Volume 19 Number 83
Produced: Thu Jun 1 23:13:06 1995
Subjects Discussed In This Issue:
mail-jewish Vol. 19 #76 Digest
[Zishe Waxman]
Marriages of Minor Daughters
[Yosef Bechhofer]
Marrying off a minor daughter
[Ari Shapiro]
Marrying off one's daughter
[Israel Botnick]
Minor Marriages
[Israel Botnick]
Witnesses for Marriage
[Heather Luntz]
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From: <waxman@...> (Zishe Waxman)
Date: Wed, 31 May 1995 23:17:11 EDT
Subject: RE: mail-jewish Vol. 19 #76 Digest
With respect to the problem of the father marrying off his minor
daughter, a number of posters suggested that if all the rabbonim and
rabbinical courts were to agree that this were no longer to be
considered a valid option, the problem would be solved. The reason is
that since, "kol hamehades, adata d'rabonon mekadesh" (all of our
marriages are contingent on rabbinical approval since we say in the
marriage ceremony "K'das Moshe v'Yisrael"), the rabbinic declaration
would make it obvious that such a kiddushin were, in fact, NOT kedas
Moshe v'Yisrael.
The problem is, however, that when someone is mekadesh WITH THAT
FORMULA, then the mekadesh makes his kiddushin subject to rabbinic
"approval". But what if he omitted the formula, perhaps we would say
that there was an umdena (presumption) that he still intended to be
mekadesh in compliance with rabbinic will. But, perhaps, again,
not. Moreover, what if he explicitly states at the time of the kiddushin
that he wants the marriage to work, EVEN IF IT DOES NOT MEET with
rabbinic approval. Presumably, there would be kiddushin d'oraysa
(especially if the maysa (act) of kiddushin were a d'oraysa act).
Zishe Waxman
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From: <sbechhof@...> (Yosef Bechhofer)
Date: Mon, 29 May 1995 23:54:14 -0500 (CDT)
Subject: Re: Marriages of Minor Daughters
[Sorry for the delay in this article going out, I thought I had already
sent it out, but then I see it again in my mbox and do not see it
quickly checking the issues. Mod.]
>From Akiva Miller's description of the issue:
> Whereas normally a woman can be married only with her consent, the
> Torah gives fathers the ability to marry off their minor
> daughters. Reports are that at least two men (I use the term loosely)
> have actually done this. They married their daughters to certain men,
> in the presence of witnesses as required, but are refusing to divulge
> the names of those men. This gives the daughter the status of being
> married, without knowing who the husband is, and therefore having
> absolutely no hope of ever marrying anyone else.
For the record, I would like to state clearly and categorically
that, IMHO, there is an extra special place in Gehinnom (I leave it for
our Moderator to decide whether that term may be translated precisely on
MJ) [I'll guess that most people know and for those who don't, drop me a
line. Mod] for fathers so evil as to make a mockery of Torah and engage
in such nefarious practices. Besides the sins vis a vis G-d and one's
own flesh and blood involved, the Chillul Hashem (desecration of the
Divine Name) is so extraordinary that it is clear to me that these men
are Rodfim (Pursuers who endanger others) of all of Orthodoxy!!
For the moment, though, I'm going to forgo comment on Akiva's
suggestion that the witnesses of such marriages are invalid.
Rather, I researched briefly the topic of Hafka'as Kiddushin -
Annulment of Marriages - today, in the "Otzar HaPoskim", an exhaustive
reference work containing most of the responsa literature as it pertains
to Even Ha'Ezer, the volume in Shulchan Aruch (the Code of Jewish Law)
that pertains to laws of Marriage, Divorce, etc., siman 28, se'if 21,
se'if katan 37. What emerges from a brief perusal is that it is
essentially impossible, in the absence of a Sanhedrin (Parenthetical
Note: It may be imperative to reconvene the Sanhedrin at this juncture
just to curb these evildoers!) to annul a marriage after marital
relations have taken place. It is also essentially impossible for a
specific community, even before a Kiddushin ceremony, to enact an
ordinance and decree that the marriage of any person who does not abide
by that ordinance (such as, that marriages only take place in the
presence of ten men - not Halachically required for the "Kiddushin", but
only for the "Chuppa" or "Nisuin") and marries in fragrant violation
thereof, is null and void. (The material on this issue is extensive,
both pro and con the validity of such a decree, but the preponderance of
opinion is that a local ordinance does not possess sufficient
authority).
