice, as stated, I definitely think so in certain circumstances (after all, I even wrote that in all the cases that came to me asking me to act, except one—and really two—I wrote that in my opinion there was no possibility of implementing it in practice, and that is what I did. As best I recall, one of them was this publicized case), but that is not the subject of the discussion.
All the emotions raised here, the invention of statements and putting them in my mouth although I never said them, and the fiery criticism directed at me revolved around that question, which never arose for discussion and on which I did not express a view. I truly do not understand this lack of reading comprehension. Both Sh.Z.L. and Mordechai here are firing at straw men and do not stop with these irrelevant and foolish claims. Strange…

Since there are Rishonim and Acharonim who understood Maharam’s view to mean that even a future event may bring about retroactive annulment of kiddushin, it is our duty to understand the logic of this, for it is not plausible that an act of acquisition should remain hanging in doubt all one’s life as to its validity. One cannot live like that.

It occurred to me that the rationale is that kiddushin is essentially a transaction with consideration. The husband offers his wife: “Be my wife according to the law of Moses and Israel,” and in return he promises her: “And I, by my word and with God’s help, will serve, honor, feed, sustain, and support you according to the manner of Jewish men.”

In other words: in exchange for the woman’s agreement to become betrothed to him, the man promised a substantial “payment”: to honor her, support her, and care for her all his life. One can therefore say that when he brazenly and grossly violates his undertaking, this is like one who buys property and is unwilling to pay for it, where indeed there are cases in which they discuss retroactive annulment of the sale.

That is the side of the reasoning; in practice, of course, one must follow the rulings of the decisors to whose light the house of Israel has consented to walk!

With blessings, Sh.Z. Lewinger

With God’s help, 1 Tammuz 5778

To Rabbi Michael Abraham—greetings,

Since your purpose is to discuss the halakhic-analytical topic of retroactively annulling kiddushin on the basis of a future event, and since the topic interests me, I looked into it a bit and shared with the site’s readers what I came up with, and as you wrote above: “We have exhausted it, and let the chooser choose.”

With blessings, Sh.Z. Lewinger

As for “straw men,” I did not address them, but in the public discussion of this topic there is “a lot of straw.” It may be that the rabbis involved are acting in good faith to permit only in those narrow cases where, in their opinion, there is a solid basis to permit. But one must be aware that there are factors whose goal is to undermine the entire stability of marriage in Israel, and whose finger is “quick on the trigger” to bring about, wholesale, the swift termination of any conflict that arises between spouses by dissolving the marriage; and one must be careful. This is not the place to elaborate, enough said, and heaven forbid.

In the last paragraph, line 2:
…acting in good faith to permit only in those narrow cases…

What Rabbi Michael Abraham discusses in the “second reservation” about someone who sells his field in order to go up to the Land of Israel (Kiddushin 49b–50a) is not a matter of “ada‘ata de-hachi.” Rabbah concludes there that even though he said before the sale that this was his purpose, since he did not specify at the time of the sale, it is “matters of the heart”; and only when he revealed his intention at the time of the sale that this is why he was selling do his words avail even without a double condition, because the explicit statement combines with the presumption that no one sells his lands for nothing. The parameters of when one needs a full condition, when mere disclosure of intent is enough, and when we say an “obvious presumption,” are explained in the rulings of the Rosh, Ketubot 11:9, and Tur and Shulchan Arukh, Choshen Mishpat, section 207.

With blessings, Sh.Z. Lewinger:

Even if we view the ketubbah as some kind of condition, it is hard to accept that a condition written in the ketubbah suspends the kiddushin that took place earlier. Beyond that, consideration set in a contract is not a condition, just as when you sold something and the other party did not pay, the sale is not void. Sue him so he will pay.

There is a situation in sales of “he enters and exits demanding the money” (ayil venafik azuzei; Bava Metzia 77) which, according to some Rishonim, brings about the lapse of the entire sale from the outset (or at least the seller’s right to retract from the entire sale). See on this Rabbi Baruch Winetraub’s article, “The Importance of Payment for the Validity of a Sale” (on the Virtual Beit Midrash website), and Rabbi Yaniv Hassan’s article, “An Explanation of the Views of the Rishonim on the Issue of ‘Ayil Venafik Azuzei’ according to the Gra” (on the Asif website). It stands to reason that a woman’s expectation that her husband fulfill his obligation to care for her, honor her, and support her is much more than merely “he enters and exits demanding the money.”

