Volume 62 Number 80 
      Produced: Sun, 17 Apr 16 00:51:59 -0400

Subjects Discussed In This Issue:

Concubinage Relationship (2)
    [Dr Russell Jay Hendel  Chana Luntz]
Halachically married without civil marriage 
    [Steven Gold]
Marital rape 
    [Sammy Finkelman]
Some thoughts on An'im Zemirot 
Under age Marriage 
    [Martin Stern]


From: Dr Russell Jay Hendel <rashiyomi@...>
Date: Thu, Apr 14,2016 at 09:01 PM
Subject: Concubinage Relationship

The purpose of this posting is to present the explanation of the Rav (Rabbi
Joseph B. Soloveitchick) of the prohibitions of cohabitation outside of marriage
(concubine) which I started to do in my initial submission (MJ 62#66).

Susan Buxfield asked (MJ 62#67):

> Is there a documented source for the "fallacy" as understood by Rav Joseph
> Soloveitchick?
Most of the Rav's points can be derived from logic and sources. It took me a
while to write this up in a short (mail-jewish) form. My apology for not
answering Susan sooner (MJ 62#67 was published around the beginning of March).

In this posting I will explain 6 items:

I: Prohibition of a positive commandment on living together:

Rambam, Ishuth 1:1, explains that before the Torah was given a man could meet a
woman and they could then live together. Now, however, there is a requirement to
"acquire" the woman through a kiddushin process.

It immediately follows, that two people living together have violated the
positive commandment of kiddushin (acquisition). This is clearly stated in
Ishuth 1:1.

II: Negative prohibition on living together:

Rambam, Ishuth 1:4, further explains that the prohibition of "kedayshah"
(roughly translated "prostitution") applies to any relationship outside of marriage.

It follows, that according to the Rambam, two people living together violate two

a) The negative prohibition of prostitution, 

b) the positive commandment of kiddushin.

III: (Apparent) dissent of the Raavad:

The Raavad, does dissent to Rambam on 1:4 but does not dissent to Rambam on 1:1.
The Rav explains that the Raavad never had the intention of permitting a
concubine. Rather the controversy is as follows:

a) Rambam holds that 2 people living together violate two laws: prostitution and
requirement of kiddushin (acquisition)

b) Raavad holds that 2 people living together violate only one law: the
requirement of kiddushin.

Thus the Raavad does dissent from the view that two people living together
violate the prohibition of prostitution. However, Raavad does not dissent on
Ishuth 1:1 and there is no reason to believe he dissents to something explicit
in the Talmud in many places. Thus the Raavad must be assumed to see people
living together as violating the requirement of kiddushin (acquisition).

[A note to Susan and others who may want further clarification: Throughout
the Talmud in discussion of many issues, one component of a prohibition is
the numbers of laws violated. Disagreement on the applicability of one law
does not mean that there is general disagreement.]

IV: Permissibility of concubines to kings:

But how then does the Rambam allow concubines to kings. The Rav frequently used
the Brisker method, the conceptual approach developed by his forebears. This 
seeks to find root drivers for laws which enable one to ascertain applicability
in other contexts.

In this case, Kiddushin, *permits* the couple to live together because a formal
act of *acquisition* has taken place. (These days it is done through an object
of monetary worth such as a ring though it can also be done through a
contract-deed. The Talmud at the beginning of Kiddushin discusses a variety of
acquisitions). One aspect of acquisition is prohibition on others. Thus if I buy
a watch then that watch is mine; it also does not belong to "others" (They would
violate the prohibition of theft if they took it).

With this analysis in mind, one should recall that royal consorts are prohibited
to other men. For example, 2 Sam. 20:3 indicates that the concubines who
Abshalom slept with became "living widows" "tied up" till their deaths. 

It follows that intimacy with the king has the same prohibitive effect on other
people as does an act of acquisition by a layman; it prohibits the woman to
other people. It would then follow that the king's consorts are not a violation
of the requirement of kiddushin which has as its root drivers "acquisition" and
"prohibition on others"

However, no such "acquisition" status would apply to concubines of layman. For
this reason, concubines are prohibited for layman.

