Volume 62 Number 88 
      Produced: Sun, 22 May 16 01:03:59 -0400

Subjects Discussed In This Issue:

"Kinyan" in the Context of Marriage (was Concubinage Relationship) (3)
    [Joseph Kaplan  Harlan Braude  Dr Russell Jay Hendel]
    [Dr Russell Jay Hendel]
Keil Malei Rachamim/Yizkor 
    [Harlan Braude]
Sefirat Ha'omer 
    [Harlan Braude]
Some Thoughts on An'im Zemirot (2)
    [Aryeh Frimer  Dr Russell Jay Hendel]


From: Joseph Kaplan <penkap@...>
Date: Thu, May 19,2016 at 09:01 AM
Subject: "Kinyan" in the Context of Marriage (was Concubinage Relationship)

Saul Mashbaum's thoughtful analysis (MJ 62 #87) of haisha nikneis (the woman is
acquired) concentrates on the verb, nikneis, and argues that, in this context,
it connotes an agreement and not an acquisition. I wonder, though, about the
other word in the phrase  - haisha (the woman) which is the object. When you
have an agreement, there are two (or more) parties - Saul and I agree . . . (or
not J). An agreement doesn't happen to one person.  Here, however, the syntax
seems to me (and I'm certainly no expert) to mean that something is happening to
the woman, not that the woman is doing something.


From: Harlan Braude <hbraude@...>
Date: Thu, May 19,2016 at 04:01 PM
Subject: "Kinyan" in the Context of Marriage (was Concubinage Relationship)

Saul Mashbaum wrote (MJ 62#87):

> The identification of 'kinyan' with 'purchase', in the framework of a
> discussion of marriage, has lead to much misunderstanding, confusion, and
> indeed resentment by women that in Judaism the man 'buys' the woman, and
> presumably 'owns' her in some sense. 
> ...
> Most broadly, a kinyan is an act which formally finalizes an agreement, and
> makes it binding, such that neither party can retract on his own without
> consequences.

Language is a very inefficient form of communication. There's just too much room
for misinterpretation even among those sharing the same cultural and educational
background. Translating terms from one language to another just adds yet another
layer of confusion.

The term "kicha" (literally, to take?) is cited by the Talmud as the linguistic
origin behind the use of money in the marriage procedure and is based on the
incident of Avraham Avinu obtaining (purchasing?) the field from Ephron
HaChittie. The quickest (not necessarily the best) extrapolation from that
incident aside from the method of exchange (monetary compensation), is the
apparent end result: the purchase of property (Avraham and his descendants now
"own" the field formerly "owned" by Ephron).

That's certainly how we understand the term "kinyan", though how that term came
into use in the context of marriage is less obvious (yes, the Talmud uses this
term, too). In any event, it's interesting that Jewish law does not categorize
marriage as property acquisition or it would be in the Choshen Mishpat section
of the Tur/Shulchan Aruch rather than separately in Even Ha'ezer.

Here's an interesting analysis of kinyan:


My point here is that even though a term is used in both commercial and 
non-commercial contexts, that alone is not sufficient grounds to conclude that 
everything that applies to one applies equally to the other.

Saul proposes to translate "kinyan" as "agreement" instead of "purchase". While
it may sound less "offensive" to modern ears, I don't think doing so resolves 
anything. What we need is a better understanding of the underlying mechanism the
Torah instituted for men and women to get married and not get side-tracked
reacting to the implication of poorly translated terms.

From: Dr Russell Jay Hendel <rashiyomi@...>
Date: Thu, May 19,2016 at 07:01 PM
Subject: "Kinyan" in the Context of Marriage (was Concubinage Relationship)

Saul Mashbaum (MJ 62#87) raises the issue that the Hebrew word Kinyan can mean:

1) Acquisition

2) Agreement

Saul suggests that the marriage Kinyan is a marriage agreement not a purchase by
the man of the woman. Saul also points out that calling marriage a purchase can
cause confusion and resentment.

As a partial answer, I have never said that the man 'buys' the woman's body. I
have said he purchases participatory rights on the women's body. But Saul would
probably note that this implies some type of ownership.

I also note that Saul's posting reflects a general tendency in American circles
to regard marriage as an egalitarian matter. One offshoot of this perspective is
 ring-exchange ceremonies. I am not the first to say that this is contrary to
halacha and the Jewish perspective. Judaism does believe separate but equal is
sometimes needed even if American law does not acknowledge it. But Saul has
still stated a cogent argument. So let us analyze it.