There is ample Halachic evidence, however, that an ordinance,
backed up by a decree of annulment, issued before the fact (i.e.,
unfortunately, this ordinance would not help ex post facto for any
heinous act already perpetrated by an evil father, but would only apply
to future cases), accepted by all the communities throughout the land
(in our case, the United States) would in fact be sufficiently
authoritative to render any Kiddushin performed in violation of the
ordinance null and void! Precedent for such an ordinance is to be found
in such eminent sources as the Maharam Alshakar, siman 48 and the Chasam
Sofer, Even Ha'Ezer (vol. 1) siman 110. The Chasam Sofer (who discussed
a scenario where the government outlawed certain marriages that are
allowed by Jewish Law that did not, however, entail such horrors as are
involved here) suggests several other avenues, yet seems clearly to hold
that that such a decree would be valid. (He says the decree should
specify that any money presented for the Kiddushin being annulled is
automatically rendered Hefker - ownerless.) The Dvar Eliyahu
(Kalatzkin) siman 55, who also holds that such a decree would be
authoritative, suggests, however, that the assent of Rabbinic
authorities in Israel be secured, as Halacha recognizes Sage in the Holy
Land as more authoritative than those outside it.
I am very far from being a Posek (Halachic Decisor), and only
advance this suggestion tentatively, for consideration. I believe,
however, that this is an issue that all strata of Orthodoxy could agree
upon, and that, therefore, universal agreement for such an ordinance
could be secured (alright, maybe a little arm-twisting...). Of course,
the wording of such an ordinance must be crafted carefully by great
Poskim of epic stature, who, in any event, will be forced to involve
themselves in the solution of this problem, fraught with unprecedented
danger for Torah Judaism.
Yosef Gavriel Bechhofer
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From: <m-as4153@...> (Ari Shapiro)
Date: Wed, 31 May 95 14:19:30 EDT
Subject: Marrying off a minor daughter
<I was always taught that the torah was not given for a specific
<generation but for every generation. How do we then reconcile this with
<akiva's staement about this atrocity. (which i happen to agree with) i
<mean the torah permits it, and all it's ways are ways of peace.
The Ramban at the beginning of Parshas Kedoshim explains that there is a
concept of 'Naval Birshus Hatorah'(someone who is disgusting within the
law). Meaning that while this person is not violating any specific torah
law he is not acting in accordance with the spirit of the law. One
example the Ramban gives is a man marrying many wives so he can sleep
with them all the time, while he is not violating any aveira he is
marrying the women for the wrong reason. It is things like that the
Torah is warning us against when it says Kedoshim Tihyu (be holy). This
case of marrying off your daughter so that you can extort money from
your wife would certainly seem to fall into the category of Naval
Birshus Hatorah and therefore can certainly be described as an
atrocity..
Ari Shapiro
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From: <icb@...> (Israel Botnick)
Date: Thu, 1 Jun 95 12:01:36 EDT
Subject: Marrying off one's daughter
This is a correction to a previous post of mine.
In Volume 19 Number 76 I wrote that if one commits a sin that doesn't
carry the penalty of malkos(lashes) and is not theft related, he would
not become invalidated as a witness.
This is true on the de-oraisa(biblical) level, however there are some
opinions that such a person would be rendered posul eidus derabonon
(invalid as a witness on a rabbinical level) - (Rama choshen mishpat 34,1).
Unfortuntely this would not help the situation since even if we assume
that those witnessing the father marrying off his daughter are committing a
sin and are rendered as rabbinically invalid witnesses, they would still be
valid as witnesses for a marriage. This is because marriage
takes effect on a biblical level, so a witness declared invalid only
rabinically is still valid.
(rambam hilchos ishus chapter 4 and rema to Even Ha-ezer end of siman 42).