With blessings, Sh.Z. Lewinger

On the other hand, it also stands to reason that with a woman there is the presumption that a person does not make his intercourse licentious, and there is strong reason to say that she would prefer the court (and, following it, the enforcement authorities) to compel the recalcitrant husband to fulfill his obligations or release her with a get; this is preferable for her to a retroactive annulment that would turn years of life together into “licentious intercourse.” Does the State of Israel lack “special means” to deal with someone who refuses the court’s ruling? This secret has already been revealed to Nizri, and to Duma be praise 🙂

To Rabbi Michael, owner of the site,

I too did not come to argue for or against implementing the “mechanism” (as you call it). I am neither rabbi, nor judge, nor decisor, and therefore I have no position on the matter itself. I merely referred to the “paradox” that you devoted length to discussing, and in my opinion it is no paradox at all, because in my limited understanding a paradox is a logical contradiction, whereas refraining from using a certain tool may perhaps be puzzling but is not a logical contradiction. I proposed an explanation for the refraining in the present case. If in your opinion the explanation is wrong, that is perfectly fine. But one cannot dismiss the empirical fact as “a question in psychology.” A little credit to the great sages of Israel over hundreds and thousands of years.

As for emotions, it seems to me that I was careful with your honor, although I did not receive reciprocity, and I even emphasized that I would not answer you in kind and would not call your words “ignorance” or “nonsense,” because I do not think you are an ignoramus. (Quite the opposite.) That does not mean I agree with everything I have read from your pen. Sometimes I read posts on your blog that I delight in, and sometimes I get angry (as with this post). Go back and read my comments and you will see that I tried, as much as I could, to be careful with your honor while firmly maintaining my opinion (since you did not offer any substantive reason to show where I am wrong).

“The words of the wise are spoken gently” is a necessary condition for “being heard.” The late Moshe Sneh already taught us this in a footnote he left on a speech he forgot on the Knesset podium: “At this point one must raise one’s voice because the argument is weak”… Perhaps it is no accident that (almost) always the halakhah is not in accordance with the Raavad and the Rogatchover? I do not understand what you are trying to achieve with sarcasm, the derogatory labels you attach to those who disagree with you (the chairman of the Medical Association, the Chief Rabbi, and even poor me), and the sweeping mudslinging at the judges of Israel (“the religious establishment,” God save us). Why is this needed if, in your view, your arguments are properly grounded? Whom is this supposed to persuade? Incidentally, just this week we learned that the problems in Tzohar’s kashrut system dwarf all the claims raised against the kashrut system of the Chief Rabbinate. This teaches you that just as love and hate can distort the line, so too competition can build and can destroy, especially when one can easily identify several factors recognized in economic literature as causes of market failure—and this is not the place to elaborate. But a mistake by a kashrut supervisor causes “only” a stumbling in the prohibition of forbidden foods (God forbid). A mistake by a judge may create a tragedy for generations. To dismiss the caution exercised by generations of sages and decisors as “a question in psychology” is really neither respectful nor honorable—first and foremost to you.

I have much more to say and write, but I have a few other occupations… With your permission, a few brief comments in response to some of the commenters who addressed my remarks.

To Eilon:

Separating religion from state is a weighty question. I am not familiar with Rabbi Michael’s reasons, but I do know Professor Yeshayahu Leibowitz’s reasons, and they were not empty (even if I was not persuaded). That is a legitimate position, provided one presents it as such and does not hide behind concern for women’s distress. Someone who supports the status quo can also belong to the camp of those sensitive to human suffering.

For many Jewish families in the Diaspora, the world indeed collapsed. But what does that have to do with the state? Perhaps the state is not full of mamzerim because there is a regulatory authority with teeth and adulterers are cautious? Kiddushin 70 implies that where such authority did not exist, mamzerim did indeed multiply, but I do not really know. Do you know? Then please share it with us. In any case, I do not think an experiment in social engineering on Israeli society is a good idea.

I am not Haredi! (Again and again I marvel at the assessments of people who have never met me but know more about me than I know about myself… Is the land full of the Holy Spirit?) But suppose I were—so what? Are Haredim not children of Abraham, Isaac, and Jacob? Are they fair game for insults, condescension, and ad hominem responses?

To Yehudi:

As I wrote above, I am not a rabbi, decisor, or judge, and therefore I am not entering the halakhic clarification of the matter. I merely proposed an explanation for the decisors’ avoidance of annulling kiddushin on the claim of “ada‘ata de-hachi.” You think the explanation is wrong? Legitimate. If you are right, then one must seek another explanation (not psychological and not psychologistic), and if one cannot find one, then it requires further investigation.

Incidentally, the commotion is much ado about almost nothing. According to statistics, the number of agunot and women refused a get whose cases are truly hard to solve is tiny (there are more men refused a get than women refused a get). There are thousands of divorces every year and only a few couples who have gotten stuck with such problems since the founding of the state. Likewise, Rabbi Michael’s site-owner’s emphatic statement that “most of the public no longer marries at all, and certainly not through the Rabbinate” is at the very least wild exaggeration. Nothing of the kind. If the goal is separation of religion and state, then let that be presented as such and let arguments be given on the merits. Do not hide behind the backs of unfortunate women and do not inflate problems.

