Sunday, January 5, 2020

Prenups VIII – Trei Gadya, Trei Gadya – Part 2: Yeridas HaDoros and the Four Sons of Get Meuseh

Author’s Note – This series has grown way bigger than I first planned it. This is a testament to the complexity of this topic. For this post, it will be very helpful if the reader is at the very least familiar with the opening post of this series. It can be accessed HERE.

Just when I think I only need one more post to complete a topic, something comes up to make it more complicated.

A bit more than a week ago, Reb Dovid Lichtenstein posted another feature about prenuptial agreements on his Headlines blog (podcast) site. I listened to the entire 2 ½ hours and I was taken aback by the one-sidedness and the Halachic distortions and misinformation that was promoted on the episode. Also, the more information that was divulged about the activities of the Yashar Coalition, the more disillusioned I became over them.

Reb Lichtenstein presented a not-completely-accurate picture of the proposal of the Toras Gittin and other parts of Even HaEzer 134. The worst of it was when he tried to explain the relevant Toras Gittin by importing a backdrop “svara” that Toras Gittin wrote in his next segment concerning a different case and he presented it as if it were written in this segment (he did this twice!). As a public service, I will attempt to straighten out these distortions.

For those who are not aware, Toras Gittin was written by HRHG Rav Yaakov Lorberbaum from Lissa (1760-1832) also known as the Nesivos Mishpat (on Choshen Mishpat) and the Chavos Daas (on Yoreh Deah). He is renowned as one of the most authoritative Poskim of his era. Toras Gittin is his work of chiddushim on Masechet Gittin and his Halachic notes on the section of Even HaEzer that deals with Hilchos Gittin. It was published approximately 1813. As a rule, he is clearly a “bar samcha” in psak. (This may be an exception to the rule.)

I initially brought up the proposal of the Toras Gittin in my very first post on the Prenups series. It has been adopted by the Beit Din of America as the key ingredient in their prenuptial ingredient. Very briefly the main idea is this:

The husband at some point can reaffirm the pre-existing support obligations that he has to his wife while simultaneously renouncing her obligations to him. In so doing, he will bring about an uncomfortable lopsided situation which will induce him to give his wife a get. This will not be construed as a recalcitrance “penalty” which could challenge the validity of the get.

As we will see (and have already seen in the earlier posts), the proposal of the Toras Gittin is so obscure and so novel that it is difficult to employ even in its written context. But, for certain, there are absolutely no grounds to employ the Toras Gittin beyond its written context, which is precisely what the BDA is doing.  
To understand this, we must examine the true context of Even HaEzer 134:4 where this Toras Gittin is situated. And to understand this, it may help to understand the concept of “Yeridas Hadoros” as illustrated by the Four Sons of the Haggadah.

The conventional interpretation of the narrative of the Four Sons in the Haggadah portrays them as four brothers of one household or one of four types of sons that any person may be blessed (or cursed) to have. But some meforshim (I don’t have names right now) present a much more profound interpretation that they are actually portraying the decline of subsequent generations (yeridas hadoros).

We start with the grand patriarch – the avi avos – who is the Tzaddik. He personally experienced the redemption from Egypt and the original Korban Pesach. He certainly performs the Passover service meticulously and with gusto. Afterall, he was there when it happened.

The first generation after the tzaddik is the Chacham. He is wise and devoted but not a complete tzaddik. Though he strives to emulate his father and inquires sincerely as to the rituals and he fulfills them, this fulfillment is lacking in full conviction because he did not experience the geulah himself. It’s just second-hand from his father.

The second generation, son of the Chacham, is the Rasha (wicked son). He observes his father and grandfather performing the Korban Pesach but he senses that his father, the Chacham, is acting more out of tradition than faith. As one of even less faith, he refuses even to buy into an antiquated tradition based on an event that happened two generations earlier.

The third generation is the “Tam”. The Rasha is aware of the yearly Korban but he doesn’t bother to transmit the tradition down to his son, the Tam, who consequently remains ignorant and unlearned. Still, the Tam observes his grandfather, the Chacham, performing the Korban Pesach, thus he is aware that there is a tradition that was not taught to him, so he inquires, “What is this?”.

The fourth generation is the son of the Tam. The Tam does not perform the Korban, nor does his father the Rasha. The Chacham is probably in an old age home by now. So the fourth generation son has no knowledge of any tradition of Korban Pesach at all. He is a Sh’eino Yodeah L’Sh’ol. Thereupon, the only remedy is for the community to indoctrinate him from scratch.

With this model, we can look closely at Even HaEzer 134:4.

The subject of this seif is “Get Meuseh” – a “forced” get. Due to the terminology, there is a common misconception about what a “forced get” means. Many of us think that it means that other people cannot physically coerce a man to give a get by brute force as the term “meuseh” implies. But anything less than that is okay. This is not exact.

Despite the stark terminology, the Halacha that brings us “get meuseh” is really that a man must want to give his wife a get. Even if he is not being physically coerced, if it is clear, or even suspected that he does not want to give the get, this is enough to make the get pasul as if he is being forced. This creates a grey area between the extremes of clear consent to give a get at one end (good) and clear coercion to give a get on the other (not good). Like all grey areas there is a lighter grey and a darker grey. Hence the “four sons” – the Shvuah, the Kinyan, the Knas, and the Mezonos.

So, like in the Haggadah, we will begin at the “grand patriarch”, the “avi-avos” of a get meuseh: brute force – holding a shotgun to his head, hanging him out the eighth story window by his ankles, electric cattle prods, the usual. Such a get is invalid by all accounts except in exceptional cases where coercion is warranted. This much is understood.

Aside from this, the Rishonim argue whether direct financial coercion is also considered coercion by which to invalidate a get. The accepted consensus is that indeed it is considered coercion. All this is clear when external parties other than the husband in question are those applying the coercive force and are the catalysts to this get. But what if the husband serves as his very own catalyst and imposes the coercion upon himself? Most of us would assume that this cannot be considered coercion. So we have a surprise coming.

We are now at Even HaEzer 134:4. Here we go:

The son of the first generation- the Shvuah

In EH 134:4 the Mechaber tells us a chiddush that is not mentioned in the Gemara. “If the husband took an oath to give a get, we must release his oath beforehand so that it should not be comparable to force”.

What is the context of this Halacha? What is going on here? Evidently, a man swore to give his wife a get. When? Where? Why? What happened?

We don’t have a clue. The Mechaber does not present any context and this is not even a case discussed in the gemara, so we won’t find any there. Hence, we must on our own assume the most logical context (Occam’s Razor at work).

Apparently, we are dealing with a person whose marriage is currently on the rocks. He cannot tolerate his wife. He wants to be rid of her and the sooner the better. Most likely, the wife is not so eager to get divorced, but her husband is adamant. He is determined to do it and he doesn’t want to give anybody a chance to talk him out of it. So he makes a shvuah that he will divorce her. That’ll do it! (This is the primary reason why anyone makes a shvuah in a typical situation.)

The couple arrive at Beit Din. The wife is begging for Shalom Bayit. Beit Din wants to try to talk sense into the husband: “Don’t be hasty, do a trial separation, go to couples counselling, etc.” The husband won’t hear of it. He wants to give a get and to give it now. BD still tries to calm him down. He tells BD, “I have made up my mind. In fact, I even made a shvuah!” (or this is the point when he makes it). Clearly, this shvuah is meant to take effect immediately.

The Av BD screams out, “A shvuah? Stop the show! Sorry, Charlie, no get. We can’t be sure that you really want to give her a get. Maybe you would reconsider but now that you made a shvuah, you feel obligated. This is not a voluntary get. If you really want to give her a get, we must find some grounds to release you from your oath.”

