Volume 58 Number 18 
      Produced: Wed, 26 May 2010 21:30:29 EDT

Subjects Discussed In This Issue:

cohabition outside of marriage (7)
    [Martin Stern  Yosef Branse  Martin Stern  Meir Wise  Mordechai Horowitz  Akiva Miller  Yehonatan Chipman]
dina d'malchuta dina (2)
    [Carl Singer  Sammy Finkelman]
marriage and separation 
    [Russell J Hendel]


From: Martin Stern <md.stern@...>
Date: Tue, May 18,2010 at 03:01 AM
Subject: cohabition outside of marriage

On Thu, May 6,2010, Carl Singer wrote:
> I'm a bit confused -- not an unusual state for me -- since one of the forms
> of marriage is "be-ah" [sexual relations]  how do this young single man and
> his single female paramour remain unmarried if they are, indeed, having
> relations.
> One doesn't need a hall, a caterer and a band to be married.

While this last comment is absolutely correct and should remind young people
that excessive expenditure on one night's event is not essential, it is not
particularly relevant to the case in hand.

In order for biah [sexual relations] to effect marriage, it must be done
with that intention and be witnessed by two witnesses. While the latter only
have to see the couple seclude themselves for long enough to be able to do
so, and not see the actual act take place, they must be aware that this is
the couple's intention. With the decline in marriage in society this is no
longer the presumption by every cohabiting couple so they would have to be
informed by them. I would imagine that those not marrying are engaging in
sexual activity deliberately without such intention nowadays.

Martin Stern

From: Yosef Branse <ybranse@...>
Date: Fri, May 21,2010 at 10:01 AM
Subject: cohabition outside of marriage

In Issue 58/14, Carl Singer asks
> since one of the forms of marriage is "be-ah" [sexual relations]  how do
> this young single man and his single female paramour remain unmarried if they
are, indeed, having  relations.  One doesn't need a hall, a caterer and a band
to be married.

But one does need intention. Relations alone don't make the marriage.
See, e.g., the commentary of Bartenura on the first Mishnah, in Kiddushin,
which cites "kesef [money], shtar [document] and bi-ah [relations]" as
mechanisms for effecting kiddushin.

Regarding bi-ah, he says: "he has relations with her before witnesses, for
the purpose of kiddushin."

If this weren't so, and relations effected kiddushin even without intent, it
would make for an extremely complicated situation in contemporary society
where premarital sex is widespread. Any Jewish woman sleeping with her
Jewish  boyfriend would become betrothed, an 'eshet ish', and require a
halachic divorce if she ever wished to marry someone else. Things are
complicated enough as is.

Yosef Branse

From: Martin Stern <md.stern@...>
Date: Sun, May 23,2010 at 02:01 AM
Subject: cohabition outside of marriage

On Mon, May 17,2010, Avraham Walfish <rawalfish@...> wrote:

> Carl wondered how a man and a single woman can have sexual relations with
> one another, without the relations resulting in a halakhic betrothal
> (kiddushin), which renders them married. The simplest answer is given by the
> Tosefta Kiddushin 1:3 (also cited in the gemara), which explains that
> sexual relations produce kiddushin only when the man and the woman intend
> the relations to create a marital relationship.
> However, the mishnah towards the end of Gittin raises questions regarding
> both of these premises, stating that when a divorced couple sleep together
> in the same hotel room, they are presumed (according to Beit Hillel) to have
> renewed their marriage, based - according to the gemara - on two premises:
> (a) there were people who witnessed their entry into the room, and they are
> considered to be witnesses to the presumed act of marital relations; (b) a
> person who has relations with a woman is presumed to have intention for
> legitimate marital relations and not for *zenut*. Based on this mishnah, it
> is arguable that any man and woman who are known publicly to be living
> together would be considered as married. This question is disputed by
> rishonim and aharonim. Some argue that, indeed, based on this mishnah, any
> couple known to be living together are considered as married and may not
> separate without a proper divorce. Others argue that this mishnah is limited
> to a previously married couple, but for a couple that has never been
> married, one or the other of the presuppositions of Beit Hillel would not be
> applicable.

The case of a previously married couple is slightly different in that they
are known to have had relations in the past and might not feel quite as
inhibited from such intimacy as others.

In general, a Beit Din would probably expect a woman in such circumstances
to obtain a get from her "common law husband" if at all possible before
allowing her to marry someone else but that get would have only been a
chumra [stringency] to remove any suspicion that she might have been
halachically married to him.

If, nonetheless, she had entered into a new relationship and had children
from it, the other opinion is generally accepted and the children are NOT
considered mamzerim.

Martin Stern

From: Meir Wise <meirhwise@...>
Date: Sun, May 23,2010 at 05:01 AM
Subject: cohabition outside of marriage

I've been trying for months not to get involved in the sex outside 
marriage correpsondence but Arie Weiss saying that you need witnesses 
to the Biah is a step too far!