Israel Botnick
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From: <icb@...> (Israel Botnick)
Date: Thu, 1 Jun 95 12:25:23 EDT
Subject: Minor Marriages
Eliyahu Teitz wrote regarding the witnesses to minor marriages:
<< The problem with this line of thought is that they are performing no
<< sin. They are witnessing a Torah permitted event, a father marrying off
<< his daughter. While the motives of the father are abhorrent, the act of
<< testimony on the part of the witnesses is not against Torah law.
I strongly disagree.
Being involved in rendering a young girl as an aguna is as serious a
violation of veAhavta leReacha Komocha (Love your neighbor as yourself)
as I can imagine. There is also certainly a violation of Lifne Iver Lo
Siten Michshol (prohibition against misleading someone or helping someone
someone to commit a sin) because the witnesses are aiding the father in
sinning against his daughter.
It may be true that a father can marry off a daughter to anyone he pleases,
but that assumes that he will inform her who her husband is so she can go
on with her life. Using the priviledge for the sole purpose of rendering
his daughter an aguna goes well beyond what the father is permitted to do.
This is not a Torah permitted event which simply has the wrong motives.
It is an aveira. The witnesses are therefore also committing an aveira
but unfortunately the aveira they are committing doesnt render them as
invalid witnesses.
Israel Botnick
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From: Heather Luntz <luntz@...>
Date: Tue, 30 May 1995 20:14:55 +1000 (EST)
Subject: Re: Witnesses for Marriage
On Mon, 29 May 1995, Avi Feldblum wrote:
> It is the difference between "you don't need" and "you don't need to
> produce them" where Akiva's proposal lies. You absolutely need
> witnesses, otherwise there is no halakhic act of kedushin. These
> witnesses need to be kosher valid witnesses. Whether the father needs to
> produce them or not is an issue of ne'emanus (trustworthiness) of the
> father to make such a statement to Beit Din and be believed. If however
> the very passive witnessing of such an event (and then refusing to come
> forth to Beit Din and tell all they know) were to remove them from the
> status of valid witnesses, then Akiva's suggestion would have merit.
My apologies if I was not clear. Obviously to have a *real* kiddushin
you need to have witnesses. But the sources I brought seem to show, that
the father is believed in the absence of the production of witnesses
(otherwise how can we explain the - I married my daughter, but I don't
know who I married her to situation - obviously just call the
witnesses). ie it is the nemanus of the father that is validated by the
sources. (It also comes up in context of a woman not being believed that
her child is mamzer, because she is incriminating herself, ie nemanus is
the critical issue).
Lets take what may in fact be the real situation - there was No
kiddushin, no witnesses, no nothing (remember if there was a kiddushin,
there is some man out there that, unless he is a Sephardi cannot marry
anybody else, is prevented from pru u'rvu etc - obviously he has got
some interest in the matter being known). Even in this case - you could
call for witnesses, and none would turn up. And the halacha says that
the father is believed, and the daughter cannot marry.
It is that problem that I was adverting to that makes the issue that
much more complicated, that is, not only that a formal act of kiddushin
occurred, but that the father's edus is accepted as the end of the
matter. Akiva's solution did not appear to factor that in, and it is an
issue that would need to be dealt with in coming to any solution.
[In response to Zvi's uncertainty about whether the father would be
believed without stating either the witnesses or the chossan, see the
sources I cited in my last post Hilchos Ishus 9, 10 and 11 and S.A. Even
HaEzer 37, 20. Both cite as halacha that if the father says he doesn't
know who the chossan is, the daughter can't marry. If he had to produce
witnesses, then we could ask them - and you would need to say that both
the witnesses and the father didn't know. It would seem from here that
neither a name nor witnesses need to be produced]
BTW if you want a really simple [nasty] solution, you could always try
questioning the Jewishness of the father. After all, if the father isn't
Jewish, then he has no authority over his daughters (and was never
married to his wife). Although one usually presumes that all Jews have a
chezchas kashrus, a) it is hard to believe that anybody who could do
such a thing - using the Torah to deliberately harm the most innocent
and vulnerable, could be from the seed of Avraham, Yitzchak and Ya'akov
(it absolutely reeks Amalek on all levels), b) who knows what a good
genealogist could dig up if they go back far enough and c) it would give
the daughter something practical to do (and something for the father to
worry about)! But it really is a pretty awful response to be forced
into.
Regards
Chana
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End of Volume 19 Issue 83