Do you get this? This fellow truly wants to give a get. He is aching to give a get. He is screaming for it. He can’t get it done fast enough! He made the shvuah all by himself. He is not being forced to give a get and nobody forced him to take the oath. This looks like the furthest thing from a “forced get”. What is happening?

We have now learned that, according to the Mechaber, a forced get doesn’t mean being actually forced. It means giving a get even though you don’t really want to do it. The Mechaber is afraid that if a man took an oath, he may have actually reconsidered, but now that he took an oath and, as long as he is not released and he has absolutely no alternative but to give the get or else face the ultra-severe consequences of transgressing a shvuah, he may not really want to give a get right now despite what he says to us. The Mechaber gives this case a status of “get meuseh” even though nobody is being forced. Quite the contrary!

The son of the second generation – the Kinyan

Nobody argues on the Mechaber at the beginning of this seif. (Note – The Mechaber does not tell us what he holds to be the Halacha if the get was given anyway without releasing the shvuah, but the Rema a bit further on says that bediavad it would be kosher. I suspect the Mechaber would agree.) And here steps in the Rema, not to argue with the Mechaber, but to expand on his chiddush. The Rema adds: “And so is the halacha if he accepted a kinyan to divorce”.

Short and sweet...and mind-boggling. The Rema does not give any additional details or context. So, Occam’s Razor tells us that he is talking in the exact same scenario as the Mechaber except instead of a shvuah, he merely accepted a kinyan – one step down.

So, the logical context is that, here as well, the marriage is currently on the rocks and he is quarreling with his wife. But maybe it is not so one-sided any more. Maybe the wife is also fed up with this marriage and wants out of it. Or maybe she wants it more than he does, but he is totally amenable to it. Ahah! After all these years, they finally found something they can agree on. So, to seal the deal, they take the exact same handkerchief that they held over the mechitzah when they got married and make a kinyan to get divorced. Likewise, this kinyan is meant to take effect immediately.

Arm in arm, the joyful couple goes traipsing off to Beit Din to implement their amicable divorce. But BD gives them a hard time - “Don’t be hasty, do a trial separation, go to couples counselling, etc.” The couple won’t hear of it. They tell BD that they have made up their mind. In fact, he even did a kinyan with her.

Once again, the Av BD screams out, “A kinyan? Stop the show! Sorry, Charlie, no get. We can’t be sure that you really want to give her a get. Maybe you would reconsider but now that you did a kinyan, you feel obligated. This is not a voluntary get. If you really want to give her a get, she must be mochel the kinyan.”

Before we go on, we must understand (A) what is this kinyan, what does it accomplish? and (B) how it is different than a shvuah?

The answer to (A) is very murky. Most other poskim (see Beit Shmuel) do not understand what this kinyan is and cannot substantiate this Rema. As we saw in our previous post, a kinyan can only be applied to a tangible item being transferred or a monetary obligation being owed. One cannot make a kinyan to perform a task or a service or to give a gift. This is called a kinyan devarim and is basically meaningless. Thus, many poskim want to disregard this Rema. Others will need to say that even though a kinyan devarim is not really binding, it does create some kind of a moral obligation that the abrogation of which is highly is frowned upon. Although there is no severe heavenly or earthly punishment, there is a sense of honor at stake that one should not be called a “ketanei amana” (untrustworthy fellow). Yet, nobody can force anyone to uphold a kinyan devarim.

As such, the answer to (B) is very clear. A shvuah is a solid commitment and the abrogation of one carries severe consequences upstairs. For lack of being released, the one who is under an oath has no other alternative than to uphold it and feels compelled. A kinyan, especially a kinyan devarim, is not so solid; it is only a matter of honor and reputation. For a kinyan devarim, one always has a weak alternative to abrogate it and let people think what they want.

So this generation, which is a step further away from a real “forced get”, is even more surprising. Once again, this fellow truly wants to give a get. He made the kinyan on his own. No one forced him to make the kinyan and no one is forcing him to give the get. More than that, he even has an alternative to abrogate the kinyan and walk away if he doesn’t really want to give the get. All that is at stake is his reputation. And, even after all this, the Rema holds that if he gives a get under this “yoke”, we suspect that he does not really want to give it and feels compelled by his kinyan. This is comparable to a get meuseh! We must see to it that the kinyan is forgiven.

The son of the third generation – the Knas (Fine)

At this stage, after these two surprising hard-lined laws, the Rema expands further to a lesser level and he softens up a bit. What if the husband takes upon himself a self-imposed knas (fine) for delaying the get? Says the Rema, “But if he accepts upon himself penalties if he won’t divorce, this is not being forced since he conditioned his get on an alternative action and he is capable of paying the fines and not giving the get”.

He seems to be saying that even though if one is forcibly coerced to give money if he does not divorce, this is considered being forced, once he accepted this penalty upon himself and he has the alternative to pay the money and not to give a get, he is not being coerced to give a get. This would be acceptable.

This is based on the opinion of the Teshuvas HaRashbatz (Tashbatz), an early 15th century Rishon.

If the Rema would have stopped here, we would have a firm basis for a kosher prenuptial agreement that we could all be happy with. However, the Rema could not abstain from acknowledging dissenting opinions. He notes that the Teshuvos HaRashba argues and gives even this case a status of get meuseh! The Rema concludes: “One should be respectful of the stringent opinion and not make such an arrangement l’chatchila, and if it was made, to void the knas. However, if a get was delivered under these conditions (or even that of the shvuah), it is kosher as long as he was not coerced into making this obligation from the start”.

The two phrases that are in bold italics are very significant. And these are the two phrases that Reb Dovid Lichtenstein conveniently omitted when he quoted this Rema. Without elaborating, they place a heavy damper on the idea of employing the leniency of the Tashbatz with the imprimatur of the Rema in a prenuptial agreement such as that of the BDA.

Okay. So the third generation is another step removed from a real forced get and it ends in a stalemate instead of a universal p’sul. But again we must ask, what is the context of this Halacha?

Things are starting to get even hazier. Our initial case was a voluntary shvuah made when the husband was already prepared to give a get. We then moved to a case where the only difference is that instead of a shvuah, he made a kinyan. Again, the husband is fully prepared to deliver a get. In each of these cases, the shvuah or kinyan were to take effect immediately. Now we should be moving to another comparable scenario where instead of a shvuah or kinyan, he took upon himself a potential fine. All the other details should be more or less the same.

In other words, this generation is also dealing with a case where the husband is perfectly willing to give his wife a get but for some reason the process is delayed. Perhaps he is preoccupied with business matters or is in transit or it will take some time to get a date with the Beit Din. Apparently, in this case the wife also wants a get. If not, why should he even think of making a knas on himself? Maybe they are afraid he just won’t get around to it. So, to reassure the wife or her family of the sincerity of his intentions right now, he declares a self-imposed penalty if he drags his feet. All indications are that we are not discussing a case where he is backing out. This would not be comparable to the earlier cases.

Truth be told, the Tshuvos HaRashba is talking about where the husband is backing out. It seems that the Tashbatz is talking where he isn’t. As such, the Mishkanos Yaakov (Pischei Teshuva 10) says that these two Rishonim are not really arguing and if the husband is backing out, even the Tashbatz would call this a get meuseh! (Though, if this is so, the Rema’s “compromise” to do l’chatchila like the Rashba and b’diavad like the Tashbatz does not make much sense. We must say that the Mishkanos Yaakov does not agree to the Rema and the Rema must hold that these Rishonim argue in at least one of the scenarios.)

