Volume 62 Number 79 
      Produced: Fri, 15 Apr 16 03:59:59 -0400

Subjects Discussed In This Issue:

Concubinage Relationship 
    [Chana Luntz]
Halachically married without civil marriage 
    [Sammy Finkelman]
Marital Rape 
    [Irwin Weiss]
Tallit before marriage (was Under age Marriage) 
    [Martin Stern]
Under age Marriage 
    [Robert Schoenfeld]


From: Chana Luntz <Chana@...>
Date: Sun, Apr 10,2016 at 07:01 PM
Subject: Concubinage Relationship

Susan Buxfield wrote (MJ 62#76):

> Chana Luntz (MJ 62#75) has responded to my post (MJ 62#64) but without any
> reference to later posts on the subject.

I read the later posts, but did not think they added to what had previously been

>> The Rema sees it as a split between the Ra'avad and "ktzat meforshim"
>> [the minority of comentators]

> The translation of "Ketzat meforshim" is "some commentators" in this context
> which is not necessarily a minority.

In the context of a stand-off between the "Ra'avad and ktzat meforshim" and the
"Rambam, Tur and Rosh" (as the Rema sees it), the understanding of ketzat
merforshim is clearly the "minority view" (as would be the normal interpretation
of these words).  Anything else is an attempted stretching to achieve a
particular point.  Even those who disagree don't try and suggest that the Rema
did not hold this way.

>> Various Achronim do indeed disagree (and understand the various 
>> Rishonim differently from the Rema and in the way that Susan cites), 
>> but it is hard to say that the Rema's position in the Shulchan Aruch is
>> "tenuous".

> My post did not say that the Rema's position is tenuous, but rather that the
>  original poster's argument, classifying "the majority opinion holding that
> it is not permitted", is tenuous.

But given the plain meaning of the Rema, that is what it amounts to.

>> given that the position of the Rema in the Shulchan Aruch is generally 
>> understood to prima facie be normative for Ashkenazim.

> Normative? that is a very loaded statement. There are plenty of examples
> where Ashkenazim do not pasken like the Rema.

There are indeed, and each of these involve justification why we deviate from
the norm.  that is why I used the term "prima facie" normative.  The Rema is,
for Ashkenazim "prima facie normative" - ie that is the default position from
which there is argument (unlike the view of the Sephardim regarding Maran, where
his position is regarded as pretty close to absolute, with extremely limited
exceptions and the only real way of arguing against it is to say that "if he had
seen this Rishon, he would have ruled differently")

> Except for the Rambam in Hil. Nashim perek 1 who seems to forbid pilageshut
> (but see Hil. Melachim 4,4 where he does permit under limited conditions)
> almost all the Rishonim do not forbid pilageshut - not that they actively
> support the concept.

As is always the case, there are a few who speak out on a topic, and many who do
not - one cannot necessarily co-op all that say nothing to be on a particular
side.  Majority and minority are always taken from the group that have something
to say on the topic.  There are a limited number of Rishonim who discuss the
topic - others who forbid concubinage are of course the Rivash Siman 395 and the
Radvaz Chelek 4 siman 255 - the Ramban would seem to regard there as not being
an issur, (although as you mention, not necessarily good social consequences).

> Yes, there are very few Acharonim speaking out in favor, but there are also
> very few speaking out in public against.

Quite a lot, actually, the Bach, the Knesset Hagedola - in the sense that
"speaking out" is what is written in their commentaries and more.

>> I do not think it unreasonable therefore for R' Teitz to regard what 
>> appears to be a lone voice amongst the Acharonim calling for the 
>> permissibility of concubinage to be a minority opinion (where you 
>> have, for example, the Gra ...

> Do you have a source where the Gra states that pilageshut is forbidden? In
> several mentions, the Gra suggests that the pilagshim of "Caleb & Gidon, and
> the many Gedolei Hador et al. that 'married' pilagshim" could be attributed
> to the RaMBaM's permission of Ama Ivria - a Jewish maid servant.