No biah has witnesses or should have witnesses!

For a full discussion of the subject one should consult ''Nisuin shelo 
kedat Moshe Veyisrael'' by my late Rebbe, Rabbi Getzel Ellinson 
zatza''l published by Dvir.

Rabbi Meir Wise, London

From: Mordechai Horowitz <mordechai@...>
Date: Sun, May 23,2010 at 10:01 AM
Subject: cohabition outside of marriage

Hillel wrote:
> It depends what they have in mind in before hand. If they have in mind
> NOT to be "married" when having relations, then they are not married.
> There are also cases in which people have married according to halacha
> but were careful not to get "married" according to secular law (such
> as getting a nonJewish wedding license). One of the reasons would be
> someone who have given a get but has not yet finalized the secular
> divorce. In some states, the divorce decree does not become final
> until a certain amount of time has passed, but the couple being
> married do not wish to wait.

It's called adultery under the law and the couple are criminals who can 
be put in prison.

Especially considering how easy and quick a secular divorce is 
nowadays.  If the secular divorce is ongoing also the "spouse" can find 
themselves hauled into court to testify about the adultery as can the 
Rabbi who performed the ceremony, the witnesses and guests. 

Another reason this occur is so Kollel wives can claim to be single moms 
when they go to the welfare office who don't know who the father of the 
children are so they can get welfare checks and medicade so the 
"husband" can not work and go to the kolel every day with his friends.

Not exactly a kiddush H-shem in either case.

From: Akiva Miller <kennethgmiller@...>
Date: Mon, May 24,2010 at 09:01 AM
Subject: cohabition outside of marriage

In MJ 58:09, in the thread "mikveh for unmarried women", David Tzohar wrote:
> Ma'aseh shehaya kach haya (here is a real life story). A totally
> normative, religious and observant young man aged 27 asked the Chief
> Rabbi of one of Israel's cities the following question: I am in a
> serious relationship with a woman but for many reasons we cannot
> marry at this time. The physical part of the relationship is getting
> to the point of no return.

Here's the part that I don't understand about this story:

How can the relationship have a "physical part", and still call this man
"totally normative, religious and observant"?

I'm not perfect either, and there are indeed some mitzvos which I struggle with,
and occasionally fail at. But if someone was talking about me in the context of
that struggle and failure, I would not expect them to describe me as "totally
normative, religious and observant".

Akiva Miller

From: Yehonatan Chipman <yonarand@...>
Date: Tue, May 25,2010 at 02:01 PM
Subject: cohabition outside of marriage

I was, frankly, somewhat annoyed at Russell Hendel's posting in V58n14 under the
heading "marriage and separation."  His writing in capital letters (a practice
considered rather rude, by the way, tantamount to shouting your opponent down in
an argument), and repeating the phrase "according to all authorities" doesn't
make his statements any more accurate.  

    He correctly states that there are "two biblical laws at stake. (1) The
prohibition of 'prostitution' and (2) the positive commandment, a requirement,
that relations be preceded by a marriage ceremony."

    The prohibition of prostitution is in fact mentioned by Rambam in Hilkhot
Ishut 1.4 - -where, by the way, the Rabad, certainly an "important authority,"
disagrees with him -- and he uses the rather ambiguous phrase "one who has
relations with a woman leshem-zenut beli kiddushin -- "for purposes of
prostitution, without betrothal/marriage."  Are these two phrases additive -
that is, are they two separate requirements necessary for relations to be
considered prostitution, or does the latter, i.e., the absence of marriage,
automatically define the former as zenut?  This point is uncertain, and some of
the best halakhic minds since the Rambam have wrestled with this problem.  R.
Yaakov Emden (another "authority" who does not agree that the act is necessarily
forbidden), in his famous responsum in Teshuvot Yavatz II.15, states that the
Rambam saw these as two independent clauses.  And indeed, even a casual reading
of Rambam's Hilkhot Na'arah Betulah 2.17 will reveal this to be the case. 
There, Rambam describes a kedesheh as a woman who makes herself "ready [i.e,
available] for intercourse with all comers" -- i.e. something like today's
professional prostitute.

    At this point, I would like to present two typical cases from the real-life,
contemporary milieu, and ask whether they meet that definition:

     1.  Is a woman who is promiscuous - that is, one who, say, goes to a party
or a single's bar with the explicit purpose of finding an attractive man in
order to go home with him for purposes of sex, for her own pleasure, a kedeshah?
 I tend to think so, but the case is nevertheless somewhat different from the
"classic" prostitute.  Here, the woman exercises an element of discrimination -
she has to find the man attractive, and chooses to respond to his advances or not.