I just want to add one more thought. It is not clear from the Rema if his knas scenario is meant to include any type of knas arrangement, regardless if it is fixed or term, or if it only applies to a one-time fixed amount knas – such as “If there is no get by the first of the year, I will give a flat $50,000” – but it is not meant to apply to a type of perpetual long term knas such as, “If there is no get by the first of the year, I will give a knas of $5,000 for every ensuing month”. This could go either way. My personal feeling is, being that a default knas in Torah literature – kefel, kofer, ohnes u’mefateh – is generally a one-time payment, this is what the poskim mean when they talk about it in Shulchan Aruch as well. A perpetual knas may have a different status (and go under a different name) such that even the Tashbatz may concede that this will cause a get meuseh.

The son of the fourth generation – the Mezonos

The first three generations are all that we know from the Shulchan Aruch and Rema. They are now finished discussing the toldos of get meuseh. Shvuah is a no-no. Kinyan is a no-no. Knas is subject to debate but cannot be implemented l’chatchila. And all these are where the husband is his own catalyst to the get! Is there anything else?

Not for another 250 years (Rema passed away in 1572). But eventually, in 1813, Rav Yaakov M’Lissa published Toras Gittin.

The Toras Gittin writes a lengthy discussion about the dispute over a self-imposed knas. To begin, he analyzes some knas scenarios where scholars have suggested that even the Rashba may agree that the knas will not invalidate the get. He rejects all of the suggestions. But at the conclusion of the segment, he writes the following:

It appears to me that in this manner the sides can make kinyannim by which to arbitrate divorces – wherein the husband accepts a kinyan sudar that he is forgiving (mochel) all of the benefits that a man has from his wife in terms of marital relations and earnings even if he does not divorce her and he will be left with his obligations toward the wife of support and whatever else. And consequently, he will divorce her since this is depriving him of anything good and he is still obligated to all of her benefits. And it would only be a get meuseh if the knas is contingent upon giving the get which is not the case here since the knas is not contingent on delivering the get at all.

This is the sum total of what he writes and, as in the “generations” before him, he does not present a precise context of where and when this Halacha can be applied. It is important to note the Toras Gittin does not write the irrelevant backdrop that Reb Lichtenstein illicitly imports from the next segment (which is not discussing a knas) and fuses it into his words in this segment.

So, a few centuries after Shulchan Aruch is signed and sealed, the Toras Gittin presents a fourth generation of potential get meuseh which is quite removed from the grand patriarch, to the extent that he rules it does not produce a get meuseh. This is what he describes as an ipso facto knas. He still calls it a knas, but he says that it is not contingent on giving a get but just happens to stay in effect until a get is given – ipso facto (ממילא)!

So Toras Gittin is making two very novel claims:

1.   One can irrevocably curtail his marital benefits by making a kinyan sudar.

2.   A financial penalty that is intended to induce a get but is not expressly termed as such is not considered a “knas to give a get”.

This is the foundation of the penalty clause in the BDA PNA.

Sadly, there are a number of serious issues with adopting this novel psak as a foundation for what is hoped to be a universally acceptable prenuptial agreement. Not the least of which is the novelty of the psak and to what extent it is (or is not) universally accepted.

There is no debating the great stature of Rav Yaakov M’Lissa who is recognized as a gaon in psak. Yet, for piskei din from the post Shulchan Aruch era (let’s say the past three centuries) there need to be some primary components to elevate a psak to a status of a “yesod” (axiom) of Halacha regardless of who the posek is. They are:

Nimukim – Line of reasoning. This means sources, precedents, and/or proofs (ראיות). New rulings are extensions or “updates” of earlier Halachic opinions that relate to this one. Typically, the Achronim reference the Rishonim that look to be saying the same thing so that they have room to claim that if this earlier authority was here today and was asked this question, he would have ruled this way as well. It’s a way of saying that I (the current posek) am not inventing anything new out of thin air. I am just updating a Halachic perspective that has existed for generations.

A Chaver- Colleague. This means someone of equal stature from the same era that independently makes the same (or very similar) ruling. It is not enough that later authorities apply the psak of this one after it was published. For lack of a chaver (especially where there are no nimukim), we have to assume that most other authorities do not agree with this chiddush and this posek has to be seen as a “daas yachid” and his ruling treated accordingly.

Context – We need to know the precise circumstances of the case that the ruling applies to. Without any context we are at a loss to understand to what situations the psak applies and to what it does not. At least, when the posek provides nimukim from earlier sources, we can compare the cases of those sources to fill in the blanks of this current case. Likewise, if there is a chaver who is more elaborative, perhaps we can get a clearer picture from the details of the chaver. But when there is none, we are forced to take this psak at its most rudimentary connotation and no further.

As great as the Toras Gittin is, in this case, the cupboard is totally bare. Firstly, he provides no sources or precedents or proofs whatsoever. In general, this is a rare phenomenon, but it is the case here. As for chiddush number 1, in all my research I could not find any precedent that one can irrevocably inhibit his marital conjugal rights with a kinyan. All through Shas and poskim, the only way a person can block these rights is by making a neder. There is a whole perek in Kesubos and related Halachos in Shulchan Aruch all about what happens if a man makes a neder to prohibit conjugal rights. A kinyan is never even suggested. It is hard to understand how a kinyan could even work for this. As for waiving the wife’s earnings, there are many problems with this based on R’ Yaakov M’Lissa’s very own rules that are clearly written in Choshen Mishpat 209 (28). I dealt with this at length in my earlier posts on this topic (HERE and HERE).

Secondly, as far as I know there is no chaver to his two chiddushim. Not only is there no chaver, but for chiddush number 2 he clearly has a very vocal dissenter. This would be Rabbi Avraham Yeshaya Karelitz also known as the Chazon Ish in his work on Even HaEzer 99 (6). HRHG R’ Moshe Sternbuch, Shlita refers to this in his teshuva, yet Reb Dovid Lichtenstein and the entire BDA are patently ignoring it.

Lastly, as for context, Toras Gittin does not provide any. All we know is that he is expanding on the Teshuvas HaRashba that is referenced in Even HaEzer 134:4. So we can only use that Teshuva as a backdrop and nothing more (not even the backdrop in his next segment which is about the Tashbatz’s position and not the Rashba’s).

As such, just as the Rashba is dealing with a man who voluntarily made a self-imposed knas to give a get when the marriage is currently on the rocks and at the time that he wanted it to immediately take effect, we have to assume that the Toras Gittin is likewise discussing one who is voluntarily doing this mysterious kinyan when the marriage is currently on the rocks and at the time that he wanted it to immediately take effect. We have no license to go a step further than this.

(Actually, it is quite difficult to even conjure a logical scenario for this halacha. If the husband is currently at odds with his wife and is willing to make this kind of deal, why not just give her the get here and now and be done with it? Perhaps Beit Din is trying to reconciliate them for the moment and is pushing them off.)

In addition, the very fact that our technique is to curtail the marital benefits  indicates that it is talking where, despite their differences, the couple are still living in a setting of “husband and wife” where these obligations apply. In addition, we must note that the Toras Gittin only mentions the husband being “left with” the same support obligation that he had until this point. He never mentioned increasing it.

Lastly, if the Mishkanos Yaakov has any say in this, he may insist that this can only hold true if the husband is not backing out of his willingness to give a get.

To summarize:

(A)        As great as the Toras Gittin is, to adopt his chiddush at all as a basis for a universal prenuptial agreement stands on very shaky ground since he is clearly a daas yachid and, for lack of nimukim, is very nebulous. Moreover, the Chazon Ish argues head-on on one of his two underlying principles.