V: Exegetical comments on the prohibition of prostitution (This is mine,
not the Ravs):

On the Rashi website (Rashiyomi.com), 10 rules accounting for all exegesis are
presented. One of them is the Rabbi Ishmael rules which govern biblical style.
More specifically, the Rabbi Ishmael rules govern whether biblical texts are
interpreted restrictively or expansively. Perhaps an example would clarify

a) Dt. 25:4, "Do not muzzle an *ox* while threshing"

The Talmud takes this statement and states as final law that it applies to any
animal or beast. So for example

b) "Do not muzzle a donkey while wheeling cargo."

No one is claiming that the Hebrew word SHOR (Ox) means donkey. Clearly SHOR
means ox exclusively. However, the Rabbi Ishmael rules require generalizing any
verse without a restriction (that is without a restriction due to a
general-specific or specific-general format). This is clearly stated in Rashi
Pesachim 6 and all Rishonim agree with this. Legal scholars would state that (a)
is stated casuistically and that Jewish law is casuistic (Case law) - it is
intended to be generalized.

In a similar manner Dt. 23:18 states "There shall be no (male or female)
prostitutes among the Jewish people". No one is claiming that the word
'kedayshah' means premarital living together. Clearly, according to all, it
means a 'prostitute'. But the law must be taken casuistically as indicating
generalization. We therefore understand the Rambam's viewpoint that the
prohibition of 'prostitute' generalizes to any living together without kiddushin.

But the Raavad also holds that all biblical verses generalize unless there is a
limitation. I do not remember how the Rav interpreted the Raavad's dissent on
Ishuth 1:4. I also don't have a clear punchy way of defending the Raavad as I
write this. However the controversy cannot be whether the exegetical rule of
generalization applies since this rule is universal.

VI: Some concluding remarks on Halachic process

A summary of the above is the following:

a) Every cohabitation must be preceded by an act of acquisition such as giving a
ring or writing a contract

b) Additionally, kings can use the status of royal consort as an acquisition.

c) Dt. 23:18, while specifically prohibiting prostitution, must be interpreted
casuistically to prohibit any extramarital cohabitation

d) The Raavad dissents on this but a full defense of the Raavad must include how
he generalizes this verse. The Raavad however never dissented on the requirement
and obligation of Kiddushin (acquisition).

In the discussions on cohabitation, several people have simply cited
authorities. Real halachic process must be based not on counting opinions but on
an analysis of underling root causes and drivers with an account of how each
side deals with universally accepted biblical laws. Good examples of such an
analysis occur in the Beth Yosef and Aruch Hashulchan. I have not seen such an
analysis in Mail Jewish on the cohabitation issue.

I hope this clarifies the position somewhat and injects new perspectives


Russell Jay Hendel;


From: Chana Luntz <Chana@...>
Date: Fri, Apr 15,2016 at 05:01 AM
Subject: Concubinage Relationship

I wrote (MJ 62#79):

> 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:
>> ...
>>> ... 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.

I should also have added that the relevant teshuva, if people want to look
it up themselves, is Even HaEzer chelek 1 siman 74.

> 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. 

But then inexplicably  I managed to leave off the last paragraph I had meant
to write, and failed to notice it when moderated.  What I meant to add to
the above was:

And then in Igeros Moshe Even HaEzer (1:55) he discusses a case where a
halachically married man and a woman had separated and each married another
in the secular courts and then the woman had disappeared, and the question
of the man was to what lengths does he have to go to give her a get, given
that he can't find her, and is there some mechanism for giving her the get
without her actual presence.  But for our purposes the key section is the
final paragraph which states:

"and until he will arrange the get and it is effected, it is forbidden for
him to be with his second wife that is permitted by the secular courts, it
is forbidden from the law of the prohibition on a penuyah [single girl] which
is when she is without kiddushin from the Torah and a pilegesh [concubine]
is forbidden as can be found in the Rema siman 26 s'if 1 and we can derive
this from that which it says in numerous places that there is a chazaka
[presumption] that a man does not have relations which are for zenus
[promiscuity], and if a pilegesh is a thing that was really permitted there
is no relevance to this chazaka.  And also there is the cherem of Rabbeinu
Gershom [which applies] even if she is without kiddushin, that also [it was]
fixed that a pilegesh is within the general category of the cherem, even
though there is a prohibition [against concubinage] without this."