To Eilon—
1. The people’s will is determined through the democratic game.
The General Staff does not represent the whole people, nor does the judicial system. That is irrelevant. The question is whether the people, through democratic government, gave its consent to this particular establishment.
The answer is yes—to the defense system, to the judicial system, and to the religious system.
The fact that a particular system is rotten (and what bureaucratic system is not rotten?) does not make it contrary to the people’s will.
Incidentally, is the situation really so terrible? How many women refused a get are there? How many people do not marry through the Rabbinate but would marry in some other Orthodox ceremony?
2. Community life is an excellent thing. Every community had its own authority, and in the event of dispute there were leading sages who decided difficult cases. The problem is a situation of one community with countless authorities. That did not exist in the past.
3. The accusation of leftism is an accusation of irresponsibility.
There is currently a situation that works, even if imperfect and far from it.
Whoever proposes to break the current situation bears the burden of explaining what he expects to happen and why it will happen.
Those who clearly oppose the Rabbinate do not do this, but merely shout about how problematic the current situation is. That is worth nothing without presenting a serious alternative (including on the question, “what will happen regarding matters of personal status?”).

(By mistake I posted this earlier on the previous post.)

The rabbi claimed in the previous post that Rabbi Yosef Colon pointed out a paradox but did not solve it, but in my humble opinion that is not the case.

The rabbi explained well here that the structure of the claim of “ada‘ata de-hachi” operates as an implicit condition that does not require the formal laws of conditions.

If I understood correctly, this means that we decide with certainty and on the level of “we are witnesses” that if, at the time of the sale, we were to raise before the person going up to the Land of Israel the possibility that “he would not settle well there,” and ask him whether he indeed agrees to make the sale on that basis, he would reject the possibility and confirm to us that the sale is conditioned on going up to the Land of Israel. It follows that there is indeed a mechanism of “implicit condition” hovering in the air.
But if he were to reveal to us that he is not interested in the mechanism of condition at all, but rather that he is sure he will go up to the Land of Israel and relies on the percentages supporting that possibility, then we could not construct here an “implicit condition”; at most it would be a “transaction in error,” except that a mistake regarding the future does not undo its validity.

It follows, then, that in the current situation, in which all rabbis never in practice annul kiddushin by means of a claim of “implicit condition,” every woman who becomes betrothed—even though it is revealed and known that she would not agree to become betrothed on condition that her husband beat her, etc.—nevertheless, in the current situation she fully resolves and grants herself for all possibilities, relying on the assumption that the very worst will not happen. If so, in such a case, when you ask the woman herself she will answer you that there is no “implicit condition” here, and it seems to me very difficult to override her view and nevertheless implement here the mechanism of “implicit condition.”

One may add that in the current state of practical halakhah, what the rabbi proposes is seemingly itself a paradox in the opposite direction. For if a woman at the time of kiddushin were to request explicitly to become betrothed on condition that in such extreme cases (not completely defined in advance) the kiddushin would lapse, the Rabbinate would not permit it or at least would object (I do not know how to assess the current situation), whereas when such a case actually arises and a husband beats his wife, we would claim that there is indeed an “implicit condition” here, and only that we did not allow the woman to state it explicitly? In the universe we inhabit, Rabbi Yoel Katan is quite right, and his argument solves the paradox rather than merely pointing to it.

To Mordechai

You did not understand a thing I said.

First of all, I said that it does not seem to me at all that the rabbi tried to present concern for women’s suffering. I do not think anyone cares about anyone. The overwhelming majority of human beings care for their immediate family and that is all. And that too is only because of self-identification of their family with themselves. Until a person cares for someone as he cares for himself, one cannot say he cares for him. What matters more to the rabbi here is the wisdom of the issue (I am not the one to decide whether truth truly matters to him—that God knows). He only pointed out that because of the adoption of what he calls the psychology of all those decisors throughout the generations (and from my perspective their non-use of this mechanism really does require a halakhic explanation and not just psychology, even if that is irrelevant for practical ruling—someone who has reached the point of issuing rulings must do what seems right to him after due consideration, and not fear any group of human beings, however great. But from experience in the Torah world there is much inflation of the notion of greatness. Other than the Ari, the Ramchal, the Vilna Gaon and the like, no one there is Isaac Newton), people suffer for nothing, in his opinion. He is not hiding behind anything. You are the one creating problems in your own head. I have encountered online people who hunt heretics. And when there are none, they manufacture them artificially.

When I said the state is not full of mamzerim, I meant mamzerim from the Diaspora period and from the various exile communities—even from before the establishment of the Chief Rabbinate. I do not know how you understood otherwise. Are you saying all the mamzerim stayed in the Diaspora? It does not seem that the Jewish exiles today are full of mamzerim either. Which families had their world collapse because of such courts? After all, every community had its own teeth with respect to itself, and whoever was a mamzer according to the rabbis of that community could not marry within it. So he had to look for a community in which he would not be considered a mamzer (after all, we are discussing cases of dispute, not agreed-upon cases), unless we are talking about the issue of one rabbi who forbids where another may not permit (and there too there are discussions). I have not studied Kiddushin deeply (I only skimmed page 70a and did not find what you referred to there), but it seems to me they are speaking there of ordinary mamzerim, not mamzerim resulting from halakhic disputes.

