Volume 19 Number 87
Produced: Thu Jun 1 23:25:05 1995
Subjects Discussed In This Issue:
Annulling marriages (forwarded from another list)
[Freda B Birnbaum]
Marriage against one's will
[Akiva Miller]
Marrying off Minor Daughter
[Joseph Steinberg]
Marrying off one's daughter
[Rachel Blumenfeld]
minor daughters
[Heather Luntz]
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From: Freda B Birnbaum <fbb6@...>
Date: Wed, 31 May 1995 18:04:43 -0400 (EDT)
Subject: Annulling marriages (forwarded from another list)
The person who posted this to BRIDGES asked that it be disseminated to
appropriate fora, so here goes:
---------- Forwarded message ----------
Date: Wed, 31 May 95 09:30:56 -0800
>From: <galabovitz@...>
[...] after digging out my old paper and writing up all the resources
found therein ("therein"? I'm married to a lawyer, what do you wnat
from my life! ;-)), it occured to me that this should go to the list as
a whole. Take these resources and make use of them! Pass them on to
your favorite Orthodox rabbi. Pass them on to every rabbi you know.
Pass them on to anyone you know, rabbi or no, with halakhic expertise.
May God grant us a solution for trapped women everywhere speedily and in
our days!
On Thu, 25 May 1995, [...] wrote:
> Could you send em a citation for some of the sources on annulment? This
> sounds very interesting. Thank you.
I found my old paper. So, some sources for you to check out:
Talmud - Baba Batra 48b, Yevamot 110a, Gittin 33a (cited in the context
of a broader argument regarding rabbinic power on Yevamot 90b) and 73a
and Ketubot 2b-3a. Check out Rashi and other commentaries on these
sources. See also Rashi on Shabbat 145a-b, where Rashi that what the
rabbis are really doing when they bend the rules of evidence to allow a
woman to remarry based on the testimony (to the death of her husband) of
one (rather than than the usually required two) witness, including women
and others not usually allowed to testify, is annulling the wife's first
marriage.
The codes and the teshuvah (responsum) literature generally deal with a
particular permutation of the issue. In order to prevent deceptive
betrothals (a man appraoching a woman with 2 witnesses and suprising her
with some token of betrothal accompanied by the betrothal formula),
communities instituted a number of different "solutions" - e.g. marriage
can only be performed in the presence of a minyan, marriage can only
take place with the concent of the bride's parents, and so on. So, what
happens if someone violates the community ordinance? Can the rabbis of
the community invoke the right to annul the betrothal? Medieval rabbis
generally seemed to feel that there was some suh right, at least on a
theoretical level, but were reluctant to use it in practice. See
Rashbah (Rabbi Solomon ben Abraham Adret), teshuvot #551 and #1206 (and
also #1185, on the related issue of using witnesses who would be kosher
according to biblical law, but are disqualified by talmudic, rabbinic
law). Also, Rivash (Rabbi Isaac ben Sheshet Perfet) #399 and Tashbatz
(Rabbi Simeon ben Zemah Duran) #133. Annulling marriage does not make
it into the "main" text of any of the major codes (Tur, Shulhan Aruch,
Mishne Torah), but see Yosef Karo's (the author of the Shulhan Aruch)
commetnary on the Tur, and Moshe Iserles' commentary on the Shulhan
Aruch, in both cases in Even Ha'Ezer, section 28, on the last halakha of
the chapter.
Modern resources - Eliezer Berkovits, in his book *T'nai b'Nissuin
u'b'Get*, dedicates chapter 4 to an extended discussion on the Talmudic
cases and the commentary on them, trying to discern broad principles
underlying different views of how annulment works and (therefore) when
it can be applied. See also *Tradition*, Fall 1984, in the book review
section, for a call by Rabbi Emanuel Rackman (president of Bar Ilan
University) and Menachem Elon (now retired Israeli Supreme Court judge)
for a revival of this rabbinic power. For the actual renewal of this
power in the Conservative Movement, see "Kedat Moshe VeYisrael" by Rabbi
David Aronson in *Proceedings of the Rabbinical Assembly, 1951*.
One possible means of preventing the tragic use of minor girls as pawns
in conflicts between parents from happening to more young girls (though
this won't help those already so trapped by their "fathers") is for as
large a group as possible of prominent rabbis to get together as soon as
possible and issue an ordinance for the entire Jewish community that no
marriage of a minor may take place without the consent of the girl's
mother, or the court, or whoever, and that any violation of the
ordinacne with thereby be grounds for declaring the betrothal null and
void.
