Tuesday, May 8, 2018

Prenups 4 – The Great and Powerful Emperor Kim Li the Second [Opinion]

Author’s note – This post is a continuation of a series of posts that began last November about the BDA Prenuptial Agreements (PNA). To see the earlier posts, click HERE
As in some of the previous posts, there is some technical Halachic discussion in this post. If you would like to skip the Halachic analysis, read until it begins (first red message) and then skip to where it ends (second red message) and read the conclusion.

In my previous posts about the BDA prenups, I made mention of a mysterious “Emperor” - as in: The Emperor’s Waiver has no Close. Yes, of course, it was all metaphoric but, if something works, I’ll stick with it.

So who is this metaphorical Emperor? What is his name?

His name is Emperor Kim Li Kamosi. Kim Li Kamosi is the eldest son of the Emperor Kim Li Leik the First. And so, he is often referred to as Emperor Kim Li Leik the Second [Opinion] – or just “Kim Li” for short.

What are his strengths? What kind of powers does the great Kim Li have?

Well, according to the Beth Din of America (BDA) the powers of Kim Li are limitless. And so, they have pledged their full allegiance to this mighty Emperor. Here is what they wrote in the closing paragraph of the standard PNA (Paragraph VII):

As a matter of Jewish law, the parties agree that to effectuate this Agreement they accept now (through the Jewish law mechanism of kim li) whatever minority views determined by the Beth Din of America are needed to effectuate the obligations, procedures and jurisdictional mandates contained in this Agreement.

There he is – Kim Li! And, according to the BDA, he is needed to “effectuate the obligations, procedures and jurisdictional mandates contained in this Agreement”.

We understand that Emperor Kim Li is very bold and he bravely stands up against other mighty warriors. In the spirit of the Maccabees, he is like the few against the many. The BDA considers him to be invincible. I don’t agree.

In my original Prenups post, I expressed just one of the reasons why I found this clause to be somewhat disturbing. I wrote:

The Halachic issues involved have turned it (the PNA) into a very convoluted document and, accordingly, a very controversial one. This is evidenced by the strange Kim Li clause at the end of the document. Without too much detail, this clause states that the parties agree to accept whatever halachic opinions are required to make this work, even if they are not the prevailing majority opinions. This, by itself indicates that the BDA acknowledges that the validity of the prenup depends on some off-Broadway opinions.

I repeat that this is only one of the reasons why this clause is disturbing. There are others. The fact is that we don’t really know a whole lot about Kim Li. Kim Li is a very mysterious emperor. Even the greatest of Halachic experts are not certain as to what he can do – to what extent can he wield his power.

The language in the BDA PNA seems to indicate that Kim Li is a Jewish law mechanism that allows us to accept minority views.

Though it may appear to the untrained eye that this is what Kim Li does, this is a gross misconception. As such, I see their statement as a callous distortion and misapplication of the concept of Kim Li.

Start of Halachic discussion - to skip this part, scroll to the next red message.

Kim Li – our Emperor - is greatly misunderstood. In order to know a person, we always need to know his background – where he is coming from. So let’s check it out.

Emperor Kim Li was born in the Rema in Choshen Mishpat 25:2. And he was raised by the Knesset HaGadol, the Shach (Takfu Cohen), and the Tumim (Rabbi Yonason Eibishitz – Kitzur Takfu Cohen). They reveal his true identity and function.

The topic in Choshen Mishpat 25 is: What if a dayan makes a mistake?

In order to determine what to do if the dayan makes a mistake, the Shulchan Aruch needs to tell us: What, exactly, is a mistake? In other words, how must a dayan rule ideally, so that if he rules otherwise, we can say he made a mistake?

Writes the Shulchan Aruch (Mechaber) in 25:2:

If one erred in a subjective issue, for example, a case that is a dispute among Tanaim or Amoraim and [the Talmud] has not ruled explicitly like either opinion, and the dayan ruled like one opinion and was unaware that the case has been universally accepted throughout the [Jewish] world like the other opinion, if he is an expert dayan, the case should be overturned. If it cannot be overturned, he (the dayan) is exempt from reimbursing the injured party.