Likewise, note carefully that I wrote that you write like a Haredi (because in truth I did not know what you are, and it did not matter to me). There is not room here to elaborate, but know that my attitude toward them is completely justified, at least in principle. In the yeshivot where I grew up, I was educated to honor Torah scholars no matter who they are (one did not even need to mention it; it was absorbed from the atmosphere). But since being exposed to the Haredi world, I learned—through observation and reflection, thank God not on my own flesh—that from them precisely one learns that the concept of “honoring Torah scholars” has not much meaning. It seems that in their eyes anyone whose honor you do not desire is simply not a Torah scholar, or alternatively is wicked. And I did not learn this from the man on the street but precisely from the leaders of the Haredi public. At the time I did not attach much importance to it, until I saw that this evil and pashkevil culture was also adopted by parts of the Religious Zionist public from the Haredim as part of the blessed insistence on keeping Torah and mitzvot. This is not some childish revenge impulse but an understanding that part of Jewish culture is inflated in this area. I am not a halakhic decisor, but it seems to me that even the interpersonal commandments have a threshold beyond which reciprocity is needed (halakhically! I once read that there is no prohibition against shaming a person—“taking him down”—in an argument if he first tried to shame you, and it seems to me that this is so even if you were not actually hurt in practice (about this specific point I am not sure; there it was written that a person is under no halakhic obligation to be among “those who are insulted but do not insult,” and one need not be a doormat, though if so some of the sting of the matter is lost; usually the winner in such an argument was never insulted to begin with). Therefore it seems this means that one may win in this sort of argument). If the honor of the other publics in Israel is not important in the eyes of the Haredim (and they learn this from cheder from a very young age like Hamas children, mutatis mutandis, and in adulthood they are not at all aware of this lack of respect—which of course makes the matter worse), I see no need to maintain reciprocity where there is a real need not to show respect. The Haredim are children of Abraham, Isaac, and Jacob, but one should not have too much pity on one who lacks understanding. Only when they are losing the argument do the Haredim suddenly become Jews whom one must honor and love? In their eyes (unconsciously), you are not really a Jew at all (not to mention a human being), but this is also how they relate among themselves (Lithuanians against Hasidim and both against Sephardim). It is a primitive and childish mentality that replaces arguments with mutual accusations. So I prefer not to discuss this subject at all. But sometimes a rod is for the back of fools, and if you do not insult a Haredi (and not only a Haredi—sometimes also leftists and hardline religious nationalists), he will not respect you; he will not feel that you argued anything at all (like people who, because of deficient taste receptors or deficient interpretation in the brain, if something is not “spicy,” then for them the food has no taste. I have a neighbor who has trouble with smell, and he adds loads of hot spices). So one must know how to use, with proper caution, this tool as well.

By that logic, the moment we decide the opposite, that too will come out consistent. Alternatively, in sales too one could have chosen not to annul the sale, and then there would be no ada‘ata de-hachi there either. If so, you still have not explained the difference between a sale and kiddushin.
In fact, this sort of circular argument does not work in halakhah. We do not assume the halakhah; rather, we determine it according to our understanding and then examine whether it holds up or not. What I argued is that this is how it ought to be determined, and then it will also work. This is what I called an anti-paradox (see my article on paradox and anti-paradox in halakhah).

A. But at any rate, after the fact, why is that not an argument? Even though that indeed does not contradict the need to seek an explanation of why this is so.

B. Perhaps originally it began because there truly was “tav le-meitav tan du,” but in practice today it can never change because of my idea.

What I am claiming is simply that under today’s norms, where marriage is half-Catholic and the husband can abuse and refuse, any consent to kiddushin contains not the slightest trace of an “implicit condition.”

What the rabbi proposes is to overturn the table and determine that there is an “implicit condition” here. The proposal is equivalent to another proposal—that all those who arrange kiddushin should perform kiddushin with an explicit condition and without the formal laws of conditions. And if someone forgets, that would already be tied to the sugya of scribal error liability.
And just as that is impractical, so too this is impractical, for whatever reason.

And when the rabbi asks why it started that way—that is only a meta-halakhic question.
Perhaps Hazal believed it was permitted to beat a woman? Perhaps Hazal did not want marriages to be reversible? And the imagination is still good to us.

Not correct. If the only problem is that this is how it started, but it is agreed that it is not good to leave it this way, then it should be changed and then that too will be fine. At most, you could say that the change should be announced and applied to those who become betrothed from the time of the announcement onward. In any event, this does not explain why they did not do so.
Even on the substantive point, in my opinion this is incorrect, because there were cases in which kiddushin was annulled despite this analysis, so it is not true that a woman must assume it will never be annulled. The fact is that Rishonim and Acharonim do apply this implicit condition, despite your argument.
[I do not have time right now to enter into your description above of how this is presented to the woman, but I sense that I disagree with that too. And the proof is that nevertheless there were those who applied this mechanism in various cases. That both proves you are not right and in practice generates the refutation of your argument, as above.]