= Gail Labovitz = The Jewish Theological Seminary = <galabovitz@...> =
------- End of Forwarded Message from BRIDGES -------------------
Freda Birnbaum, <fbb6@...>
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From: <Keeves@...> (Akiva Miller)
Date: Thu, 1 Jun 1995 00:48:41 -0400
Subject: Marriage against one's will
Several posters have pointed out what seems to be a flaw in my
logic. Since the Torah explicitly allows a father to marry off his
daughter, they ask, how can we classify this action as a sin to
disqualify the witnesses. Thanks to Heather Luntz, who pointed out where
these laws can be found (Shulchan Aruch, Even Haezer, 37), my eyes have
been opened wide. I am amazed at how much power the father has. A great
deal of what is written there would appear at first glance to be quite
sexist and anti-women, except for one detail, and that is the
presumption that the father is acting in his daughter's best
interests. I dare not claim to have learned this section of Shulchan
Aruch, but I did skim it lightly. I see that the father can marry off
the daughter *without* *her* *knowledge* (shelo midaata), but I did not
notice if anyone discusses whether he can do this *against* *her* *will*
(baal korcha). Is this discussed anywhere?
I have been working under this presumption: It is explicit in the Torah
that the father may marry off his daughter. It is not explicit (though
it is true) that he can do this without her knowledge. And it is much
much much less clear that he can do this even if she objects. And
therefore I am trying to evade all the details of what the father may or
may not do, by disqualifying the witnesses. I do realize that I am on
very shaky ground. I do realize that I am commenting on areas of Torah
which I have not studied in depth. I do realize that there exist certain
activities which the Torah allows even though they could be considered
mean and violent. (For example, a Jewish soldier may take the "eishes
y'fas toar" even agaist her will, provided that he goes through the
proper rituals. But I do not think that kidushin or witnesses are
required there.)
There are certain marriages which are sinful but valid, and the
witnesses are not disqualified, such as a kohen who marries a
divorcee. But the sin which is done by THIS marriage is theft of the
daughter's ability to ever have any kind of married life whatsoever. I
suspect that this might meet BOTH of Israel Botnick's criteria posted in
19#76:
>The Rambam and Shulchan Aruch in Hilchos eidus (laws of witnesses) clearly
>defines 2 categories of aveira (sin) which can disqualify a witness
>1) an aveira that carries the penalty of malkos (lashes).
>2) an aveira of chamas (stealing or theft related aveira).
(1) Forcing a girl to be married to someone whom she does not want to be
married to -- is this anything less than mesira (delivering a Jew to be
a captured prisoner)?
(2) Chamas -- Please offer references which translate Chamas
(ches-mem-samech) as relating to theft. I always thought it had a
connotation of violence in general. I offer you the commentary of the
great linguist Rav S.R. Hirsch, to Deut 19:16, on the phrase "eyd
chamas" - "a chamas witness". This is a direct quote from Isaac Levy's
popular English translation: "Eyd chamas is a witness who misuses the
power with which he is invested to give evidence by using it in an
outrageous brutal manner against his neightbour." What more need I add?
With all due respect to those who know more Torah than I,
Akiva Miller
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From: Joseph Steinberg <steinber@...>
Date: Thu, 1 Jun 1995 15:21:08 -0400 (EDT)
Subject: Re: Marrying off Minor Daughter
:Eliyahu Teitz suggests the possibility of "convincing" the father to
:divulge the name of the husband, and compares this to the case of adult
:agunot. We must note that there is a significant difference - in the
If the father says that he forgot the to whom he married his daughter,
isn't the Halacha in the Talmud *clear* that she is prohibited to every
man in the world! In such a case you cannot do anything to the father
(or at least so it seems from the Talmud), and she is in trouble... The
Talmud could not have been referring to a case in which the father was
helping his daughter -- as whenever he forgets to whom she is betrothed
she is in trouble... (That a father could marry his daughter off and
forget to whom, seems to imply that something was fishy to begin
with...)
This is one reason why I have serious problems accepting that the Talmud
applies *as is literally* for all times. But this should be no surprise,
the Talmud's medical ideas are hardly accepted in today's Western
societies, its belief in demons and the like are not very popular among
educated people here either. Remember in what society the Rabbis of the
Mishna and Talmud lived -- the Near-East of the first millenia CE had
cultures with very similar concepts (men [father or husband] controlling
women, etc.)