The legal idea of Kinyan meaning agreement is found in Rambam, Sales, 6: 11-14.
The Rambam explains there that for certain acts like annulling a debt "a Kinyan"
has no validity. The Rambam continues by acknowledging the practice to do a
Kinyan for these matters and says that the whole purpose of the Kinyan is to
show seriousness of intent.

To go back to Saul's remarks: If someone owes me money and I make a Kinyan to
annul it, that Kinyan simply refers to an agreement between us.

The Rambam proceeds further that for certain things a Kinyan has no meaning
whatsoever (not even agreement). The Rambam gives as examples an agreement to
become partners or an agreement to journey to a particular place to do business.
The Rambam gives a criteria why the Kinyan as agreement is meaningless here.

> He did not grant possession to an object or its principle yield.

By using this test we can return to marriage and decide whether Kinyan refers to
purchase or agreement.  Under Jewish law, if a married woman gets into bed with
her husband, she grants him the right to for example have unnatural relations
(even though his wife expected the opposite) or to kiss where he wants (even
though his wife objects). In other words, the husband has purchased certain
rights on the woman's body. He has the right to do things even though she
objects. Consequently, we must call this Kinyan, purchase and possession.

Furthermore, the Talmud at the beginning of Kiddushin derives all laws of Kinyan
in marriage from the word 'Take' in Deut 24:01 "When a man takes a woman". The
Talmud compares marital acquisition to other acts of acquisition.

Since the man acquires rights on the woman's body he didn't have before we must
refer to this as an act of purchase.

But what about the woman and the misunderstanding and resentment that Saul mentions?

I would therefore say that Jewish Marital Law rests on 3 principles:

1) The man purchases certain rights on the woman's body

2) But the man is prohibited from causing bodily harm or pain (e.g. an agunah
once mentioned that her husband poured ice cold water on her in bed; this causes
pain and the husband has violated the prohibition of torts).

3) The man is biblically obligated to satisfy his wife and make intimacy, in the
frequency that she has a right to, pleasurable for her.

Thus we see a balance here between rights and protections.

One can still ask, Why not simply make everything egalitarian. This of course is
an interpretive question, a question on the reasons for the commandments. I
would simply say the following:

A) men and women are axiologically recognized as have the right to achieve
pleasure but

B) men and women achieve pleasure in different ways. (One popular formulation
found in many books on these matters conceptualizes this difference using the
dimension of time; women have a greater need to take time to achieve a state of

C) men and women have different weaknesses. (One popular formulation found in
many books is that women have a weakness of vulnerability while men have a
weakness of the need to achieve or perform - here vulnerability and performance
discretely refer to specific physiological events).

Since men and women are different but have equal right to pleasure the law would
do a disservice to create an egalitarian atmosphere.  Instead Jewish Law
protects female vulnerability and assures sufficient possession to protect men's
need for performance.

More can be said on this but these are the basic principles.

Dr Russell Jay Hendel


From: Dr Russell Jay Hendel <rashiyomi@...>
Date: Thu, May 19,2016 at 07:01 PM
Subject: Homosexuality

Martin Stern (MJ 62#87) mentions certain (non-Jewish) suggestions that the
prohibition of homosexuality in Lev. 18:22 is only a prohibition of homosexual
relations connected with idolatry, a sin mentioned in Lev. 18:21. Martin then
gives an exhaustive analysis and invites comments.

I just wanted to make some extra points:

1) The Molech ritual mentioned in Lev. 18:21 involves passing children through
a fire and does not involve any homosexual practices. Consequently, one can't
see in the juxtaposition of Lev. 18:21-22 a prohibition of homosexuality related
to idolatry since the biblical text is not speaking about it.

2) An important exegetical principle in dealing with groups of prohibitions is
concluding verses. Lev. 18:24 states, "Don't defile yourself with *any* of
these". The Word *any* identifies each prohibition as a separate prohibition
independent of the others.

Dr. Russell Jay Hendel


From: Harlan Braude <hbraude@...>
Date: Thu, May 19,2016 at 04:01 PM
Subject: Keil Malei Rachamim/Yizkor

Joel Rich wrote (MJ 62#87):

> A while back I did a shiur which touched on the efficacy of Keil Malei 
> Rachamim or Yizkor. I found one source which said it was preferable to give 
> tzedakah before making a Keil Malei Rachamim rather than pledging to do so. 
> This sounded extremely rational; deliver rather than promise. Anyone know why 
> the standard practice developed to promise tzedakah rather than give it prior 
> to our request of HKB"H?

Well, one obvious answer is that we recite the keil malei prayer at Yizkor
services on holidays when on the spot donations are impractical. To avoid 
confusion, we opt for doing things in a consistent way (mishum lo plug), unless
there's compelling reason to deviate.