Yes, and therefore needed a get (as does an Ama Ivria after Yi'ud [designation -
MOD]) - ie he held like the Yerushalmi that a pilegesh involves kiddushin (or
Yiyud) without kesuba - and that was banned by the chachamim.

>> ... and the Igros Moshe regarding it is forbidden).

>> Source?

>> http://daattorah.blogspot.com/2012/07/r-moshe-feinstein-pilegesh-
>> no-kiddushin.html

>> in the last paragraph states R' Moshe's words (in Hebrew):

>> "In any case it is obvious from the words of our masters the Rishonim that
>> the pilagesh is without kiddushin and does not need a get and is permitted
>> ... and that the Yerushalmi and aggadata are only according to those that
>> hold pilagesh with kiddushin." (my translation).

The words you leave out after the words "is permitted" and before the "and the
Yerushalmi" is "to his relatives like one who is seduced".

Rav Moshe is not in this piece permitting pilagshim - he is rejecting the
position of the Yerushalmi that a pilegish relationship requires a get.  This is
his famous position that couples who were married by the secular courts do not
need a get, even though they live together as man and wife (as against Rav
Henkin, who held that they do need a get).  In order to hold this position, he
needs to disagree with the Gra (and Rashi) that a pilegesh needs a get (ie
reject the Yerushalmi).  He does not say that a pilegesh is permitted, any more
than marriage at the secular courts is permitted - only that the consequence of
such a relationship is not to need a get (and hence his relatives are permitted
where marriage would forbid them) and they are therefore like one another in
that regard.

In Orach Chaim chelek 1 siman 155 he has a much longer discussion about pilegesh
(although the context is about eating matza on the day before pesach, and it
being likened to having relations with ones arusah [betrothed (not 'engaged' as
in modern parlance but halachically married though not as yet living together -
MOD]] in the father-in-law's house).  In the course of this he, for example,
rejects the view that the Tur held pilegesh to be permitted (and has some pilpul
which suggests that the Rema's view of the Rosh is also right although he is
less clear on this point. 

> Majority? This is how this discussion started off.

This conversation started regarding how the Rema regarding the Rishonim - in
terms of the modern day, there are numbers of modern poskim (at least in the
Dati Leumi world, you need to ask the Charedi poskim their view) willing to
stand up and be counted as saying it is forbidden, I don't know of any who are
willing to stand up and say it is permitted.

> While many poskim may not feel comfortable endorsing the idea either
> privately or publicly, there does not seem to be too much registered data to
> clearly signify a stance by Gedolei Yisrael.

I suggest you go ask.

> Chana has gone here to great lengths try to explain why not to rock the boat.
> She is right and any relationship outside the norm should be examined by the
> parties involved to make sure that all the pluses and minuses are clear.

> However as mentioned in previous posts, the reason for a pilgashut
> relationship is not just for a non-hassle exit which can be very helpful if
> needed.

> A relation who had married a no-good husband eventually got divorced both
> with a get and civilly only after agreeing in a civil court to pay her
> non-working-ex half her savings accumulated from having worked 30 years.

> Her ex by halacha would have been entitled to all her 30 years of "ma'ase
> yadayim [earnings]", also her house if she would have died first as
> inheritance even though she had children from a previous marriage,

Ma'ase yadaim no - since she can always say "you shall not support me and I will
not work for you".  Inheritance no, if she arranges an appropriate halachic will
(there are ways to ensure it goes to her children or anybody else she chooses).

> and since her ex had no children she would have been forced to do halitza.

Yes, that is the problematic aspect about exit.

> And in essence from the halachic view, except for the wedding and seven days
> of feasting, what is the practical day to day difference between kiddushin
> and pilagshut especially in this era for those many women who are financially
> independent even in times of sickness or child-rearing.

Being in the Torah envisioned relationship.  Again, even Ya'akov Emden, that
strong advocate of pilgeshut, understands pilegshut as a holdover from
pre-Sinaitic times, ie it is a form of pre-Torah relationship, which in his
view, was never forbidden, with halachic marriage being layered on top as part
of what it meant to get the Torah.