(B)        Even if one were to accept his proposal, he only proposed it under these circumstances:

·         They are currently living in a man and wife setting

·         The mezonos is the same amount as he was paying until now

·         The waiver includes the husband’s conjugal rights

·         The waiver takes effect immediately when it is being made

·         The kinyan (agreement) is being done voluntarily with no coercion whatsoever.

·         Per the Mishkanos Yaakov – he is not backing out and is giving the get with no resistance.

Rabbi Willig and the Beis Din of America are “stretching” this chiddush to new lengths for which they cannot claim the seal of approval of the Toras Gittin. How so?

·        In the BDA prenuptial agreement (PNA), the agreement and kinyan are being made before the wedding and before there is any strife in the marriage. As opposed to the Toras Gittin, it is not taking effect when it is made. It is meant to take effect at some unknown time in the future and not to be in effect until then. (See earlier posts)

·       The BDA PNA makes no mention of conjugal rights (try doing a me’achshav on this one!). Note that the original 1992 Hebrew draft by HRHG Zalman Nechemia Goldberg does mention it and the English version leaves it out.

·       The BDA PNA calls for a new and inflated value for “mezonos”.

·       The BDA PNA is meant to take effect when they are no longer living together and the marital obligations are not currently in force.

·       The BDA agreement is meant to take effect even if the husband changes his mind (Mishkanos Yaakov)

·        As opposed to the Rema that the Toras Gittin is writing about, the BDA is instructing their Rabbis to insist that the Chosson should sign this agreement and possibly to refuse to officiate it he does not, hence the signing may not be clearly voluntary.

This is quite a list of variations.

I am aware that even some prominent Chareidi poskim have spoken up in favor of this current PNA. Alas, it is not certain that they have examined all the issues. Personally, because of the severity of get meuseh, I could not be comfortable with any PNA unless we can be certain that it would meet the approval of the Chazon Ish, Mishkanos Yaakov, and the Toras Gittin.

Regrettably, I am not convinced that any of these poskim would approve of this PNA and I don't think that anybody else should be, either.

Wednesday, December 25, 2019

Prenups VII – Asmachta and Gemiras Daas: The Mind is what Matters

I haven’t written for quite a while (very preoccupied with off-line matters) and, here at the blog, I have a lot of unfinished business. I still haven’t gotten around to Part 2 of my previous post about מכה רעהו בסתר and, as for previous commitments, I haven’t completed the series on Techeiles nor the one on Prenups. 

As far as the mainstream Chareidi media is concerned, two topics have very recently come to the fore. One is the subject of Batei Din and Toanim – are they good for the Jews or bad for the Jews? – as was discussed in a two-part Headlines podcast covering a total of over four hours. This is an intricate and contentious topic that I have been holding in reserve for the right time. Perhaps the time has come.

The other one is…drum roll… “Halachic” Prenups! A recent issue of Mishpacha magazine took it as their feature article. Mishpacha claims that there is growing interest to implement what they call “Halachic” prenups within the Chareidi community. I suppose it’s time to get back to that one.

Interestingly, both of these topics seemed to converge around a young rising star in the world of Chareidi social politics and the new Beis Din that he founded. The young star is Rabbi Avraham Kahan in his role as the founder and spokesman for the New City Vaad HaDin V’Horaah under the guidance of HRH”G Rav Meir Stern, Shlita.

Rabbi Kahan was interviewed for both features. In the Headlines podcast, he told us about some of the revolutionary policies of the New City Beis Din, primarily that of no Toanim and an “oversight” Beis Din. I hope to discuss these policies in future posts. In the Mishpacha feature, he tells us about the efforts of the New City Beis Din to implement some form of Halachic Prenup that is more suited to the Chareidi community.

This is my cue to get back to the Prenups series, because one of the things I wanted to accomplish in my long overdue [possibly] grand finale Prenups post was to move beyond the BDA Prenup and do some comparison shopping. Like, what other Prenup options are out there and how do they match up? From the Mishpacha magazine article, it looks like there is a new contender on the market. More grist for the mill.

More than that, it looks like a whole new organization has been launched to promote Chareidi style prenups. The organization calls itself Yashar Coalition. Their information at this time is quite skimpy. They proudly display short endorsements from three prominent North American poskim and a list of “highlights” of their prenup but not a copy of the prenup itself.

One of the primary halachic battles that all of these prenups need to conquer is the problem of asmachta lo kanya. To date, I haven’t focused on this matter because I generally choose to write about Halachic issues that are overlooked by the mainstream analysts. So I have written about the problems with the waiver and kim li. I did talk about asmachta briefly in one of the more recent posts with regard to the endorsements of Gedolim dating back to 1992. But it needs to be better understood if we want to understand why one Prenup on the “market” is structured differently than the others.

In this post, I do not plan to discuss any proposed Halachic Prenups. That will have to wait. I only want to present an overview on the general Halachic concept of asmachta lo kanya. What is it?

Here goes.

The word asmachta in this context means “good faith” or “confidence” which is another way of saying a “guarantee”. It refers to a common sales pitch where the salesman says, “If you are not satisfied or if you do not get 90 days trouble free usage, you get double the money back.” Halachically, he may really be liable for the principle sale price, but he is certainly not liable for double the price. He only offered double to gain your confidence. Since we assume that he didn’t really mean it, we do not hold him to the extra amount even if he backed up his guarantee with a kinyan (act of transfer)!

Still, this is only one type of case that can fall under the rubric of “asmachta”. The term essentially applies to any scenario that has the following two components:

·         The promised money is not an exchange for tangible goods or services, but rather for something intangible – such as someone else’s confidence, hence the term. But it could be for other intangibles as well, such as for a gamble or a self-imposed penalty for breaking an agreement.

·         The terms of the obligation to pay money is not absolute but based on conditions or uncertainties.

The default rule, before the “exceptions”, is that a kinyan under these circumstances is not binding. Why is it not binding?

Let us first examine what is a binding kinyan and what makes a kinyan work.

A kinyan is an action that finalizes a transaction and passes rights or title to the item(s) being transacted. Briefly, it is the moment a proposed deal becomes a “done deal”.

Let’s make it simple.

Dave has a car, a 2010 Chevy. He is the sole owner or title-holder of the car. This means he has exclusive rights to enjoy the benefits of the car. He also has the exclusive rights to allow another person to temporarily enjoy the benefits while he remains the title-holder and he has the exclusive rights to transfer ownership permanently to another person.

It is now 2019 and Dave wants to liquidate his car for cash. He advertises the car for sale. Sure enough, he gets a call from Sol. Sol comes by and checks out the car and they negotiate a price. They settle on $5000 for the car and they shake hands. A few days later, Sol shows up at Dave’s door with $5000. He puts the money into Dave’s hand and Dave promptly hands him over the keys and his current registration. Sol drives the car out of Dave’s driveway straight over to the DMV and registers the car into his name and drives it home.

Meanwhile, Dave has just finished recounting the $5000 for the fourth time and the home phone rings. It’s Sam. Sam heard that he is selling a 2010 Chevy and he is hungry for one. Before Dave can tell him that the car was sold, Sam offers Dave $6000 for the car. Dave hesitates for a moment and then his cell phone rings. He pushes off Sam and takes the call. It’s his buddy Mort. Mort says he knows how well Dave takes care of his car and it would be perfect for his son-in-law. His daughter is due any day so his son-in-law needs the car like yesterday. He will give him $1000 over his last serious offer.