    2.  If a young man and woman meet, begin dating, spend a lot of time
talking, and gradually also move to physical closeness which eventually leads to
intercourse, be it before or after they think of themselves as "boy friend" and
"girl friend" or "a couple" or "significant others" or whatever term is
preferred -- is this zenut as defined by the two halakhot mentioned in Rambam? 
I would think that almost certainly not.  Indeed, if the couple think of their
relation as an exclusive one (i.e. neither one sleeps with anyone else) and
their relations occur in private, in a fixed place or places (e.g. the apartment
of one or another  of them), it seems to me that they in fact fulfill R. Yaakov
Emden's stipulations for pilegesh (concubinage) -- this, re Russell's objection
to Jay Schachter's posting.  

     Incidentally, I don't know where Russell gets the notion that concubinage
is defined as a relationship which cannot be dissolved, suggesting that in
modern terms it only exists in civil marriage.  Rambam seems to equate
concubinage with pre-Sinaitic marriage or with Noachide marriage which, as he
says in Melakhim 9.8, can be dissolved by either party deciding to break the

    I would add here that many major rishonim - the Rabad as mentioned, as well
as Ramban, Rashba, and others - don't agree with Rambam's definitions on this

   As for the second issue mentioned:  the positive commandment of kiddushin,
that a couple undergo a certain public ceremony that makes them "married."  This
is rather different than "a requirement that relations be preceded by a marriage
ceremony."  The crux of the issue is, in technical halakhic language, whether or
not kiddushin involves an issur aseh -- that is to say, is it a positive
commandment, failure to perform which brings in its wake a prohibition?  Some
mitzvot do, others don't.  Rabbi Soloveitchik, in his introductory lectures to
learning Masekhet Kiddushin (which have been published in two separate
articles), argues that it does, making a rather elegant argument based on
Rambam's Sefer ha-Mitzvot.  Other contemporary authorities might not agree. 
But, more important, here too his argument is based upon Rambam's approach and
is not across-the-board of all rishonim.

    An interesting anecdote shows that the Rav himself did not see premarital
sex as prohibited by all authorities.  A cousin of mine, who was among the close
students of the Rav, when he was a young yeshiva bakhur came across R Emden's
responsum and excitedly asked the Rav what to make of it.  The Rav replied, "He
is a naval bereshut ha-torah" -- that is, "a knave with the permission of the
Torah."  In other words:  the act may be permitted, but it is improper,
distasteful, even objectionable on extra-halakhic or meta-halakhic, ethical

     I once wrote a lengthy study of this issue, which I will be happy to send
upon request to any one who asks;  please write me off-line at my private email.
 To summarize my own conclusions:  the subject itself  is a difficult one, due
to the paucity of material in the Talmud.  The rishonim are divided on the
issue;  hence, in the absence of cogent, compelling reasons to the contrary, we
must rule strictly.  I then go on to discuss the extra-halakhic reasons as to
why this issue has arisen at this time, the difficulties people experience in
this area due to the tendency towards late marriage due to certain aspects of
modern culture, etc.  Nevertheless, I do not see these as a "compelling reason"
to justify a permissive pesak.

    However, given that this is a highly sensitive issue;  given that sexual
need and desire is one of the strongest forces in human life;  and that, as
mentioned, many people for a variety of reasons are unable to marry until their
late 20's or even later (mostly, the demands of advanced professional education;
 the solution of early marriage, with small modest weddings, is not a workable
solution, because as I see it many people are not sufficiently mature to make a
real, binding commitment at 20 or even 25 -- and the last thing our society
needs is more divorce), I believe that a measure of compassion, understanding,
and absence of judgment is in order on this issue.

Yehonatan Chipman, Jerusalem


From: Carl Singer <carl.singer@...>
Date: Mon, May 10,2010 at 08:01 PM
Subject: dina d'malchuta dina

In a post  re: Marriage and Separation I wrote in response to a posting
regarding adultery:

> Not to in any way minimize civil adultery statutes -- but for
> clarification, "dina demalchuta dina" is specific to monetary / business
> laws -- not law in general. Although there are ample good reasons for
> obeying ALL of the "laws of the land" -- "dina demalchuta dina"
> isn't the catch all.

Ms. Luntz  - recently posted a learned discussion / refutation of the above
- with which in large part I disagree.

This is an important thread that has been visited many times -- I recall
that Sammy Finkleman addressed some of this in November of 2009
Below is cut / paste from same:

> Well, we may be confusing several different ideas, and in the end giving
them the same name.

> I think the locus classicus of dinah d'malchuta dina has to do with
monetary matters that a Beis din might have to rule on.

> A lot of that has to do with what happens when something wasn't specified
in an agreement.

> Jewish law has certain defaults, but Dina d'malchuta dina  - whatever the
law of the country says that is what applies. It also means that
you owe taxes.