> Perhaps the real reason for getting married is that in case of breakdown, the
> parties involved are also governed by state laws.

But for that you don't need Torah at all, you just need the civil laws (which,
as your relation found, may mean she has to pay half of her earnings).   And
entering into any relationship may mean you end up abused and the subject of
domestic violence, and find it emotionally difficult to leave before he kills
you.  Does the fact that there are controlling, awful men out there who kill
mean that a woman should never enter into a relationship at all?




From: Sammy Finkelman <sammy.finkelman@...>
Date: Wed, Apr 13,2016 at 04:01 PM
Subject: Halachically married without civil marriage

Carl A. Singer wrote (MJ 62#77):

> In the common cases within contemporary communities those "halachically 
> married without civil marriage" are by no means "single mothers." They are for 
> all intents and purposes within their community married and living within what 
> we might consider a normal family / marital relationship.

This is usually done to avoid the complication of a possible civil divorce. I
know of two cases. In one case a man got divorced but did not want to get
legally married a second time. In another case, a man did not want to get
married, but to satisfy the father of the bride, I think, got married
halachically. That broke up.

I read somewhere that in New York State, in 1944, Rabbis made a decision that
they would not perform any marriages that were not also civil marriages, but
this may have faded away with time and the example of certain Chassidim


From: Irwin Weiss <irwin@...>
Date: Thu, Apr 14,2016 at 08:01 AM
Subject: Marital Rape

Dr Russell Jay Hendel (MJ 62#78) has invited me to respond to a variety of
examples to see how certain acts are treated in secular law. (He also
complimented me saying that I have made valuable contributions to this thread -
I thank him for the compliment)

This is a really complex question for several reasons, since we have 50 states
and Washington DC - the issues are treated differently in the different
jurisdictions.  Then, we have both civil law (law of torts) and the criminal law.

Disclaimer 1:  I am a lawyer in Maryland, and thus anything I say relates solely
to Maryland, and you should not assume that it applies in New York, California
or elsewhere.

Disclaimer 2: I practice only in the realm of civil law, so, while I am not
bereft of knowledge of criminal law, I am far from an expert.

History: In Thompson v. Thompson, 218 U.S. 611 (1910), the United States Supreme
Court held that a pregnant wife who was physically beaten by her husband could
not sue the husband.  The court said that her remedy would be to go to the
criminal courts or seek a divorce. She could not sue in civil court for damages.
There were three dissenters in that opinion.

The law of the US has changed since 1910.  

In Maryland, in about 1983, our courts held that a spouse could sue a spouse
even for negligence.  Say, for example, the husband was driving a car and went
through a red light, causing an accident. The wife was a passenger and was
injured. Since 1983, which isn't that long ago, Maryland permits a civil suit
for negligence by one spouse against the other. Earlier than that, Maryland
recognized a civil suit for an intentional assault. So, in theory, the civil law
would permit a spouse to sue a spouse for this wrong. (A wife could sue a
husband and vice versa). In practicality, it doesnt make a lot of sense to do
so, unless there is insurance to pay the damages.  (I have a case now where my
client, the wife, is suing her husband in a car accident case. He made an
illegal left turn and a terrible accident ensued. She was in the hospital, etc.)

With regard to the criminal law in Maryland, I would refer Dr. Hendel, and
anyone else interested, to the case of Lane v. State, decided in 1997 by our
highest appellate court. The husband testified that the two had a good marriage,
shared the same bedroom, vacationed together, and enjoyed sexual intimacy. The
wife testified that they had a bad marriage and that they had talked about
separating for a year or so, slept in different places in the home and had not
had sexual intimacy for a year. Her testimony was that Mr. Lane attacked her
sexually while she was sleeping. (Apropos of the initial portion of this
thread). The trial judge (it was a trial with a judge and not a jury) convicted
Mr. Lane, apparently believing the wife's version. (I knew the trial judge. He
was very conservative in a conservative part of our state) The appeals court, in
an opinion by Judge Wilner, who attends a large modern Orthodox shul here in
Baltimore, affirmed the conviction. The court's opinion  cited the old rule that
a husband could not be convicted of raping his wife.
Sir Matthew Hale in his "History of the Pleas of the Crown" ruled that the
husband cannot be guilty of a rape committed by himself upon his lawful wife,
for by their mutual matrimonial consent and contract the wife hath given up
herself in this kind unto her husband, which she cannot retract. (Sir Matthew
Hale, Historia Placitorum Coronae 628, 1st Amer. Ed. 1847). Hale himself gave no
further explanation of that statement, but his proposition seems to be that

