A case discussed in the High Court in recent years on the question of whether a woman who cheated on her husband should face financial sanctions.
The rabbinical court ruled that she should; they appealed to the Supreme Court, which upheld the decision; they appealed again, and yesterday the High Court overturned the decision and announced that “sexual infidelity does not constitute a circumstance that can retroactively negate rights that had already crystallized.”

The reasoning of the Great Rabbinical Court was that the act of adultery negated the husband’s intent to share with his wife property registered in his name from before the marriage, since had he known she would cheat on him, he would not have intended from the outset to share the property with her.

For example:
https://m.calcalist.co.il/Article.aspx?guid=39108870

They’re claiming that the husband’s intent before marriage was conditioned on her behavior after marriage? That’s very amusing, since the rabbinical courts consistently oppose this very type of reasoning when a woman claims that on that basis she would never have consented to the marriage in the first place (for example, in the case of an abusive husband). Does the court recommend doing something similar to a husband who cheated on his wife?
Beyond that, I think the law in the State of Israel requires marital property sharing, so this has nothing to do with the husband’s intentions. True, here we’re talking about the husband’s property from before the marriage, and I don’t know what the law is regarding that.
In general, I don’t see how one can impair the woman’s financial rights unless this is anchored in a contract between them. A sanction can be imposed by virtue of law or by virtue of a contract, but not by virtue of a decision of this or that rabbinical court.

With God’s help, eve of the holy Sabbath, “How goodly are your tents, O Jacob,” 5781

A spouse’s betrayal is a material breach of the marriage agreement. Is it conceivable that someone who cheated should stretch out his or her hand and take for himself or herself property that belonged to the betrayed spouse before the marriage? You cheated and also inherited?

Best regards, Nehorai Shraga Agami-Psissovitch

According to the “logic” of the “High Court adultery case,” one would have to say that even a husband who tried to murder his wife would get half of the apartment she owned before their marriage. After all, a partnership was created with the marriage, and no future crime can retroactively cancel an already vested right? Twisted…

In astonishment, 5781

Here this is a special case of an external asset from before the wedding that belonged to the husband, so there is no sharing in it unless the husband wanted to share that specific asset. That is, it’s not part of any mutual contract, but rather the question is whether the husband gave a gift (“specific sharing”), in which case it does not lapse as a result of adultery; or whether he didn’t give it at all (unrelated to the adultery); or whether he did give it, but on condition that there would be no fundamental sabotage of the relationship, such as adultery; or whether he made a grant that only materializes at the moment the marriage is dissolved, meaning this was only an indication of intent to give, and so its conditions depend on the information available at the time of dissolution (this is the view of one of the judges, but the High Court ruled generally that the grant materializes during the marriage and not at the moment of dissolution). And in a case of doubt, one does not remove property from the husband’s possession.

Among the judges there is a view that specific intent to share was not proven at all, or was proven only to the extent of 20%, or that there was sharing but it was implicitly conditioned on the absence of adultery. The question whether there was intent to share is seemingly factual, and therefore ordinarily there is no appellate instance over it, but the tests by which one examines intent to share are legal tests, and on that point the High Court disqualified the method of testing and lowered the evidentiary threshold that the rabbinical court had set.

In general, treating every gift between people as something hanging on future circumstances and guesses about the donor’s inclinations is of course problematic from the standpoint of stability in the social order. Therefore, one usually requires that a suspensive condition be explicit. Or else that the implicit canceling condition occurred before the moment of sharing, in which case the cancellation is both more theoretically solid and practically rarer (see section 50 in Hayut’s ruling).
Therefore the issue is whether every specific sharing that occurred and became established between spouses is seen as sharing that is implicitly conditioned and dependent on fidelity. And on this the High Court ruled that it is not (except in extreme cases).

Whether the laws of implicit conditions are a matter of fact (the court got to the bottom of what this particular couple had in mind) or a legal rule—this is something that has not been entirely clarified (apparently this is the basis of the dispute between Justice Stein, who sees this as an estimation of intent and therefore assesses that the owner of the property here did indeed condition it in his heart, and the others, who see it as a legal rule. See especially sections 16-17-18 in Stein. At the moment, everything Stein wrote convinced me, if you look there). In the full rulings there are further details and procedural questions.

After our High Court has informed us that the adulterous woman has the right to inherit the parents of her betrayed husband, the question arises: why shouldn’t the adulterer also take a share? He is, after all, actually in a relationship with the betrayed man’s wife and thereby constitutes a “third side” in the triangle—so why is he not also entitled to a third of the inheritance from the betrayed husband’s parents?

Best regards, Bre’aleh Bereshaovsky, Four Lands Rabbinical Court, Jordan Square

There’s a Pavlovian reflex here against the High Court. Anyone interested in “meeting of the minds,” presumptions, and other tar-coated nonsense—good for him. When you grow up, you understand that “truth” gets thrown to the ground, and what matters is the stability of social arrangements. So you need to set sharp, smooth rules, and anyone who wants to depart from them is welcome to make an explicit agreement. [In my view, legally speaking Stein was right, but as a legislator Hayut was right. And see further.]