Following the exchange here regarding the Beit HaLevi’s words:

https://mikyab.net/%D7%A9%D7%95%D7%AA/%D7%90%D7%99%D7%9A-%D7%99%D7%A9-%D7%97%D7%96%D7%A7%D7%AA-%D7%98%D7%91-%D7%9C%D7%9E%D7%99%D7%AA%D7%91/

You wrote there in note no. 5: “I suggested conducting an orderly survey by a reliable institute and examining women’s views prior to kiddushin—what they are willing and expect to accept and what not. What prices they are willing to pay for the ‘tan du’ and what not. I assume the findings will differ significantly from what is accepted in the halakhic literature written in generations when women’s demands were lower.”

It seems to me that according to the Beit HaLevi’s words, such a survey would not be enough. For even if we find that the presumption of “tan du” has changed, we do not determine annulment of kiddushin according to the prevailing position, but according to the minority. So long as there is a minority that would agree to remain married under such conditions, there is again no “obvious presumption,” and it is impossible to annul the kiddushin.

The calculation thus becomes complicated. We need to determine where the watershed line was in the time of Hazal—when the woman’s suffering was so great that kiddushin could be annulled—and examine what percentage of women would still continue to live with the husband in such a situation. That figure can then be translated to our time, and one can determine that in a case where the percentage willing to continue the marriage is equal to or lower than that, the kiddushin may be annulled on the claim of “ada‘ata de-hachi.” Am I mistaken?

With God’s help, 2 Tammuz 5778

At first glance the question is not understandable. Abaye was speaking about annulling the giving of money given to the priestly watch, where if the money does not “atone halfway” then the giver gains no benefit at all from what he gave (and likewise in the objections from one who set aside a sin-offering or guilt-offering, the issue is a case where there was no benefit at all from the setting aside). By contrast, in a case where she fell to yibbum before a repulsive leprous man, she did benefit from having been happily married to his brother.

Shall you say that falling before a repulsive leprous man is so terrible a disaster that because of it she “regrets the earlier times” and retroactively regrets the years she lived “with joy and gladness of heart” with his brother?—That is implausible, for a repulsive leprous man is among those of whom it is said in Ketubot, “he shall divorce and give the ketubbah,” and certainly there is no scenario in which the court would require her to perform yibbum with such a man; without doubt they would compel the repulsive leprous yavam to release her by chalitzah. So what is the regret about?

It seems to me that the questioner understood that, since the purpose of marriage is to bring children into the world, then if the yavam cannot establish offspring, the marriage was of no benefit. To this the Gemara answers that marriage has intrinsic value in life together, as Resh Lakish says: “It is better to dwell as two,” and therefore the woman does not regret the marriage even though the chances of having offspring from her husband have vanished.

With blessings, Sh.Z. Lewinger

It is worth noting that Resh Lakish’s words “tav le-meitav tan du” were originally said regarding a case in which a man had a defect that was healed—that a woman is not particular about a defect that has been corrected because of “tav le-meitav”; and likewise regarding a man and woman who had quarreled, where we do not say that the get is a benefit for her, since one can say that the woman has not despaired of the possibility of reconciling the conflict.

“Tav le-meitav tan du” means that a woman sees great value in companionship, and relies more than the man on a repair that has already been made or on the possibility of a future repair. I cited the sources in one of my responses to Rabbi Michael Abraham’s article, “A Gentile Whom Halakhah Did Not Recognize,” on the “Mussaf Shabbat – Makor Rishon” website.

The true solution to

The true solution to the problem of severe conflict in the divorce process is the understanding that the process need not be traumatic for either spouse or for their children.

Even when a woman wants a divorce (or vice versa), she must understand that it is forbidden to cut the children off from their father, and forbidden to bring financial ruin upon the father in a way that will prevent him from any possibility of a normal life and a “second chapter.” When it is common to demand child-support payments beyond the father’s financial means (apart from “exceptional expenses” every other day), and to deny him contact with his children under all sorts of pretexts—then people should not be surprised if there are those who “dig in their heels,” rightly or wrongly.

One must find together a way for both spouses to continue to live with dignity and maintain a good relationship with the children, and to reach fair arrangements that allow both parents and their children to live in peace and dignity—and this is certainly possible. If they cannot manage on their own, mutual friends or professional mediators can be brought in, and a win-win arrangement can be reached.

With blessings, Sh.Z. Lewinger

This is not a simple question. First, because on their face the Beit HaLevi’s own words do not seem correct to me. Second, one can compare this to annulling sales in acquisitions, which have not changed all that much from their times to ours, and that is supposed to be similar to annulling kiddushin (how hard is it for you to remain in Babylonia without the field and house—but with the money received for them, of course—compared with how hard it is for a woman to live her whole life with an abusive husband or something else).
In the end, from time immemorial the sages did not go by surveys or by a defined line, but by intuition. However, as I understand it, today, because of the prevailing fears of the judges that it is forbidden to depart from precedents, if a survey were conducted that substantiated the general intuition that there has been a change in women’s will, this could help the judges rely on it without feeling that they are changing the halakhah or departing from the policy of their predecessors. So there is no question here of defining a formal line, because such a line cannot be defined. It is an aid in forming the judges’ intuition as to when and whether it is justified to annul kiddushin.
In any event, such a survey clearly ought to be conducted, and once there are data, one can argue about their meaning. At present everything is in a fog and people act according to intuitions (which in my opinion are sufficiently solid).