We have just now been introduced to what is called a sefeika d’dina. A case where we are unsure of the correct Halacha due to conflicting valid opinions of the proper Halacha. At this stage, we can infer two levels of sefeika d’dina:

The first level of sefeika d’dina is the one that the Mechaber openly describes: even though there is a dispute between major authorities, the Halacha has been “universally accepted” according to one view. 

From here we can deduce the second level of sefeika d’dina: there is a dispute between major authorities and the Halacha has not been “universally accepted” according to one view. In other words, the true Halacha is still “up for grabs”.

The Rema deals with the second level. In this case, he says a skilled dayan is one who can evaluate the underlying intent of the Halachos to make distinctions that determine the true Halacha. If he is capable of this, he may rule as he sees fit. But, if he is not that capable, “He may not exact payment from the muchzak (defendant – i.e., the one who is currently holding the disputed money) on a safeik, for wherever there is a sefeika d’dina [in monetary law], we cannot exact money from the muchzak.

This says to us that whenever there is equal validity to both viewpoints and the case could be ruled either way, the muchzak has the privilege of claiming that the viewpoint that benefits his case is the prevailing one. This is in accordance to the principle of המוציא מחברו עליו הראיה - in a monetary case, the burden of proof is upon the plaintiff (motzee).

This is because the disputed money is currently sitting in the defendant’s pocket and this establishes the status quo. In order to override the status quo and force the defendant to turn over the gelt, the plaintiff must prove conclusively that this is called for. A stalemate in opinions is not conclusive proof and is determined by preserving the status quo.

As such, the Rema in Choshen Mishpat 25:2 is telling us that when there is a dispute in Halachic opinions, unless there is a “universally accepted viewpoint” that favors the plaintiff, the dayan must either on his own, or at the behest of the defendant, say that Kim Li - “I maintain …” - like the opinion that supports my side and preserves the status quo.

And thus, the great Emperor Kim Li Kamosi comes to life!

The only issue we need to resolve is: What is considered a “universally accepted viewpoint” that nullifies the power of Kim Li?

Comes the Shach(SK 17) and tells us:

Many are the Halachic distinctions that determine in which situations the muchzak can say “Kim Li” as well as: if one grabs the disputed item, do we allow him to keep it? The Rishonim and Achronim have not defined it clearly, and they have left room for me to explicate definitions on this issue. And so for this, I have already composed an entire sefer which I call Takfu Kohen in which all of these laws are clarified with clear proofs.

Takfu Kohen is a short sefer (only 158 pages in my edition) in which the Shach devotes all the 158 pages – 130 chapters – to resolve a single Halachic question:

Shimon owes Reuven money from a recent loan. Nobody is disputing this debt. However, Shimon claims that Reuven owes him that much money from a previous business venture that is subject to dispute. Reuven acknowledges the venture but denies this offsetting debt. The Halachic status on Shimon’s counter claim is clearly dependent on differing Halachic opinions among major poskim – Plugta d’rabvasa. Do we say that Shimon must pay the debt he acknowledges since it is undisputed and the disputed money should be litigated separately or is Shimon entitled to retain the money that is currently in his pocket (which will offset his debt) due to the validity of his counterclaim?

In other words, Shimon’s counterclaim is valid according to some major Poskim but not valid according to others. Can he say Kim Li like the poskim who favor him since he has the money or do we say that since he acknowledges that the money that he has is from an undisputed loan which, on its own, he must return, he is not considered a muchzak to the money that he is holding?

The Shach rules that “Pshita!” (no brainer) that Shimon can keep his money and “there is no need to elaborate on this.” Then the Shach adds: "However, since there is much talk about the rules of sefeika d’dina among the Rishonim and Achronim, I feel compelled to write at length…

With this, he launches the next 157.5 pages on how to figure out exactly who is the muchzak. The entire case rests on the status of muchzak because, as we saw earlier, the muchzak has the upper hand. This is because the muchzak always wins in a true case of sefeika d’dina because המוציא מחברו עליו הראיה the burden of proof is upon the motzee (plaintiff) - as we saw in the Rema.

And what constitutes a sefeika d’dina?

The Shach writes the magic words – Plugta d’rabvasa – a dispute among great scholars!

Thus, in order to be able to say Kim Li in a Din Torah, there must be a sefeika d’dina which stems from a plugta d’rabvasa.