With God’s help, 19 Tammuz 5781

To Sand’—greetings,

And from the very place you came from—the importance of stability in social arrangements—it follows that someone who severely harms the social arrangement called “marriage” by betraying his or her spouse should not merit inheriting from the injured party’s parents. “You cheated and also inherited?”

And I already raised above the “Moshe-Isakov test,” where I asked: would the High Court justices also grant a share in the inheritance of the battered woman’s parents to someone who beat his wife nearly to death?

Best regards, see above

Look. The idea of property rights as some kind of objective thing seems to me utter nonsense. So too the detached notion that “the burden of proof is on the one seeking to take from another” (terms like “burden of proof” and “default” were apparently invented for the benefit of companies that manufacture painkillers). And also the prevailing view that treats bodily monogamy as a main component of a solid couple/family relationship (“one of your craziest views,” in the words of my wife, may she live long).
As far as I’m concerned, what there should be is agreements for the sake of stability and general happiness, and the reason agreements are enforced is also only because of stability, and certainly not because of some far-fetched notion that there is an objective value in keeping agreements and the like. Therefore, what is in the noble hearts of the parties interests me less than a shriveled cucumber that rotted in my fridge. That’s where I start.

Now the question is what to do when there is no written agreement. When there is no agreement, you should simplify the legislative system and not try to dive into the depths of each person’s feelings. And why? Because it’s not relevant. In almost every gift/contract one can think of canceling conditions—that this person relied on the other to act or continue acting in good faith and do this and that and so on—therefore this is bad and harmful, and as a dictator-legislator I would not do it. Very simple.

There is an assumption that spouses share assets with each other, even if they were accumulated before the wedding (that is the doctrine of specific sharing around which all the rulings revolve). Now, for a judge to sit and estimate in his mind what this couple’s views are based on their way of life and conduct and what indications there are of certain views and certain intentions (as Stein says)—to me that is a very harmful and bad idea. There are clear-cut cases in which the estimate is very obvious (as presented there in the rulings), and then one does not really need the judge’s learned assessments.

What do you think about someone who gave a gift to his friend and then his friend beat him nearly to death—does the gift become void? In my opinion Mr. Isakov too would get what is his (though if they issue a restraining order keeping his head away from his neck I certainly won’t be sorry).

The whole idea of contracts and agreements is based on nothing.
And the word betrayal is unclear—what exactly does it describe? Was the husband so naive that he thought she wouldn’t sleep with someone else? That’s the husband’s problem.
Likewise the husband’s naivety in agreeing to share his money with her.
You pay for stupidity. He should have made it a condition in a contract that if she cheated on him she would get nothing.
Since he didn’t do that, he should pay.

All this from the common man’s perspective. From the Torah’s perspective: she shall surely be put to death.

Decisor, if you were the chief legislator and the Supreme Court justice, would you not enforce compliance with contracts and agreements?

It is not the role of a court to interfere in people’s desires and psychological whims.
A contract is not a legal matter but a psychological one: one day a person wants this, and another day he changes his mind.

In the end, by nature, might makes right. And if the court intervenes, it does so by virtue of its own violence. And that happens not out of justice but because it represents people of great wealth who have an enormous interest—rooted in the drive of envy and accumulation—in contracts and agreements not being breached. The service it provides the citizen is incidental.

Do you think contracts should be enforced (even without the Torah), yes or no?

What does the Torah have to do with contracts?
I would cancel all validity of future commitments and say that it is unnatural for a person to commit himself to the future, because in the future his mind can change.

What is forbidden is deception. And when a person commits himself regarding the future, there is deception in that, because he does not know what tomorrow will bring. Contracts involve a violation of “do not wrong one another.”

I don’t understand you. You wouldn’t enforce future contracts?

With God’s help, 19 Tammuz 5781

Even in an explicit contract between spouses requiring partnership even in assets that came to one of them from elsewhere—there is a “clear presumption” that they did not write this to each other on the understanding that one would harm the other and then inherit. But in the High Court case under discussion, it is not speaking at all of an explicit contract between them, but of partnership arising by force of the Financial Property Distribution Law, which ostensibly creates an “implicit agreement”; and in that case all the more so there is a “clear presumption” that they did not intend to give inheritance rights in the injured party’s parents to someone who gravely harmed him or her.

Best regards, see above

Contracts should not be enforced. Justice should be pursued.

See above, why specifically with spouses? In every contract in the world you can add clear presumptions.