A possible suggestion, like others (for example, that this itself is the Gemara’s answer—that she had good years, and therefore yibbum from a leprous man is worth it to her. You are already importing this into the initial assumption, and there is no necessity for that). In any case, it is clear that quite a few decisors and commentators learned not like you.

He proves that regarding a repulsive leprous man and the like, Hazal explicitly state that they compel him to divorce, and they explicitly said of such a case, “no one lives with a snake in one basket.” Even so, since there are women who are willing to live with a husband who has a major defect, she must stipulate explicitly; and so long as she did not stipulate, the act stands.
From his words emerges a simple solution: if she stipulates that in such-and-such situations the kiddushin will lapse, the condition will be effective according to the Beit HaLevi. But on this many decisors disagree, holding that “there is no condition in marriage.”

With blessings, Sh.Z. Lewinger

And if we are speaking of surveys, one could check in hospitals how many women abandon their husbands when they become nursing-care patients, and check with the police or prison service how many women abandon husbands who are criminals imprisoned for many years. I would not be surprised if we discover that in many cases love “distorts the line,” and that there are quite a few women who remain faithful to their husbands even in very difficult situations.

According to the Beit Yosef, one excommunicates the assailant. According to the Rema (in the name of Maharam of Rothenburg), one cuts off his hands. Under state law too there are severe means of imprisonment and restraining orders. And the police and criminal courts treat domestic violence with great severity, so the abusive husband has an interest in releasing his wife with a get in order to free himself from punishment.
All this, of course, concerns genuine complaints. In the many cases of unfounded or false complaints—just as there is no ground for punishment, so too there is no place for coercing a get or annulling kiddushin.

With blessings, Sh.Z. Lewinger

Let the rabbi not be angry with me, for it is Torah and I need to learn.

The rabbi asks why they do not change it, and that is certainly an excellent question, but I do not understand of whom he is asking. If about the time of the Gemara, then the answer is simple: in most cases they did not need to annul the kiddushin, because they would coerce a get or proper behavior.
But what about rare cases, such as when the husband fled close to the wedding or not close to it? In situations where there is a clear presumption, even in the time of the Gemara they would annul the kiddushin.

And if the rabbi asks with respect to our time why they do not annul—or at least declare annulment for kiddushin performed from now on—then I have a much better question: why do they not establish an explicit condition in marriage that in extreme cases the kiddushin will lapse? As is known, the great sages of the generations opposed this; however, in those controversies the issue was not conditions for extreme cases, and the opposition was logical, whereas in extreme cases there is no reason for opposition. This is what Rabbi Berkovits of blessed memory argued in his proposal, and he received the principled agreement of his teacher Rabbi Weinberg—but look what came of it: nothing.

Therefore I did not understand how you managed to refute my argument: that where classical halakhah does not permit annulment, a lone rabbi cannot create it ex nihilo, because it is clear that the woman did not limit her will to be married by that “implicit condition” at the time of the kiddushin itself.

And if you mean those cases in which they did permit it, then I did not understand the question at all, for in every case in which they did permit it, we should also learn for our own case to permit in other similar cases, and so by the same token, in those cases this problem does not exist—since one can assume that the woman herself was not sure at the time of kiddushin that they would not permit it. Whereas with respect to the cases they did not permit throughout the generations, the claim returns that in the current state of affairs one cannot discuss an “implicit condition” at all.

Therefore, as was written in the following comment, in every place or generation where they could use halakhic mechanisms regarding beatings and the like, they used them properly, and therefore there was no reason for a woman to request annulment of kiddushin, since the kiddushin until the time of the beating benefitted her, and from that point onward they would coerce a get or proper behavior. Rather, little by little we have collapsed into a black hole with no effective coercion of gittin at all. Therefore the rabbi asks that from now on a new obvious presumption of “ada‘ata de-hachi” should arise—that a woman would not become betrothed into such a situation. But as I argued, we have collapsed into a black hole from which there is no escape except by a general declaration from now on, because there is no mechanism of “implicit condition” here.

This is somewhat similar to the Gemara in Gittin that one who sells a field during Jubilee years sells only the produce rights, because he knows the Jubilee will remove it from him. And even though in principle he has the ability to make an absolute sale with the Torah’s power of expropriation, nevertheless in the second Jubilee we judge his act according to the legal knowledge that had accumulated for him.

Thanks in advance if the rabbi responds with an explanation.

