Volume 20 Number 10
Produced: Sun Jun 18 18:36:07 1995
Subjects Discussed In This Issue:
Child Brides
[Harry Weiss]
Fathers betrothing minor daughters
[Richard Schultz]
Interrogation of Witnesses to Marriges of Minors
[Israel Botnick]
Kiddushin via Sexual Relations
[Akiva Miller]
Marriage of Minors
[Israel Botnick]
Marrying off Minors and Lawsuits
[Eli Turkel]
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From: <harry.weiss@...> (Harry Weiss)
Date: Sun, 18 Jun 95 00:16:19 -0800
Subject: Child Brides
I have several comments regarding the situation regarding the marrying
of minors. In today's Sacramento Bee the NY Times Article was brought
down with a headline on the first page of the Scene section saying
"Torah used to turn a betrothal into a sword." and the continuation on
the last page (the religion page) of the section saying "Torah: Critic
sees satanically brilliant ploy." The Bee is considered by many to be
anti-Semitic, but this situation is creating a tremendous Chilul Hashem.
In V20 no 2 Joseph Steinberg says "In fact, if she intermarried, and
then her children converted, the problem of Mamezrut would be avoided
even according to the most extreme Orthodox views." If she had children
they would be Jewish because she is Jewish. I am not sure if the
offspring of relationship between a married Jewish woman and a Gentile
are Mamezrim. (I apologize for not taking the time to check it out, but
I caught up on a backlog of Mjs of Shabbat and am hitting the road again
in the morning and didn't have time.)
I have a question about the Namanut (believability) of the father. In
the case in the gemarra where he forgot who was the father we say he is
believed. In this case both the father and the "husband" (if there is
one) should be considered wicked people and we should use the principle
that a person is not trusted to make himself wicked. The whole solution
would be to find some method to remove the believability of the father.
This would force him to present the witnesses. That would hopefully
eliminate the problem. (I personally believe there were not witnesses
or husband and in time the father will admit that, but can we believe
him at that time when he says he lied earlier. if we believed him in the
beginning.)
I know there are rules that gets must be very specific in all details.
Is this a Toraitic or Rabbinic? If it is Rabbinic could modern day
Rabbis make a rule that in a situation such as this a get could be
written with a description of the husband, just as the husband of x. I
f we decree that a person who marries such a minor is an evil person, we
could appoint an agent on his behalf to issue a get using the principle
that no one wants to be an evil and we can benefit someone without their
knowledge.
I realize I may have missed some major points in my comments, but they
are presented just as food for thought.
Harry
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From: <schultz@...> (Richard Schultz)
Date: Fri, 16 Jun 1995 10:14:19 EDT
Subject: Fathers betrothing minor daughters
I admit that I haven't read every word that's been posted on this
subject, so I apologize if I am raising points that have already been
discussed. One thing that I have noticed is that everyone seems to
be focussing on the reprehensible actions of the father, and of the
daughter who is the innocent victim of all of this. My question is about
the man who is the other party. In the first place (assuming these are
all Ashkenazim), *he* can't get married either. I wonder why he would
consent to remaining anonymous forever, as that would mean that he
could never see his wife, nor have any children with her (when she grows
up), which would be a problem if it were his first marriage. It also
seems to me that by entering into the marriage, he has consented to support
his wife, which means that he can't remain completely anonymous, at least
after the father dies -- I suppose that if the father and husband really
wanted to go to such lengths to keep the husband's identity unknown, the
husband could give the father cash payments which the father would then
give to the daughter. And if this "husband" refuses to support the daughter,
couldn't that be taken as evidence that he didn't enter into the marriage
"k'dat Moshe v'yisrael", making it easier for a beit din to retroactively
annul the marriage? These are all purely halakhic considerations. I
realize that these people probably wouldn't want to use the mechanisms
of the secular courts, but it strikes me that there is probably that
sort of legal recourse as well -- I can imagine taking the father to
court for blackmail or possibly even something like "child endangerment".
I realize that this won't necessarily help the wife obtain a get, but
it might make other men think about whether this tactic is worth it.
Richard Schultz
<schultz@...>
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From: <icb@...> (Israel Botnick)
Date: Fri, 16 Jun 95 17:02:18 EDT
Subject: Interrogation of Witnesses to Marriges of Minors
Regarding the question of whether *Eidei Kiyyum* - witnesses who are
integral to an act, (such as witnesses to a betrothal) can be
invalidated through contradictions in drisha ve-chakira (interrogation)
Rav Moshe Feinstein in a tshuva, writes that there are 2 possible
explanations for the need to interrogate witnesses. a) without the
interrogation, the eidus (testimony) itself is lacking and therefore
invalid, since the witnesses may be making a mistake or lying. b) the
testimony is completely valid even without the interrogation, just that
a beis din is commanded not to make any decisions without first
interrogating the witnesses, so as to be as sure as possible.
Rav Moshe writes that one of the differences between these 2
explanations is whether interrogation would be aplicable to Eidei
Kiyyum. According to the first explanation, it would, since the
interrogation is necessary for the Eidus (testimony) to be considered
valid. According to the second explanation however, the Eidus is
inherently valid even without the interrogation. Interrogation would
then only apply to verbal testimony, which needs to be accepted and
acted upon by a beis din. Eidei Kiyyum though, are effective even
without a beis din (betrothal does not have to be done before beis din),
so interrogation would be irrelevant.
Rav Moshe quotes some rishonim who say that Eidei Kiyyum never require
interrogation, and some who say that they do (Nimmukei Yosef to
sanhedrin), and attributes the 2 opinions to the above explanation.