If you want another great quote from the Talmud-era check out the one
that says that no one would ever have the Chutzpah to claim that the
Jews don't own Jerusalem, Hebron, or Nablus because David bought the
Temple Mount, Abraham bought the Cave at Hebron, and Jacob bought the
field in Nablus. Interestingly, these are the precise sites (Judea &
Samaria, and especially Hebron, Nablus, and Jerusalem) that are now
being referred to as illegally 'occupied' by Jews, but belonging to
another nation...
| | ___ ___ ___ _ __ | |__ Joseph Steinberg
_ | |/ _ \/ __|/ _ \ '_ \| '_ \ <steinber@...>
| |_| | (_) \__ \ __/ |_) | | | | http://haven.ios.com/~likud/steinber/
\___/ \___/|___/\___| .__/|_| |_| +1-201-833-9674
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From: Rachel Blumenfeld <rachel@...>
Date: Mon, 29 May 1995 23:52:59 -0700 (PDT)
Subject: Re: Marrying off one's daughter
In his book _Jewish Women in Time and Torah_, R. Eliezer Berkovits
discusses the possibility of (re-) instituting the practice of rabbinic
annulment of marriages as a way of solving the plight of agunot. (Others
have discussed it as well, including R. Riskin in _Women and Jewish
Divorce_ and I. Breitowitz in _Between Civil and Religious Law:The Plight
of the Agunah in American Society_. While Breitowitz does not
advocate it as a solution, he does point to several sources for it. In
fact, his problem with the solution is precisely one that has been
discussed in this forum-- namely, the breakdown of Jewish community
and the lack of authority or power of the batei din.)
I have heard that this is done in some cases in the Conservative
movement. It would seem to me that the cases that are being discussed
here cry out for this type of solution. I'd be interested in hearing
some rabbinic responses to this.
Rachel Blumenfeld (<rachel@...>)
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From: Heather Luntz <luntz@...>
Date: Wed, 31 May 1995 22:34:12 +1000 (EST)
Subject: minor daughters
In mail-jewish Vol. 19 #76 Digest Eliyahu Teitz writes:
> If a mother's marrying off her daughter during the father's lifetime is
> valid, and it blocks the father's marriage from taking hold, then maybe
> mothers can marry off their daughters, publicize this event widely ao
> that everyone knows who the daughter's husband is, and then when the
> girl reaches the age of miy'un, she can reject the marriage and
> retroactively be never married and permitted to a kohen.
The Shulchan Aruch discusses a case sort of like this (EH 37 s'14), where
a father goes overseas, and the mother or brother mekadeshes her, and
brings two opinions on whether or not the kidushin is chal. But the
Rama seems to say that if the father were to mekadesh her to another, she
would need a get from both (or at least the second - miyun I assume for
the first).
And then the Rama brings a story in which a woman was divorced and left
with custody and raising of the daughters, and was allowed to marry them
off, over the father's objection but the difference seems to be that the
father originally willed custody and specifically gave the power to
her (before eidim), rather than opposing it.
[but I would really like somebody to look at this, because I am not sure
I have go the story right - I am looking at this cold, on my own, and
this is really pushing the limits of my knowledge and experience].
On the subject of suggestions (and again these are in the form of
questions, because I do not have the knowledge to provide an answer):
1) Might the power the Torah gives to a father to marry off his daughters
be limited to the situation where they are either physically in his rishus,
or he can arrange for them to be? I would presume that in the case where
the father sells his daughter as a slave (where merely by designation the
master can make the girl his wife), that he could not in the meantime
marry her to somebody else. Could he marry her to someone else if she had
been seized by bandits, or the malchus?
In our case, of course, the State, via a custody order, would have
removed her from her father's physical control. I don't know that it was
ever contemplated that a father would marry off his daughter in such a
situation, and wonder if there is any basis to in effect extending the
Torah's perogative to such a case. After all, the general case is where
the father will have power and control over her, or will have left
temporarily and can resume. The story of the Rama seems to suggest a
situation where the father renounced such control. What about if he was
forced away?
2) Is the daas of the father sufficient to constitute kiddushin, knowing
that he does not have the power to have the marriage be consummated? How
about the daas of the chossan? [Of course last goes to the validity of the
kiddushin, not the ne'emanus of the father, but mighten'ed the first be
something that also could be investigated when the father makes his
statement].
3) Do we know what the appropriate formula is for such a kiddushin? After
all Horei *at* is not exactly appropriate. The Rambam appears to bring
various loshonos for the standard form of kiddushin, but not for this
kind. And the discussions in the Shulchan Aruch and the Rambam seem to
imply that the father makes some sort of statement in the course of the
kiddushin (differentiating daughters for example - otherwise there may be
problems over which daughter is meant). It doesn't appear that this
loshon is very specific, but the way we know of marriages, we wouldn't
expect it to be there at all. Of course, in times when marriage of minors
was commonplace, there would have been no difficulty, but how does the
father know (or the eidem or the chosson for that matter, but it the
knowledge of the the father we are concerned about) that a proper
marriage took place in our present state of ignorance?
Any ideas?
Chana
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End of Volume 19 Issue 87