From: Harlan Braude <hbraude@...>
Date: Thu, May 19,2016 at 06:01 PM
Subject: Sefirat Ha'omer

Carl Singer wrote (MJ 62#87):

> I don't know the source of this "minhag" if it can even be called that but 
> after (weekday) morning davening, our unoffiical gabbai makes announcements. 
> For example this (Friday) morning he gave last night's omer count, tonight's 
> candle lighting time and, having been handed a note, a vort that would be 
> taking place on Sunday.

Not everything that goes on in a shul necessarily reflects some official minhag or
halacha. Sometimes, it's just about opportunity. Namely: there's an audience.

Regarding the counting of the Omer, it's not uncommon to hear a public reminder
in the morning for those who may have forgotten the previous night, since most
opinions hold that one may continue to recite with a bracha as long as a complete
day wasn't missed.

As for other announcements, the better question is why not? I've heard
announcements ranging from warnings that traffic cops were issuing tickets to
appeals to non-members to contribute financially and even personal appeals for
financial assistance.

It's just life in the synagogue lane.


From: Aryeh Frimer <Aryeh.Frimer@...>
Date: Thu, May 19,2016 at 04:01 AM
Subject: Some Thoughts on An'im Zemirot

First, allow me to apologize for maintaining "Radio silence" over the past two
weeks, but "life" (personal and professional obligations) got in the way with my
responding on Mail-Jewish. On a personal note, it has been a bit nostalgic to
interact again with many of the same individuals who made contributions to
Mail-Jewish more than 25 years ago!

In my contribution (MJ 62#82), I shared a decision of the halacha committee of
the Rabbi Jacob Berman Community Center which prohibited minor girls from
leading An'im Zemirot or Adon Olam. The decision was based on the fact that
Hazal forbade a community to appoint as their permanent hazzan one who lacks the
signature of adulthood and maturity of a full beard - which is at about 20 years
old. Nevertheless, from time to time a teenager can be asked to daven for the
community provided he is above 13. The custom to allow minors to recite certain
minor portions of the davening (e.g. An'im Zemirot or Adon Olam) is based on the
concept of Hinukh [to educate them of how to function as a Hazan]. There is no
obligation of hinukh on minor females regarding mitsvot and rituals that will
not be obligatory - and certainly if they are forbidden - when the child becomes
an adult.

In the endnote to this last critical statement, we write that it is forbidden
for girls to lead the community in the singing of An'im Zemirot and Adon Olam is
something that is forbidden to them as adults, as pointed out by Martin Stern
(MJ 62#87). Leading contemporary posekim have confirmed that having women lead
communal prayer rituals is prohibited. We closed that note by referring the
reader for further discussion, see the addendum to "Women, Kri'at haTorah and
Aliyyot (with an Addendum on Partnership Minyanim)" Aryeh A. Frimer and Dov I.
Frimer, Tradition, 46:4 (Winter, 2013), 67-238, online at:


Dr. Russel Jay Hendel in his clear methodical style criticizes our conclusion
based on the argument that An'im Zemirot and Adon Olam are not the type of
prayer required by Hazal. The truth is that neither is Kabbalat Shabbat, nor
much of what we say in 'Davening" - the regular communal prayer service. It is
just for this reason that, for reasons of brevity, we referred the reader to
our 2013 Tradition article. And as Dr. Hendel so astutely pointed out, the issue
of Kevod haTsibbur (honor of the community) - the reason why the rabbis of the
Talmud (Megilla 23a) forbade women's Aliyyot - is intimately involved here.

The Tradition article cited demonstrates that the vast majority of Poskim
maintain that Kevod haTsibbur stems from women's total lack of obligation in
public Torah reading. This non-obligation expresses itself in one of two ways:

1) through considerations of tsni'ut (modesty), or 

2) via zilzul ha-mitsva (disparaging or belittling ones halakhic obligation). 

The first, Tsni'ut, school argues that since women are not obligated in keri'at
ha-Torah, they should not unnecessarily be at the center of communal religious
ritual.  The synagogue is the one place that we try to sanctify our thoughts,
and we make particular efforts to avoid all sexual distraction.  The concern
here is for unnecessarily being at the center of communal (not private)
religious ritual.

The second, Zilzul ha-Mitsva, school maintains that the men, who are obligated
in keri'at ha-Torah, should be the ones fulfilling the mitsva - not those that
are not obligated. To act otherwise reveals that one does not value their mitzva
obligations - reflecting zilzul ha-mitsva.  This analysis also leads to the
conclusion that in the case of women's aliyyot a community cannot choose to set
aside kevod ha-tsibbur. A congregation can not simply say: Hazal were concerned
about tsni'ut or zilzul ha-mitsva and hence forbad women's Aliyyot - but we won't.