Understandably, Dave has some misgivings. He calls Sol and tells him, “Listen, I changed my mind about selling you the car. Bring me back my car and I’ll give you back your $5000”. Sol immediately responds, “What do you mean ‘give me back my car’ and ‘you’ll give back your $5000’?? It’s my car. I bought it and paid for it and even registered it into my name. And it’s your $5000. A deal is a deal.” Dave is adamant, “No, it’s my car and I want it back. You can have the $5000 back.” Sol refuses. Dave declares, “This is going to Beis Din!” And it does.

What is going to happen in Beis Din?

Well, as long as the BD is straight and honest (another topic), and both sides tell the exact same story (part of the other topic) as I detailed above, they will certainly send Dave packing. Sol made a clear kinyan on the car. Maybe even more than one. At the moment of the kinyan, title and ownership rights were lifted from Dave and transferred to Sol. It is indeed now Sol’s car and Dave’s money. Sol can unilaterally decide what to do with the car and Dave can unilaterally decide what to do with the money. If Sol agrees to reverse the deal to please Dave, he is welcome to do so. But it is his decision, not Dave’s. Of course, if it were Sol who had misgivings and wanted to reverse the deal and return the car and reclaim the $5000, it would be Dave’s decision whether or not to accommodate Sol. The moment of the kiynan iced the deal. At this point, neither side can unilaterally back out.

So this is the significance of a kinyan. It is the point whereabout neither party can cancel the deal without the agreement of the other side – which would be, in effect, just making a distinct second deal which reverses the first one.

A kinyan means that the deal is irrevocable. From this moment on, one may not unilaterally back out!

But, this also says that a moment before the kinyan, either side may back out!

But there is one more factor which is the key to this post. This is that many poskim define the pivotal point of a kinyan as a display of “gemiras daas” which is an absolute intention of the two parties – the seller to relinquish ownership to the buyer and the buyer to assume ownership. The actions that Chazal determine to be called a kinyan is one that displays such a “gemiras daas” in any given case.

In a typical goods-for-cash transaction, a handshake is not enough because a buyer is not willing to assume risk liability on a mere handshake. This even holds true in the diamond business. Chazal went so far as to nullify a kinyan keseph for the same reason. The buyer is not ready for risk liability as long as the good are not “in his hands”. And so, Chazal ruled that the buyer must physically take control of the goods either by way of lifting it (hagbaha), drawing it away from the domain of the seller into his own (meshicha), and in some cases, “taking the reins” (mesira).

In a case where the goods are located outside of the buyer’s current location and the parties still want to cement the deal, Chazal approved of some substitutes which are meant to simulate an actual kinyan. Those would be a kinyan chatzer, kinyan sudar/chalipin, and kinyan agav.

The main thing is that there should be a clear display of “gemiras daas” on the part of the sides that the transaction is in effect.

This is all very logical when we are dealing with a typical transaction which is a transfer of something tangible for something else tangible. This usually means paying money or providing some other goods or services in exchange for portable goods, real estate, livestock, slaves, or a bride for something else tangible. What we call “something for something”. When the “buyer” takes possession of what he is buying, the seller gets rights to the medium of exchange. The physical kinyan indicates the point of gemiras daas and makes the deal irrevocable.

But what happens if we are offering money or something worth money for something intangible? We are not discussing a marketable service such as calling a repairman, going to a doctor, legal services or just plain hiring a laborer. For all of these, services rendered automatically obligates the recipient to the agreed amount of payment or the market rate. We are discussing something that doesn’t have a clear market value or there is no exchange or just giving something “extra”.

The prime example is any ketuba. On the woman’s side of the deal is nothing more than an undefined commitment: הווה לי לאינתו – be a wife for me. On the man’s side is a bundle of cash which comprises the basic ketuba price – 200 zuz – plus the נדוניא and the “tosefet”. Possibly, the 200 zuz and the נדוניא can be called an exchange and may not require a real kinyan. But the tosefet (not so impressive in Ashkenazy ketubot but can be extravagant in Sefardic ones) is just a bonus for no exchange. What makes the obligations of a ketuba an irrevocable deal?

Likewise, the gemara discusses cases where someone takes upon himself to support his new wife’s existing children for a given amount of time. Other examples are when a person takes upon himself to support an institution or cause or any donation or sponsorship which is pledged “bli neder”. Note, for the moment we are not talking about attaching any conditions on the pledge. No strings attached!

In typical situations where the benefactors are not going to put the money down up front, the recipients may need a guarantee. A potential wife needs to be assured that the husband is irrevocably bound to his financial commitments before she will commit to marry him and the mikvah committee needs to know that the donors will come through before they commit to a contractor. There is nothing physical to exchange or to make a kinyan on. What can we do to cement the obligation and determine “gemiras daas”?

We know that we can indeed create a one-sided, no strings attached monetary obligation or debt. This is called a “hitchayvut”. But the payer can always back out of his obligation unless there is a kinyan to demonstrate “gemiras daas” and make it into a true debt. At that point we look at it as if the payer received a loan from the recipient and is required to repay it as much as any borrower. In actuality, he did not receive any money or anything at all form the recipient, so what facilitates the debt?  

For this, we need to do a simulated kinyan and the primary method is the kinyan sudar (hanky-panky). The recipient (“buyer”) takes a small item such as a handkerchief (sudar), yarmulke, gartel, or a pen and symbolically hands it over to the seller/debtor who hands it right back. This ritual stands in place of a kinyan for the actual goods (which, for a one-sided obligation, do not exist). This is accepted as a show of “gemiras daas” and neither party can unilaterally back out.

We have finally arrived at our key destination. The Asmachta!

All that we have discussed about a one-sided obligation for no tangible exchange applies to a case where the benefactor takes on the obligation unconditionally. He will pay his wife’s ketuba upon termination of the marriage – no ifs, ands or buts. He will support her minor children. Period. He will donate the money to the shul. Period. He will sponsor the student’s scholarship. Period.

There are no strings attached. This is not an asmachta.

But what happens when he offers money on condition that something uncertain occurs?

So we come back to the salesman that offers the buyer double his money back if the buyer is unsatisfied or if the product does not hold up for 90 days. He is essentially making a bet that he prefers not to lose.

This is an asmachta.

Well then, an asmachta can be most any form of gambling or bet. I will pay this money if my number does not come up on the dice or the roulette or if my horse does not place or my team does not win. More legitimate examples are when someone offers their child a prize for getting a good grade or offers his sales team an extra bonus if the sales exceed expectations. “I obligate myself to this amount if you get the good grade or the high sales figure.”

Or, if one promises his wife on the eve of their wedding that if, at some time in the future, the marriage goes sour and is not dissolved promptly, he will pay her an inflated amount of “mezonos” for as long as the marriage is in effect. He is doing this to make her feel comfortable. To obtain her confidence in him.

This is an asmachta. Or, certainly, a candidate for one.

As long as no kinyan was made, the magnanimous gambler/parent/boss/groom does not have to live up to his offer. All agreements are revocable if there was no physical transfer or kinyan. But in the case of a bona fide asmachta, the offer is not binding even if there was a standard kinyan (hanky-panky).

Why not?

Because the uncertainty of the “if” coming to fruition together with the fact that the money is not an exchange for anything tangible indicate that the benefactor did not really commit to his offer. There is a lack of “gemiras daas”.

We are obviously dealing with a situation where the benefactor – salesman/gambler/parent/boss/groom – is backing out of his offer. And this punctuates that fact that he was never committed to it in the first place. So even if a standard kinyan was made, a kinyan that does not indicate “gemiras daas” is not really a kinyan. And so, asmachta lo kanya.