As I recall I provided several situations -- such as renting out an illegal
apartment -- and asking if these fall within.

In any case, I'd be interested in hearing more thoughts regarding if and how
dina d'machulta dina applies to non-monetary subsets of civil law.

As an aside -- I'm always taken aback by postings that seem to seek
permission (loopholes?)  to do something that might be considered unsavory
or potentially illegal.


From: Sammy Finkelman <sammy.finkelman@...>
Date: Tue, May 18,2010 at 03:01 PM
Subject: dina d'malchuta dina

In M-J V40#16, Joel Rich wrote:
> FWIW there are at least 6 theories brought down as to the source of Shmuel's
> seemingly universally accepted statement "DMD". You can consider the reach
> of DMD based on each theory:
> 1. Popular acceptance of the King's laws
> 2. Royal ownership of all the country's land
> 3. Ownership by conquest
> 4. Popular acceptance of King's sovereignty
> 5. Bnai Noach must set up courts(dinim)
> 6. Hefker Bet din Hefker(court's ability to expropriate property)
The Jewish Virtual library has a little on this in

which is an article on Babylonia

and more so at

which is devoted entirely to Dina D'malchuta Dina.  Both articles say
this comes from Shmuel (Samuel) -  the well known Shmuel of
Rav and Shmuel - and say this is something that happened after the
conquest of Babylon from the Parthians by Ardashir I, king of the Sassanids,
in 226 C.E.

The second article states:

"Samuel's principle is cited only four times in the Talmud (Ned. 28a; Git.
10b; BK 113a; BB 54b and 55a)."

I haven't checked these Gemorahs.

The article also mentions Yev. 64a (with BM 73b) as another place that
dictum comes up (with regard to the right of a Jew to buy another Jew sold by 
the government for non-payment of taxes)

There is some discussion in the Jewish Virtual library article about where
this principle stems from and what kind of government and what kinds of

It also mentions the question as to what kinds of documents issued by
non-Jewish authorities to accept as evidence and what if the government
issues decrees about what can satisfy debts and even what to do if they
presume to make appointments of Jewish leadership, should such appointments
be accepted by the people appointed?


From: Russell J Hendel <rjhendel@...>
Date: Thu, May 6,2010 at 08:01 PM
Subject: marriage and separation

Yaakov Shachter in v58n7 expresses the opinion that private sexual relations
with a non-Jewish non-Canaanite woman are Rabbinic.

I find this view shocking from several points of view.  First, I wish to
criticize Jay for performing a classic mistake of people (such as Jay) trained
in modern legal methods. The primary source for Jewish law is the Bible not the
Talmud and responsa. The Bible at Deut. 7 (as I recently explained) makes it
clear that premarital sex with a non-Jew results (1) in HIS (singular) deviating
from Me and (2) THEY (plural) (the children) worshipping other gods. Jay
undoubtedly reads this verse with "Talmudic eyes." The Talmud simply speaks
about the children having non-Jewish status. BUT THE TALMUD DID NOT ERASE THE
PEOPLE And this is not a "joke" which one can call rabbinic.

Next: Jay says, Biblically, only Canaanites are prohibited. That would make the
Torah racist which it is not. The Bible in Ex. 34 and Deut. 7 makes it clear
that the Canaanites were prohibited because of idolatry. Anonymous did not tell
us much about the woman he is involved with. If she is a Christian (that is if
she had her marriage ceremony in a church) then UNDER JEWISH LAW FOR JEWS, she
is involved with idolatry (since Judaism holds that the worship of a human being
as a deity (even though he partners with God) is idolatry for Jews). There is no
difference between a) a Canaanite woman b) a devout catholic who believes in
Christian doctrine and c) a non-Christian who however has ceremonies in the

Finally: I have cited several times Nu. 24,25 (also brought down by Rambam in
Laws of Marriage Chapters 12-14). Nu. 24,25 describes premarital casualness
between Jewish men and Moabites women. The Bible considers this an act of war.
Let me be very clear. There is no indication in the Bible that the Moabite women
were hostile. On the contrary, they were friendly (Too friendly). There is no
difference between the attitudes of Moabite women and American women...they both
enjoy a good affair. The Bible considers the sanction of affairs with Jews an
act of war (To be fair to America, America believes that all people should be
allowed to mingle - so there is no focus on the Jews per se). 

I have not brought the preceding argument to argue for a declaration of war
against America. Rather, I have brought it to emphasize that extensive relations
between non Jewish women and Jewish men has the potential to be considered an
act of war even though both sides are enjoying themselves. Clearly, this is not
a "rabbinic joke" This is something extremely serious.

Russell jay Hendel; Ph.D.; A.S.A; http://www.rashiyomi.com


End of Volume 58 Issue 18