In the addendum to this article, we dealt with various practices of Partnership
Minyanim in which women are called to recite the four megillot, Kabbalat
Shabbat, and pesukei de-zimra . Leading contemporary posekim (including R.
Aharon Lichtenstein, R. Nachum Rabinovitch, R. Asher Weiss, R. Avigdor Nebenzahl
and others) have confirmed that having women lead such public rituals would at
least be a violation of kevod ha-tsibbur according to any of the definitions
discussed above, though other prohibitions may well be involved. The
zilzul ha-mitsva view of kevod ha-tsibbur maintains that since it is the men who
are obligated in public prayer rituals, they should be the ones fulfilling them
- not women who are not at all obligated. To have women lead the community in
fulfilling these communal rituals and obligations would reveal that the men-folk
do not value their communal responsibilities and obligations, and that is a
serious issue of zilzul or bizyon ha-mitsva. As before, there is no issue of
kevod ha-tsibbur when a male minor is called to lead pesukei de-zimra or
Kabbalat Shabbat because this falls squarely within the ambit of hinnukh. The
Tseni'ut School, on the other hand, argues that because of possible sexual
distraction, women should not unnecessarily be at the center of any communal
religious ritual.

The source and nature of these communal rituals and obligations is not critical,
argue these posekim. It may be biblical, rabbinic, custom, or mitsva
min ha-muvhar. The recitation of the megillot, Kabbalat Shabbat, and certainly
pesukei de-zimra in shul are long standing communal minhagim of at least several
hundreds of years, while others go back more than a millenium. The crucial point
is that they are normally being said as part of the communal prayer.

While woman are obligated in private prayer, they are not, as a rule, obligated
in public prayer rituals. Hence, there is no obligation of hinnukh on minor
females to say or lead such communal prayer rituals or customs. If Adon Olam or
An'im Zemirot are regularly said as part of the communal davening, as they are
around the world, then kevod haTsibbur precludes women of all ages from leading
them for the community.

Prof. Aryeh A. Frimer
Chemistry Dept., Bar-Ilan University
Ramat Gan 5290002, ISRAEL
E-mail  <Aryeh.Frimer@...>

From: Dr Russell Jay Hendel <rashiyomi@...>
Date: Thu, May 19,2016 at 07:01 PM
Subject: Some Thoughts on An'im Zemirot

Martin Stern (MJ 62#87) offers a new insight on why minor girls should be
prohibited from leading the congregation in An'im Zemirot. Martin concedes
that the issue is

> not whether it is a prayer per se

but rather

> I think that the last two words "saying it" are crucial. The problem is with
> minor girls SINGING An'im Zemirot, something they will be prohibited from
> doing in the hearing of men when they are adults and which men may even be
> prohibited from hearing while the girls are still minors according to many
> authorities

This is an excellent point that has not been brought up previously.

First: Martin has not negated, using this singing argument, some of the
practices I mentioned such as:

1) Women / minor girls leading the congregation in Ashray

2) Women /minor girls leading the congregation in Av Harachamim

3) Women / minor girls making the announcements prior to Kiddush.

Let us now analyze the applicability of this singing argument to An'im Zemirot.
As is well known, there are (some) authorities that permit mixed singing of
women and men especially when no particular woman's voice is identifiable. A
common application of this permissibility is in allowing men and women to sing
Sabbath songs together at Sabbath tables. I quickly emphasize, that not all
authorities allow this.

Let us return to An'im Zemiroth. Does the congregation sing An'im Zemirot
together, men and women? Or, are there Sabbath meals where men and women sing

If the answer to any of these questions is yes then there is no reason why a
group of minors - boys and girls - can't lead the congregation in An'im Zemirot.

Note a further point of permissibility. At a minor age, gender is not
identifiable by voice. So children groups singing are not problematic if you
follow the group permissibility rule.

Here is still another perspective: There is no difference between a group of
girls and boys leading the congregation in songs during a 3rd Sabbath meal and
them leading the congregation during An'im Zemirot. Here, I am equating An'im
Zemirot with a Sabbath song.

One final point. Throughout this thread, there has been a discussion on whether
minor girls should be allowed to sing An'im Zemirot or not? But the broader
question, how should women be allowed to participate in the Sabbath service -
has not been addressed. As a simple example, there should be nothing wrong with
even single minor girls leading the congregation in announcements prior to
Kiddush (The prohibition of hearing women sing does not apply to talking).

Dr. Russell Jay Hendel


End of Volume 62 Issue 88