But we know that these types of deals need to be made. Salespeople have to give guarantees to buyers and parents or bosses need to motivate their charges with incentives and some Jewish grooms need to reassure their brides. If the agreements are not binding, they are worthless. What can we do to make them stick?

To solve this, Chazal and our poskim give us some methods of enhancing the kinyan to show a more sincere level of “gemiras daas”.

There are two primary methods discussed in Choshen Mishpat (207) to counteract the problem of asmachta – or the problem of lack of gemiras daas. If you look closer, they are actually two ways of accomplishing the same thing. This is instead of a commitment for a payment to take effect in the future, make the payment take effect right now even if you are not actually paying it.

The first method is to announce at the time of the kinyan sudar (or write into the shtar if there is one) that when the condition is fulfilled, the money is being awarded retroactively as of now – מעכשיו.

The Mechaber (ChM 207:14) explains that “if he did not commit to the transaction, he would not have said ‘as of now’”. This magic word proves to us that the benefactor is committed. Why?

What the benefactor is saying is, “I am prepared to give the money right now. The only reason I need the condition to be fulfilled is to ascertain that the transfer of money is really called for. If a prophet would tell me for certain that the condition will come about, I would fork over the cash on the spot and not even wait for the condition to be fulfilled. But since no one can assure me, it has to wait until showtime.”

This is construed as a show of gemiras daas and ices the commitment. Of course, it helps if we know that the benefactor has the cash on hand.

The Rema requires that, in addition, the kinyan be done in the presence of a “Beit Din chashuv” (a BD that is well versed in the laws of asmachta) or at least to accept that it is done there. The Mechaber recommends this as well but it is not clear if he requires it. To be safe, we always go the extra mile and do like the Rema.

The second method is ye olde “Chachmei Sefarad” trick which is, in effect, a reverse commitment. What happens is that the benefactor first does an unconditional no-strings-attached debt (“hitchayvut”) to the recipient for the amount he is promising. Then, he gets a commitment from the recipient that if the condition for payment is not met, the recipient will forgo the debt of his own free will or allow the benefactor to sue for reimbursement. Again, what the benefactor is doing is committing himself unequivocally to the payment right now and, as such, is displaying clear “gemiras daas”. He adds that this is how all the prenuptial agreements in Sefarad and similar things were done!

The Rema notes that this system always works!

What we have seen so far is that the main problem with an “asmachta” agreement is the lack of gemiras daas. The remedies that are discussed in Shulchan Aruch work because they “restore” the gemiras daas. So the keyword of the day is certainly – gemiras daas.

So what happens if the benefactor made his kinyan with the magic word “מעכשיו” and even actually before a Beit Din chashuv and there is still a question of gemiras daas?

How can this be?

If we go back just a seif or two in Shulchan Aruch to ChM 207:13, there is a very lengthy Rema that introduces us to varying degrees of asmachta. In general, he distinguishes between cases where the fulfillment of the stipulation is in the exclusive control of the payer to where it is in the exclusive control of the recipient and the payer fully expects him to come through on the stipulation, to where it is not in anybody’s control. All of these variations are judged by how much the payer expects for the stipulations to be met and, accordingly, his gemiras daas.

The various scenarios are both very confusing and subject to differing opinions and they open a pandora’s box to many other variations. And if you look at some of the later commentators on this (predominately the Drisha – SM”A – in the Tur Sh”A) and read between the lines, you might come up with a different way to slice the cake. To me, the consensus of the poskim fell along these lines:

·        A scenario where the benefactor wants the stipulation to be met even if he doesn’t expect it. Prime example is the boss who offers a bonus to his sales team for exceeding projected performance. Though he might not expect it, he certainly would like it to happen and has no qualms about surrendering the money if it does. In this case it is very reasonable thatמעכשיו  indicates gemiras daas.

·        A scenario where the benefactor does not want the stipulation to be met but nonetheless, expects it to. Prime example is the gambler. He obviously does not want to lose his money but he knows the odds and he accepts them for the opportunity to gain big if he wins. Here again it is reasonable to say that מעכשיו indicates gemiras daas.

·       The third scenario is what we call a תרתי לריעותא – a double whammy. This is where the benefactor both does not want the stipulation to be met and does not expect it to happen. And the prime example of this is…you guessed it… the BDA prenuptial agreement.

As much as the institution of marriage has deteriorated in the Orthodox community over the past decades, we can still proudly say that the divorce rate is exceptionally low. In the Chareidi communities it is probably hovering about 5% and even among the more liberal Orthodox Jews it is probably no worse than 15%. So even the more modern Orthodox groom thinks he has a better than 85% chance to stay married and he knows himself and [thinks he] knows his kallah and feels very self-assured. It goes without saying that having to actually carry out the prenup is the last thing he ever wants to do.

In a scenario such as this, it is not so reasonable to determine that the benefactor had true gemiras daas even if he signed a document that said מעכשיו and declared a Beit Din chashuv. More so when he is in his disoriented premarital mental state and doesn’t know what an asmachta is in any case.

This double whammy condition is not my own invention. I discussed it in a previous post when we noted that there are even more variations of asmachtas which influence the degree of gemiras daas.

Firstly, I referenced a segment from Reb Shalom Spira’s essay which brought an opinion that מעכשיו  and BD chashuv only helps when there is only one stipulation to the payment. But in a case of multiple conditions to be met, even מעכשיו won’t work. The probable underlying reason is because when there are multiple conditions which reduce the chances of all the stipulations to be met, there is also a reduced gemiras daas.

The second variation that I referenced will was the SM”A in ChM 131:13 sk 25. We know that there is a general dispute in the Rishonim if an unconditional one-sided obligation is binding even when the exact amount of money being pledged is undisclosed. All of the prominent Rishonim except for the Rambam hold that it is indeed binding. Presumably, the underlying reasoning of the Rambam who disqualifies this debt is that, since the person does not know exactly how much money he is committing to, we cannot say that he is committed to the debt even if he made a kinyan. Evidently, the other Rishonim do not see this as a deficiency of gemiras daas.

The Shulchan Aruch (ibid.) is discussing a case of a loan guarantor who obligates himself to cover someone else’s debt where the exact amount of the loan is undetermined. The Shulchan Aruch rules that based on the majority of Rishonim who allow the debt, the guarantor is liable for the undisclosed amount. The SM”A disagrees with the Mechaber and argues that this dispute only applies to an unconditional obligation for an undetermined amount. But a loan guarantor is always obligating himself on condition of non-payment. He says that when there is a stipulation, i.e., asmachta, together with this undisclosed obligation, the major Rishonim will agree with the Rambam to disqualify the debt. (The Shach stands by the Mechaber.)

The SM”A explicitly says that because of the double-whammy, it is too farfetched to assume gemiras daas.  

All told, the issue of asmachta lo kanya is a serious problem that needs to be addressed in a prenuptial agreement that creates one-sided obligations. And the issue is indeed addressed in all the variations and there are different approaches taken.

I hope to be able to do the Consumers Report comparisons in an upcoming post.

Wednesday, October 16, 2019

Arrur Makkah Re’eihu B’Seter – Part 1: Good Faith

Author’s note – This is more of an Ellul post than a chol hamoed post. I am aware that Ellul 5779 is behind us and Parshat Ki Tavo was a few weeks ago. We are now in the midst of our zman simchasenu. But recent personal events have made this post necessary and now is when I have time to write. Can’t put this off until next Ellul!

ארור מכה רעהו בסתר – פירש"י: על לשון הרע הוא אומר.