Greetings.
1. The question is not whether one must or need not annul (not “uproot”), but whether they are void. If they are void, then they should be annulled even if the husband gives a get.
2. You did not answer my question why they do not make such a declaration.
3. In general, halakhah does not work the way you describe. The woman does not assume what the court will do and determine her position accordingly. First we decide what a woman’s view is, and on that basis the court’s decision is determined.
Beyond that, if the truth is that the kiddushin are void, one does not need a beit din for this at all. As I explained, this is not a court act at all. So there is no connection between what the court does in practice and the woman’s view. If she does not want to become betrothed ada‘ata de-hachi, then she is not betrothed, even if the court does not recognize it.
Therefore it works out either way: if you follow practical reality, women do not know exactly what the court does or does not do, and as I explained, the woman’s view determines the court’s decisions, not the reverse. And if you follow the truth, then the kiddushin are void even without the court, and again it makes no practical difference what the court does.
The man who sold his property to go up to the Land of Israel did not first check whether courts recognize such a ground or not. His intention was what it was, and therefore the courts determined that the sale was void. Maharam of Rothenburg too, who favored annulling kiddushin for a husband/yavam who had apostatized, did not check what women knew about court actions or what the courts had actually done until his time. On the contrary, in practice he himself hesitated to rule that way, and nevertheless wrote that reasoning as a correct one, and it did not trouble him that courts do not act that way.
Beyond that, if you are already taking into account what the court does, there is an argument (which was also raised here, and I saw that you yourself write it at the end of your message) that because courts today do not truly coerce a get, women do not rely on coercion of a get, and therefore do not consent at all to become betrothed if the husband will abuse them. So arguments based on court behavior can cut in every direction.

More news on the matter:
https://www.srugim.co.il/261238-%D7%91%D7%99%D7%AA-%D7%94%D7%93%D7%99%D7%9F-%D7%94%D7%A8%D7%91%D7%A0%D7%99-%D7%94%D7%A4%D7%A7%D7%99%D7%A2-%D7%90%D7%AA-%D7%A7%D7%99%D7%93%D7%95%D7%A9%D7%99-%D7%A1%D7%A8%D7%91%D7%9F-%D7%94%D7%92%D7%98

Today it was published that the rabbinical court in Haifa annulled the kiddushin of a get-refuser:
https://www.srugim.co.il/261238-%D7%91%D7%99%D7%AA-%D7%94%D7%93%D7%99%D7%9F-%D7%94%D7%A8%D7%91%D7%A0%D7%99-%D7%94%D7%A4%D7%A7%D7%99%D7%A2-%D7%90%D7%AA-%D7%A7%D7%99%D7%93%D7%95%D7%A9%D7%99-%D7%A1%D7%A8%D7%91%D7%9F-%D7%94%D7%92%D7%98
[Now I see that Oren already posted the link above.]
The ruling remains sealed, presumably because of the sensitivity of the matter.
I know this case closely, almost from the beginning (the recalcitrant husband studied with me at Bar-Ilan and I know his wife as well, and I was somewhat involved in the matter). In my opinion that case is really not a simple case for annulling kiddushin (much less simple than my case, over which the rabbinical courts and the Rabbinate in general were outraged); and if the court did this even in such a case, it means there is reward for our labor.
I have no doubt that my own ruling (and of course also that of Rabbi Sperber after us) had a real influence on the system of rabbinical courts, and no doubt it will continue to grow. One can already see this influence in several areas today, such as activism in coercion and shaming, which used not to be practiced (for fear of a coerced get). And now also annulment of kiddushin.
I was told by email that one of the judges there had previously spoken sharply against annulments of kiddushin, and now did it himself. I was never impressed by such criticisms, because it is clear to me that this is a correct and valid mechanism (as I proved in my ruling), and it is only a matter of internalization and digestion. The conservative instinct operates as it always does, and this will pass. And indeed, it apparently is passing.
My conclusion is that when there is competition and criticism, every system improves—even a problematic system like the Rabbinate’s courts. It seems to me that the criticism I received (also here on the site) that I am dismantling the Rabbinate system and the institution of marriage now looks somewhat different. It is now clear that I am only improving it (I allow myself to guess that without me and without my fellow “anarchists,” this would not have happened). Though I must say I am somewhat torn about this. On the one hand, it improves the rulings of the rabbinical courts and saves miserable women from their grim fate, and on the other hand it may save the system and cause it to survive, heaven forbid.

Greetings to Rabbi Michael,
Have you considered the Rogatchover’s view that ada‘ata de-hachi takes effect only from kiddushin and not from marriage? His ruling appears well grounded and also solves the “paradox” with which you began your remarks.

A sealed ruling is not customary in the rabbinical court system, and it is worth waiting for publication of the ruling and its reasons. It may be that they found
an invalidity in the act of kiddushin or in the testimony, or information concealed at the time of kiddushin, in which there are precedents for annulling kiddushin.

With blessings, Sh.Z. Lewinger

Uri, I did not understand the claim.

Now I suddenly remembered that, at the request of the woman’s legal advocate, I sent the beit din a halakhic opinion regarding annulling the kiddushin in this case (I am not posting it here because of details that violate privacy). If so, perhaps I even had a direct influence here.