All this is theoretical of course because as Tzvi mentioned, chazal have
enacted that all witnesses in regard to kiddushin/betrothal (including
those who testify before a beis din that a kiddushin took place) do not
require interrogation. However in a suspicious and potentially
fraudulent case where interrogation of witnesses is required even by
kiddushin, this question would be very relevant - namely do the
witnesses to a kiddushin in a suspicious case require interrogation. If
they do require interrogation, and they contradict themselves on a major
point (I'm not sure about minor points though) then they would be
disqualified as Tzvi had said, and the kiddushin would be nullified. I
am far from being a posek, but It could also be argued that if we follow
this opinion of the Nimukei Yosef, the witnesses not only can be brought
to beis din for interrogation, but their testimony is worthless until
they are interrogated.
Israel Botnick
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From: <Keeves@...> (Akiva Miller)
Date: Fri, 16 Jun 1995 01:03:25 -0400
Subject: Kiddushin via Sexual Relations
Rabbi Bechhofer wrote in MJ 19:94 that
>... There are only two other ways to effect marriage: a) By marital
>relations, which obviously are not taking place here ...
I responded in MJ 19:99:
>This is not at all obvious to me. These fathers must realize that realize
>that if they get hit by a truck tomorrow, then the daughter will be an aguna
>for life. No presumptions can be made about such a person. Besides, no one
>actually *has* to have relations with her. The father simply has to pretend
>that it happened, and it will all be over for her.
And in MJ 20:2 he responds:
>I am confused by Akiva Miller's suspicion that marital relations have
>taken place here. Do we suspect that this father convinced his daughter
>to have relations with a man she could not identify?
Just in case anyone else is confused, I will make my words even more
clear. There are two possible scenarios which I am referring to, and in
neither case does the father convince his daughter about anything.
The first is a case of pure and simple rape. It seems from everything
everyone has written, that the daughter's consent is not required for
the kiddushin to take effect. The "husband" makes his transaction with
the father, and it is his consent which is required, even when the
kiddushin is accomplished by sexual relations. (Shulchan Aruch, Even
Haezer 37:1) The kind of person who would secretly marry off his
daughter --- such a person might very well stoop to having this done by
finding a sympathetic friend to rape her. It could be someone whom she
does not recognize, or she might be blindfolded or in a dark room to
prevent her knowing who the "husband" is. Would this not be a horrible
but valid kiddushin?
The second case is similar, but the father would simply *claim* that the
above occurred. If circumstances are such that his claim would be
obviously false (such as if he has not had physical access to the
daughter) then he would simply claim that this kiddushin took place
several years ago, before his marriage went sour (but after the daughter
turned three years old - see Shulchan Aruch above). In such a case, I
fear that the halacha would still accept his claim and forbid the
daughter to marry.
Conclusion: Any method of anulling a marriage which depends on the
principle of "Hefker Beis Din Hefker" (expropriation of funds by the
court) would not work in the above cases because the marriage was not
effected by any object which the court might expropriate from the
"husband".
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From: <icb@...> (Israel Botnick)
Date: Fri, 16 Jun 95 16:55:48 EDT
Subject: Marriage of Minors
I have a few miscellaneous comments
1) someone had suggested a solution for betrothal of minors, by having
husbands at the time of marriage, relinquish their right to marry off
their daughters. I don't think this would work (even if it isnt a
*davar shelo ba leolam*) because it is a Tnai Al Mah She-Kasuv Batora (a
stipulation which goes against an explicit rule in the torah) since the
torah gives the father the right to marry off his daughter. The
condition would be invalid.
2) Akiva Miller asked for the source of the word "chamas" meaning
stealing. In parshas Noach is the Posuk va-teemaleh ha-aretz chamas
which rashi translates as gezel (stealing). Tosfos to baba kama 62a
notes that in the torah chamas means stealing whereas the word chamas in
the Talmud has a different meaning (grabbing an object and paying for
it, against the will of the owner).
Israel Botnick
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From: Eli Turkel <turkel@...>
Date: Fri, 16 Jun 1995 07:43:02 -0400
Subject: Marrying off Minors and Lawsuits
There has been some mention of criminal action against the fathers
for endangering the health of a minor. I would like to ask if it is
possible to sue the father for money. First, it was brought up that the
father can run away to Africa. That depends crucially on the father's
motive. There was a case in Israel in which a man stayed in prison for
something like 30 years rather than give his wife a get. If the father
is doing this for spite then yes he can run away. I suspect that most
are very rational and doing this for money, custody etc. Thus running
away will not help their cause. As soon as they win the money, custody
they will have to pay the lawsuit (assuming they lose).
My question has 2 aspects:
1. Halakhic - the Torah allows the father to marry off his minor
daughter. Thus I assume that he can not be sued for any damage that
occurs to the daughter because of this. However, since it is forbidden
according to custom he may now be possibly sued for damages. Also a
father is entitled the earnings of a minor daughter. What happens if a
father physically beats his minor daughter (or son for that matter)? I
assume some provision is made to put the damage money aside until they
grow up. It makes no sense to require the father to pay damages to the
minor and then give the money back to the father as the guardian of the
minor.
2. In real life I assume the father would refuse to come to a bet
din. Then the child (and other people) could then go to the secular
courts and sue the father for damages to her mental health. The question
for the lawyers out there is whether the separation of Church and State
would be a problem? Since this marriage is recognized only by halakhah
and not by the state can he still be sued?
In another case: what happens if someone destroys an expensive etrog
right before succot. Can the owner of the etrog sue in secular court or
would he told that the "objective" value of a citon is several pennies
and its religious value is immaterial?
<turkel@...>
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End of Volume 20 Issue 10