Cursed is he who smites his fellow in secret (Devarim 27:24) – This is referring to Lashon Hara (Rashi)

I opened this blog in July 2008, eleven years and 358 posts ago. Spiritually, a blog can be a very risky venture and I acknowledged it in my very first post when I wrote:

You may ask - how can one keep his balance on a blog without transgressing 14 assehs and 17 lahvim?
I'll tell you, it isn't easy!

Lashon Hara is a very serious issue. And I take it (or, perhaps give it) very seriously. What is my approach?

I have two mentors. One is the Chofetz Chaim. I will refer to his rules a bit later. The second is the Tanna Rabi Yosi ben Chalafta. Here is what he says (T.B. Shabbos 118b and Arachin 15b):

אמר רבי יוסי, מימי לא אמרתי דבר וחזרתי לאחורי

Rabi Yosi proclaimed, never in my life did I say any remark and turned backward

What does Rabi Yosi mean “turned backward”?

Without checking any commentaries, it’s a sure bet that most people will understand the term חזרתי לאחורי (turn backward) to mean he never retracted anything he ever said. It means everything he ever said was measured and thought out and did not cross any lines, so he never had to eat his words and retract.

So, let’s go with this meaning and see how I have been doing on my blog.

I have to admit, I am not batting 1.000 but I am pretty close. I recall retracting a complete blog post which was totally inappropriate sometime in the blog’s very first year, but I don’t think I have ever retracted a complete post since. Of course, I constantly do revisions on lines or phrases to correct errors and improve comprehension and sometimes to reduce the tone or cynicism. Very often I do this on my own and sometimes people have approached me with requests or suggestions for modifications. When it is warranted and does not disrupt the flow of the text, I do my best to comply. I try to be friendly to friendly people.

But it really very rarely happens. So, including that one post in 2008 (1 in 358), I figure I’m batting around 0.950.

I do wish I had more feedback. I welcome comments, questions, criticisms and complaints. This is why I put my 1A7B email address in my book (twice) and on my blog template (which is on every page). The Comments section on my blog is always open for business. But business is slow.

When writing on a topic that involves real live people, lashon hara and judicial slander and defamation are always a big concern. I joked about it on my very first blog post. So I do my best to follow the rules.

On the Halachic end of things, the Chofetz Chaim lists seven conditions for writing (or saying) something that can affect another person. Basically, there must be some constructive purpose to it (toelles) and you have to know and be able to verify your facts, no filling in blanks, no overstatements, and you need to notify the person you are talking about if at all possible. (This is not the complete list but these are what is relevant to a blog).

This last detail of notifying the person is a central theme in this post. More on it later.

On the legal side of things, I am [allegedly] careful to use “journalistic license”. As a rule, I don’t make statements, I make opinions. I don’t write that something or someone “is a problem” but rather, something or someone “appears problematic” or “seems to be an issue”. I am stating an observation and an opinion, I am not creating or stating facts. I am not looking for trouble.

So, despite the fact that there are those who may be uncomfortable with the critical and polemical nature of a blog that, by its nature is meant to be critical and polemical (mussardig), I really don’t think there is anything written on my blog that Halachically or legally needs to be retracted.

So, if Rabi Yosi means what we all think he means, I can call myself a contender. I can’t say that I have never “turned backward” but I can say I’ve come close.

But, truth be told, this isn’t at all what Rabi Yosi means. At least, not according to Rashi it isn’t. Let’s look closer.

Rashi, on this passage in Shabbos 118b, writes as follows:

וחזרתי לאחורי -  לראות מי יעמוד אחורי שאף בפני הבעלים אני אומרה אלמא לאו לישנא בישא חשיבא 

Turned backward – to see who is behind me, for I would say it even in the presence of the subject. We see that this [type of talk] is not considered lashon hara.

Rabi Yosi is giving us a litmus test to distinguish what counts as lashon hara. He is of the opinion that if it is something that one is not afraid to say in the presence of the subject, it isn’t lashon hara.

I think Rabi Yosi is trying to tell us the key factor of what makes “evil speech” so evil:

Makka Re’eihu b’Seter – Smiting your fellow in secret.

Remember Rashi’s commentary on this pasuk: It is discussing lashon hara.

Rashi does not seem to be quoting a chazal or a Midrash. It seems to be Rashi’s personal perspective. Where does Rashi learn this from?

I think he learned it from Rabi Yosi.

No doubt, when someone wants to say something defamatory, malicious, and degrading about another person, he will certainly not want to say it in that person’s presence. Aside from the fact that it will anger that person and who knows what may happen as a result, there is something else. The gossiper does not want the person to be able to contradict him and to defend his position or to set the record straight. The gossiper wants all his listeners to take him at his word and not to question what he says.

So he makes sure to say the gossip where it won’t readily get back to the subject. He will say it at a gathering or on a forum at which the subject has not been invited to participate. Where the subject is not present or invited or even allowed to respond. The gossiper doesn’t want to be tripped up and he wants whatever evil can befall the subject due to the gossip to come to fruition.

Thus, Rabi Yosi is saying to us that “I never spoke about anybody this way. I never said anything that was so malicious and untruthful that I didn’t want the person to hear. I never said anything in a situation where I was afraid to allow the person to respond. I never had to look over my shoulder to see who was listening.”

But there is no reason that this is limited to patently evil, malicious, purposely degrading gossip. It can even turn the tables on “gossip” that is not meant to be malicious or purposely degrading and damaging.

This is what is known in Slander Law as “good faith”.

Sometimes one feels the need to castigate and criticize someone for doing things that do not conform with Torah values and laws. This is called “tochacha” or “giving mussar”. In a Halachic sense, if one is doing it for a positive outcome, it is actually a big mitzva. And in a civil legal sense, it is called “criticism in good faith” and is not liable for defamation action. This is noted in paragraph 15 of the Israel Law of Lashon Hara.

Thus, both Halachically and legally, one may give mussar and criticism if it is in good faith.

But, what constitutes “good faith”?

Well, I just now wrote that we must be clear of problems both from a Halachic perspective and a legal one. Fortunately, here in Israel, these two entities are intertwined and there is a lot of overlap. So, let’s first take our rules from the Chofetz Chaim.

The Chofetz Chaim presents seven conditions to call something “good faith”. I summarized them earlier and here is a repeat of the main ones: There must be some constructive purpose to it (toelles), i.e., no intent to damage. In addition, you have to know and be able to verify your facts, no filling in blanks, no overstatements, and you need to notify the person you are talking about (if at all possible).

The last one is condition number 3 on the Chofetz Chaim’s list (Hilchos Lashon Hara 10:2). Why is this so important?

The Chofetz Chaim writes an obvious explanation. The person should be notified in advance so that perhaps he will desist from the activities that you want to call him out on, in which case, there would be no further need to say the degrading information and it can be avoided.

This is as much as he writes about it, but I think that there is another purpose included in this: You must notify the person in order to allow him to explain himself and justify his actions or clarify misconceptions. As I said earlier, to allow him to set the record straight. The person needs to be notified that you are saying this about them and given the opportunity to respond.

If you skip this step, even if your intention is pure and you meet every other condition of the Chofetz Chaim, your speech is still Lashon Hara. This is because it is מכה רעהו בסתר. If the person does not know what is being said and cannot respond, one can no longer assert that his slander was “in good faith”.

This is the core problem of Lashon Hara. And it turns over the whole deal even if everything else passes the test. And certainly when it doesn’t. The criticism can be whitewashed as tochacha, but if it doesn’t reach the person involved, it’s not a tochacha. This failure to notify actually displays that it was not meant to be a tochacha; only a malicious defamatory statement, a stab in the back. It is now a “makka re’eihu”, and a "secret" one at that.

ארור מכה רעהו בסתר!