Although you declare that you know the case and I do not know it at all (beyond what was published in the media), this ruling seems to me like a self-contradictory act, and I am surprised you are waving it around at all. It raises several difficult questions.
1) Why is the ruling sealed? What is there to hide? I understand the desire not to harm privacy, but the reasons for the ruling can be published with identifying details omitted, and such things are done every day.
2) Why was it necessary to impose sanctions on the recalcitrant husband and pursue him to the ends of the earth in high-budget, breathtaking Hollywood-style operations if his kiddushin were void?
3) And if indeed the ruling is well founded, perhaps that proves there is no need for those private “courts”? The fact is that when it can, the Rabbinate too knows how to annul kiddushin, and all the “hue and cry” against the Rabbinate stems from ulterior motives? (Your final sentence hints—more than hints—in that direction.)
4) Indeed, you address the previous question indirectly and attribute the “change” in the Rabbinate’s position to your actions and the actions of your fellow anarchists (a term you put in quotation marks; I forgo the quotation marks…). To that one may say: “And if it had not rained in Waterloo”…?
5) And suppose you are right—how do you know this is an “improvement” in the courts’ rulings? Perhaps it is a deterioration indicating surrender to populist moods backed by “anarchist rabbis”? (See above question 2.)
6) Competition in this case may be a source of tears for generations. The private “courts” will need a livelihood. Is what we yearn for marketing campaigns such as “With us, kiddushin is annulled in five minutes”? “With us, a get is coerced within two minutes, sensitively and firmly”? Just last week revelations were published about the nature of Tzohar’s competitive kashrut organization, and enough said. Sorry, I am not a Torah scholar like you (in fact, not a Torah scholar at all), but in competition I do understand a bit more than you. Competitive regulation is a contradiction in terms!

Well, these things truly are not worth a response.
Only regarding what you called “competitive regulation”: if, as you testify, you understand competition, it is evident that you understand nothing at all about regulation. One of the main and inherent problems with the Rabbinate is that the Rabbinate is not only a regulator but also a competitor in the field (and in fact, essentially it is not a regulator at all, but only a competitor in the field).

Thank you for responding to things that are not worth a response… though in my humble opinion there are more respectable ways of admitting that you have no answers.

As for regulation, I did not purchase my expertise in the matter from you, thank God…

Perhaps I sound like counsel for the Rabbinate—but no. Absolutely not. Did I claim that the Rabbinate is perfection itself? Do I have no criticism of its distorted regulatory structure (and that of several other regulatory bodies in the Israeli economy, such as the Commissioner of the Capital Market, the Antitrust Commissioner, the Supervisor of Banks, and the list is long)?

But what alternative are you proposing? Competition among private batei din, which will be tainted by conflicts of interest graver still because of their need to make a living (without government funding)? And after the Rabbinate is dismantled (as you fantasize)—how will you prevent the establishment of private Reform and Conservative “courts” that will arrange “gittin” as they please in exchange for a handful of dollars? Ironically and absurdly, the Reform and Conservative movements in the U.S. have already established “kashrut bodies” granting “certifications” from “rabbis” who eat carrion and trefah, after discovering the potential in the market of Muslim halal consumers who are not expert in the distinctions. (For those who do not know, the kosher meat market in the U.S. manages to survive economically mainly because of the demand from Muslim consumers.) Is that what you want to establish in Israel? And you call this expertise in regulation? (See Tzohar kashrut.) Embarrassing.

Indeed, the Rabbinate suffers from serious structural flaws, some dating back to the British Mandate and to Rabbi Kook zt”l’s naïveté. But it is by no means the clearest and worst example. Clearer examples of regulators who are worse than “competitors in the field” are the Bar Association and the Council of Accountants, which are professional guilds. Yet even their harshest critics (myself, for example) do not think the alternative is private associations and councils and competitive regulation, but rather the elimination of their inherent conflict of interest. The ways to achieve this goal are not a matter for an internet comment (a “talkback,” in the foreign tongue). What I can add is that there is no universally agreed model. There are many models, each with its own advantages and disadvantages, as is the way of the world.

According to the Rogatchover, the claim of “ada‘ata de-hachi” is relevant only to a betrothed woman and not to a married woman, “because marriage is like the essence of the matter itself, and no presumption of ada‘ata at all is effective in this, etc.; but a betrothed woman involves a legal status of benefit” (Tzafnat Pa‘aneach on Bava Kamma 110b). First, this could explain the question with which you opened—namely, how there can exist a mechanism of “ada‘ata de-hachi” that is nevertheless not used (simply because today there are no women who are betrothed but not married. Admittedly, perhaps only the case in which you annulled kiddushin for a woman who in practice never lived with her husband can fit this claim, since then there truly never was the “essence of the matter”). Second, I wanted to ask whether in all those cases in which you were involved, the Rogatchover’s approach was taken into account but rejected, or whether it was not addressed at all (and in my opinion it needs to be accounted for, because it is quite persuasive).