Decisor, know that I’m one of your biggest admirers here, but here I don’t understand what you’re saying. What does it mean to pursue justice? They made a deal: take a crate of tomatoes, and in return drive my sister to school all week. Now one guy doesn’t want to give the crate, or the recipient got the crate but refuses to drive the sister. What here is “enforcing a contract” and what here is “pursuing justice”?

You look at things robotically; that’s why you use the word contract at all—this invented fake of a collection of words that supposedly expresses something in reality, when in fact it expresses nothing human.

To pursue justice means to investigate why that person agreed to give him the crate and asked what he asked, and why the other took the crate and said he would do what he said he would do, and why in the end he did not do it.

To enforce a contract means not to ask any questions of why, only questions of what did or did not happen, and then the remedy accordingly. A technical, cruel act devoid of all humanity. Done in the name of the enormous importance of the sanctity of contracts and preserving public order (translation of public order: preserving capital in the hands of capitalists).

Investigate, and what will you find? That one of them changed his mind for all kinds of reasons—for example, he found a better deal, or laziness got the better of him.

After all, the moment before the contract both sides want there to be a reliable enforcement system so they can make commitments (if there is no third party that enforces, then you need to provide other guarantees, and that’s a serious burden). You need to enforce the contract today so that people will have the option of making contracts conveniently tomorrow.

With God’s help, 19 Tammuz 5781

To Sand’—greetings.

Even in partnership agreements, a “clear presumption” has significance if one of the partners grossly breaches his obligation toward his partner—for example, if it turns out that he spied and passed the secrets of the company in which he was a partner to its competitors, thereby causing it enormous damage. Is it conceivable that he could still demand his share in the profits?

But in a partnership between spouses, they share far beyond the spouses’ mutual investment in generating the joint income (where one can say that both were partners in production, since the wife’s occupation with housework and caring for the children helped the husband free himself to make profits). Here the spouses also share each other’s inheritance from their parents, and that belongs only by virtue of the love between them, which makes them each other’s “close kin.” Is it conceivable that one who cheated would continue to be considered the betrayed person’s “close kin”?

Do the parents of the betrayed spouse want to bequeath their estate to the son- or daughter-in-law who betrayed their child?

In astonishment, see above

He is a partner in the profits, and for the damages he will compensate.
The enormous difference is that with spouses, in most of humanity today, that is a very (very very) clear presumption?
If the asset came from an inheritance from the parents, or if he found an abandoned apartment at a market stall, there is of course no difference.

“After all, the moment before the contract both sides want…”
What both sides want does not matter. What matters is what is just.
Even the slave who wants to remain unfree has his ear pierced.

And you think that with your approach you would maximize the total happiness in society over time, or do such trifles not trouble you in the race toward “justice”?

Whoever wants to maximize general happiness should invent a machine that injects happiness-inducing drugs and hook all human beings up to it.

After all, the slave himself says: “I love my master, my wife, and my children; I will not go out free.”

From this it seems that according to the Torah, being free and not a slave is more important than merely being happy and doing what one loves.

It is forbidden to take a loan with interest, even though both sides want it…

Many contracts are signed when one side is strong and the other weak and is essentially exploited. The main beneficiaries of contracts are the wealthy.

You can impose regulation on contracts (just as there is a minimum wage in an employment contract). But from here to refraining from enforcing contracts pending an individualized inquiry into every possible excuse in the world—the road is long.

With God’s help, 19 Tammuz 5781

The majority justices of the High Court are not interested at all in the “marriage contract,” in which there is no contractual undertaking whatsoever to bequeath parental inheritance to a spouse who cheated… It would be interesting to see the reaction of the bride and groom if they were asked under the wedding canopy whether they agree to that 🙂

The High Court justices (in the ironic sense) are following their own approach from 2013, when they innovated that adultery is not considered a breach of the marriage contract, and therefore one cannot demand damages from the adulterer or adulteress. See the article “The Tort of Negligence Is Not the Third Passenger,” on attorney Elinor Libovitz’s website.

“The normal voice” in the legal system was represented (as in other cases) by Family Court Judge Assaf Zaguri in Tiberias (today deputy president of the Family Court in Nazareth), who ruled in 2011 that a damages claim for betrayal of a spouse should not be dismissed outright. His ruling is brought in the article “A Tort Claim for Betrayal,” on attorney Karni Shalev’s website.

Naturally, the Supreme Court’s 2018 ruling put an end to monetary sanctions against adulterers in the civil courts, and now they have decided to impose the law of Sodom on the rabbinical courts as well. Adultery, according to the Supreme Court justices, is an exercise of “the adulterer’s right over his or her own body” 🙂

With disgust and revulsion, Amiyoz Yaron Shnitzler

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“The normal voice” in the legal system was represented…

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Naturally, the Supreme Court’s 2013 ruling put an end…

It seems there is a bit of misunderstanding here.
The High Court justices did not issue a ruling based on existing law.
They legislated a new law under which the default is that cheating is permitted and carries no sanctions.
This is legislation, not adjudication.