So this is what Rabi Yosi is telling us when he said that he never said anything for which he needed to look over his shoulder hoping the person in question won’t hear. Everything derogatory that he says is something that he would want the person in question to hear so that he could change his ways or clear up any mistakes. Not only is it not מכה רעהו בסתר, it isn’t “makka re’eihu” at all.

According to Rashi, this is what Rabi Yosi really means. And I can proudly say, that in this department, I follow Rabi Yosi 1000%!

If I ever write anything critical (i.e., mussardig) about anyone that can have some negative repercussions, I absolutely, positively want that person to see it. I am not hiding my posts from anybody and I am not looking over my shoulder. I am not ashamed of anything that I have written and I welcome any kind of feedback – good, bad, indifferent, questions, corrections, compliments, complaints, whatever. I am not trying to be “makka re’eihu”. And I certainly will not be מכה רעהו בסתר.

This is why I have my email distribution policy.

For many years I have been using one of those free email services (MailChimp) to distribute my blog posts as emails. Obviously, I do it because I want my posts to reach people and be read and this is how I notify prospective readers that there is a new post to read. Who is signed up to my list?

Well, anybody who I feel may be interested. This includes the usual suspects, family, friends and well-wishers. Some people have signed up on their own, but most are people I signed up myself. It’s like a free trial subscription to a magazine and if you don’t like it, please feel free to unsubscribe. Many do unsubscribe. This is to be expected and respected.

When I say that I sign up anybody who I think may be interested, this includes people who may be directly or indirectly referenced in the posts. I want these people to know that I wrote a post which may concern them. This is partially just plain mentschlichkeit and partially to protect myself both Halachically and legally.

By “Halachically” I mean exactly what I just wrote – I do not want to be guilty of מכה רעהו בסתר (it’s a curse, after all). By “legally”, I mean that, in case somebody does think I may have crossed a line into judicial defamation (chas v’shalom), I can always claim that they were notified of the existence of the material and they had every opportunity to lodge a complaint or correction and request a revision. Like I said, I don’t look for trouble.

So if I sign someone up and they unsubscribe, they will no longer automatically receive my blog emails for every new post. But if a new post in some way concerns them, then I will still send them the email manually. I am doing it not only for their benefit, but for mine as well.

I will have no מכה רעהו בסתר.

My project calls for criticizing a lot of behavior and outlook that does not conform with Torah ideals. This is the purpose of my blog – to educate, defend, and to preach the Torah viewpoint to others. And there are often real people on the receiving end of the preaching; those who engage in the activities and/or convey the faulty outlook. My criticism inevitably concerns them. So I need to be sure that they are aware of what I wrote so they may recant or refute.

Over the 358 posts I have taken issue with numerous fellow bloggers. The most frequent is (or was) Rabbi Harry Maryles at Emes V’Emunah. He happens to be a personal acquaintance and I think that (off-line) he is a wonderful person, a devoted Jew and a real mentsch. But I have strong issues to what he writes and I have said so in the strongest of terms. He is on my email list. So far, he hasn’t unsubscribed and Mailchimp’s built in tracker tells me he opens almost every post (this does not mean the post was read) . We have sparred both on each other’s forums and behind the scenes. This is the way it should be.

I have placed other fellow bloggers on my email list, such as Headlines Reb Dovid Lichtenstein, Daas Torah Rabbi Daniel Eidensohn, Rafi from Life in Israel, Yaakov from Yeranen Yaakov and Dvash from Tomer Devorah. Of these, three have unsubscribed; the other two are still with me. Those who unsubscribed no longer receive my post emails except that if the post concerns them, I send them a copy manually. I feel it is a favor and an obligation. I will not be guilty of מכה רעהו בסתר.

I have critiqued – both “for” and “against” – writings or statements from outspoken colleagues such as Rabbis Jonathan Rosenblum, Dovid Orlofsky, and Moshe Grylak. (These three happen to be neighbors, as well.) They are all on my list and they open on occasion. As for the “debate” between Rabbi Ahron Feldman, Shlita and Rabbi Ahron Lichtenstein, Z”L, I managed to find an email address for Rabbi Feldman but not for Rabbi Lichtenstein.

With regard to the Prenups controversy, I subscribed Rabbi Michael J. Broyde and emailed Rabbi Mordechai Willig, Shlita and the BDA. I actually got some feedback from Rabbi Broyde but nothing from the BDA. Likewise, I have taken issue with Rabbi Shlomo Riskin on his stance on annulments. I emailed my post to No response.

On the 107 Rabbis Kol Koreh controversy, I subscribed the sponsor, Monsey Yid – He almost never opens but I did receive one correspondence from him.

The list goes on. As you may guess, Miriam Shear ( unsubscribed. I had to manually send her a copy of Judging the Judges – Part 1.

It goes without saying that the Malka Leifer extradition episode is the most controversial topic I have discussed and has ruffled the most feathers. Once again, I firmly stand behind everything I have written and have followed the directives of Rabi Yosi. I haven’t “turned backward”.

This applies to both connotations that I discuss in this post. Everything I write is from a verified source, is not exaggerated, and is written in “good faith”. It is all done with the goal of giving this controversy a speedy and happy ending for all involved and to mitigate the chillul Hashem.

Likewise, I stick to my email notification policy. I will not be guilty of מכה רעהו בסתר.

It just so happens that I have Rav Yosef Blau on my email list for quite some time. Way before I took on this topic. Thus far, he has not unsubscribed and the tracker says he regularly opens the posts. Of course, this does not necessarily mean that he actually read them. Most of the other JCW personnel – Meyer Seewald, Shana Aaronson and their address at all unsubscribed.

It goes without saying that my correspondence with the RCANZ was through email. I tried to get the emails of as many individual members that I could (Rabbi Yaakov Glasman, Rabbi Benjamin Elton, Rabbi James Kennard, and Rabbi Alon Meltzer) and sign them up. Yep, most of them unsubscribed. So if I write a relevant post and have to send manually, I have a separate list of recipients just for that.

The post about Rav Yitzchok Dovid Grossman was sent to His office unsubscribed. I could not find an email address for Rav Mendel Shafran, Shlita. The post about “The Fall Guy” (David Stav) went to (no response). I did not subscribe him.

And what about the Sapper sisters?

Believe it or not, Nicole Meyer actually contacted me before I knew who she was. I eventually subscribed her. She is still subscribed and the posts are opened on a regular basis. If it’s a post on the topic, I usually see multiple opens.

Dassi Erlich inadvertently posted her email address on her Facebook page in a letter she got from some Australian politician. I sent her an email saying that if she doesn’t want people like me finding her email, she may want to delete that letter. No response. In any case, I subscribed her and she unsubscribed immediately after the next post came. So now I only send her posts on the topic. I never found an email address for Elly Sapper but I don’t think it matters at this point.

You will notice that I have gone to great lengths to assure my readers that I adhere to the lessons of Rabi Yosi. I write polemical posts because I believe that daas Torah and Halacha are not adequately presented on the Internet. The posts need to be written. These posts challenge the positions and statements of other people, but this is no reason not to write them. Only they have to be written in “good faith.” This means out in the open with no backstabbing. Where the person being written about can respond. Without מכה רעהו בסתר.

This is how I write. But this is not how others write about me. I won’t dish out מכה רעהו בסתר but I sure get a lot of it. And it is alarming how many very Torah observant web sites are not mindful of what truly constitutes lashon hara – מכה רעהו בסתר.

In Part 2 of this post, we will visit some of those “frum” Internet web sites.

Just cover your ears eyes…

תכלה שנה וקללותיה - תחל שנה וברכותיה

Chag Sameach!