That is, it is very clear from his teshuvos that Rav Moshe held that

(a) pilagshut [concubinage) is forbidden, and 

(b) he follows the Rema, and agrees with the Rema - just not with those who hold
that a pilegesh relationship, if entered into in violation of the prohibition,
needs a get.




From: Steven Gold <steveng1058@...>
Date: Fri, Apr 15,2016 at 11:01 AM
Subject: Halachically married without civil marriage

Sammy Finkelman wrote (MJ 62#79):

> 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

Let's once and for all put something in perspective: I cannot speak for other
jurisdictions but in the State of New York for an officiant (read mesader
kiddushin) to solemnize (perform) a marriage without first being given a license
secured by the couple to do so, is a crime - a misdemeanor punishable by up to
one year in jail and up to $500 fine.

What follows is the text of the law in NYS Domestic Relations Law Section 17:

"If any clergyman or other person authorized by the laws of this state to
perform marriage ceremonies shall solemnize or presume to solemnize any marriage
between any parties without a license being presented to him or them as herein
provided or with knowledge that either party is legally incompetent to contract
matrimony as is provided for in this article he shall be guilty of a misdemeanor
and on conviction thereof shall be punished by a fine not less than fifty
dollars nor more than five hundred dollars or by imprisonment for a term not
exceeding one year."

Steven Gold


From: Sammy Finkelman <sammy.finkelman@...>
Date: Fri, Apr 15,2016 at 03:01 PM
Subject: Marital rape

Leah S. R. Gordon wrote (MJ 62#72):

> According to the law of the land in the United States, as well as what I would
> consider to be a reasonable person's opinion, a person who is asleep cannot
> legally consent to sexual relations.  Hence, it is rape.  That is what "rape"
> means - sexual use of a person without his/her consent.

If this is "rape," then a man can be raped, too. The Torah gives an example:

Lot's daughters, two nights in a row, gave him a lot of wine to drink, and they
slept with him, each one for one night, and he didn't know when they laid down
or when they left, and they became pregnant, as they had planned.

See: http://www.mechon-mamre.org/p/pt/pt0119.htm

Now I would think the main thing wrong here is the intercourse itself - the rape
factor makes one party innocent.


From: Anonymous
Date: Fri, Apr 15,2016 at 09:01 AM
Subject: Some thoughts on An'im Zemirot

In my experience, in most orthodox minyanim An'im Zemirot is recited with the Aron
Kodesh opened. Why? What's so special? 

Some minyanim have moved it to before reading the Torah instead of the very end
of davening to afford it more respect. By the end of davening everyone is
putting away their tallit and can't wait to get home or to the kiddush.  

In my experience it is recited/performed by kids. I've only seen little boys
lead it until relatively recently when my minyan has a seven year old girl do
it. And just last week a group of little kids formed a choir and did it in
unison. And then, fasten your seatbelts, since the boys were wearing a talit,
the little girl had one too.  What do you make of this?

[This was submitted by a member who wishes to remain anonymous for fear of
social ostracism by "those who would think his congregation had become 'feminist'
or 'egalitarian', or, God forbid, worse - 'Open Orthodox'!" (his words) - MOD]


From: Martin Stern <md.stern@...>
Date: Fri, Apr 15,2016 at 04:01 AM
Subject: Under age Marriage

Robert Schoenfeld wrote regarding under age marriages in Yemen (MJ 62#79):

> 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."

This is not strictly relevant to our discussion which concerned whether a
boy below bar mitzvah could contract a marriage" and this quote only refers
to "a young boy of fourteen".

As regards girls, a father can marry off his daughter according to Torah law
by accepting kessef kiddushin [nowadays we use a ring with adult brides] on
her behalf at any age.

If the father died, the Rabbis instituted a quasi-marriage arranged by her
mother or (adult) brother and performed in the same way, in order that the
minor girl would not be unprotected. However she had the option when she
came of age to annul this marriage by making miun [essentially simply
stating in front of witnesses her wish to leave her 'husband'] and did not
require a get. 

This is probably the situation to which Robert referred in his earlier
posting (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 They
> were allowed to get a get when the attained bar or bat mitzvah status.

Where the orphan was a boy, no such an arrangement was possible which was
why I suggested in reply (MJ 62#77):

> These might have been completely fictitious marriages arranged to 'fool' the
> Muslim authorities in order that they should not seize these unfortunate
> children.

Martin Stern


End of Volume 62 Issue 80