(1) there is implicit in the marriage contract an irrevocable consent of the
wife to sexual intercourse with her husband, 

(2) because such intercourse occurring during the marriage is thus, by law,
consented to, it is not unlawful, and 

(3) because it is not unlawful, it cannot constitute rape.

(Lane v. State, 348 Md. 272, 279-80, 703 A.2d 180, 184 (1997).  Hales work dates
from the 17th century or so.)

Then, noting legislative changes over the ensuing years, Judge Wilner went on to
conclude (for a unanimous court) that to the extent a person, including a
husband, may be convicted of substantive rape offenses, he or she is also
subject to prosecution for attempting to commit those offenses against another
person, including his wife. 

So, in practice, does any husband actually get convicted of raping his wife? 
Well, Mr. Lane was convicted of this in 1995 and the conviction affirmed.  

Its a lot more complicated than this, but a 20 page explanation is beyond my
capability and no one would read past this point anyway.

Irwin Weiss


From: Martin Stern <md.stern@...>
Date: Tue, Apr 12,2016 at 04:01 AM
Subject: Tallit before marriage (was Under age Marriage)

Mark Steiner wrote (MJ 62#77):

> I recently heard an interesting lecture by Rabbi Prof. Eric Zimmer, an expert
> in the history of Ashkenaz.  He asserted that the custom of starting to wear a
> tallit from the wedding derived from the pre-crusade custom of marrying before
> Bar Mitzvah.  That is, the hatan started even before Bar Mitzvah if he got
> married.  Nobody thought of delaying wearing the tallit till a "delayed"
> marriage as today.

I find this extremely implausible but would like to see Rabbi Prof. Eric
Zimmer's sources before making a final judgement.

In any case it is not just German Jews who put on a tallit gadol before
marriage - this is also the practice of most Sefardim.

It sounds very suspiciously like an East European Ashkenazi trying to
'explain' why German Jewish customs are different from their 'correct' ones.

Martin Stern


From: Robert Schoenfeld <frank_james@...>
Date: Wed, Apr 13,2016 at 11:01 PM
Subject: Under age Marriage

Martin Stern wrote (MJ 62#77):

> Robert Schoenfeld wrote (MJ 62#76):

>> I remember reading that in Yemen to avoid orphans from being converted
>> to Islam children as young as a few months if orphaned were married off. They
>> were allowed to get a get when the attained bar or bat mitzvah status.

> These might have been completely fictitious marriages arranged to 'fool' the
> Muslim authorities in order that they should not seize these unfortunate
> children. It is therefore probable that no get was even needed to 'dissolve'
> the 'marriage'. This may, therefore, not be relevant to our discussion of
> under age marriage.

As I remember they were real marriages, however it was easier to get a get than
normal marriages. This is just one quote I found on a quick search:


"They came in family groups. In Yemen it was not unusual for a girl of nine to
be wed to a young boy of fourteen or an older man of sixty. This was due partly
to a rule in Yemen that orphans were taken to an orphanage to be raised as
Muslims. Only if they were married were they allowed to continue to live without
forced conversion, hence, the many child marriages. In addition early marriage
provided protection for a girl against being taken forcibly as a wife by a
Muslim who viewed the forced conversion of a Jewess to Islam as a positive act
which both served to eradicate infidels and populate Islam."


End of Volume 62 Issue 79