But now we must recall the words of the Mechaber – when the ruling of the dispute is “universally accepted”, the Halacha is firm. Evidently, not every dispute among great Torah giants (plugta d’rabvasa) is a sefeika d’dina.

So, what is and what isn’t?

The easy thing to say is the Mechaber was referring to Talmudic disputes where we have clear rules. He himself refers to the Tanaim and Amoraim. For these disputes we have time-honored guidelines.

Halacha is like a stam Mishna. In a dispute between Rabi Akiva and a single peer, the Halacha is like R. Akiva. If it is against the Chachamim, the Halacha is like the Chachamim.  Beit Shammai is “not a Mishna” in the face of Beit Hillel. Halacha is not like R. Eliezer. In a dispute between R. Yehuda and R. Meir, we rule like R. Yehuda. Etc.

Rav and Shmuel, we rule in monetary laws like Shmuel and other laws like Rav. R. Yochanan and Reish Lakish, we rule like R. Yochanan. We always rule like Rav Nachman in monetary laws. And, one of the best known – Abaye and Rava, we rule like Rava except in six places. One of the six is the rule that “yiyush shelo midaas is not yiyush”.  If one lost an unidentifiable object but is not yet aware that he lost it, he has not yet forfeited his ownership and one who finds it cannot keep it.

This is the Halacha. Suppose Dave is holding an object that he found yesterday and Sol drags him to Beis Din with proof that the object was formerly his and he just now discovered it was lost (and Dave admits that he found it). If it is determined to be a case of yiyush shelo midaas, the BD will take the object out of Dave’s hands and give it to Sol even though Dave is the muchzak at this moment. Dave cannot say Kim Li that the Halacha of yiyush shelo midaas is like Rava and keep possession of it.

Why not?

Because the Halacha has been universally accepted as in favor of Abaye and not Rava.

All this ends at the end of the Talmudic era. From that point on it is chaos. Do we have rules about disputes between the Rambam and Rabeinu Tam and the Rif and the Rosh and Rabenu Yona and the Ran and the Rashba and the Rivash?

In the times of the Mechaber, there may have been communities that ruled purely by the Rambam (Teiman and N. Africa), or by Rabeinu Tam and the Baalei Tosafos (France and Germany) or by the Rosh.  But the truth is that every dispute among these greats is a plugta d’rabvasa.

The Mechaber wrote the Beis Yosef and, later, the Shulchan Aruch to definitively rule which Rishonim prevail in any issue.  Along came the Rema and he made other choices. And, in fact, a dispute between the Shulchan Aruch and Rema in Choshen Mishpat is a sefeika d’dina by both Ashkenazim and Sefaradim and either one can say Kim Li to the side that benefits him.

Immediately following the era of the Shulchan Aruch and Rema arose three luminaries that attempted to make some semblance of order. The Knesset Hagedola (Rav Chaim Benvenishti of Turkey), the Shach (Takfu Cohen) and Rav Yonason Eibishitz in the Tumim (Kitzur Takfu Kohen).

The main question is: Is every dispute a sefeika d’dina? What about if there is a clear majority in Poskim to one side?

In response, everybody seems to agree that when a solitary posek stands against the rest of the world, we cannot say Kim Li like that lone posek. The Shach says there must at least be two of equal stature who independently maintain the same [less-popular] ruling.

The Tumim adds (indicated by the Shach) that even if there are more than one posek supporting the less-popular view, if it is an overwhelming clear majority (Rov Hanikar) to the popular opinion, one cannot say Kim Li like this kind of minority.

Comes the Knesset Hagadol and clarifies, that this applies only if it is a Halacha where all the poskim give a ruling. But if it is something that only three or four poskim contend with at all, then one posek against two or even three others may not be considered a lone posek. Who knows what the others would say if asked?

The Knesset Hagadol adds that some alliances such as “Rambam and his teachers” or the Rosh with the Tur (and even Maharam Rottenberg) only count as one opinion.

But things still get confusing. The Knesset Hagadol  says that in a case where it is questionable whether or not one can say Kim Li, one cannot say Kim Li.
Why can't the muchzak say Kim Li like the opinion that one may say Kim Li?

Moreover, the Tumim writes that any ruling in Shulchan Aruch that is written by the Mechaber and not objected to by the Rema (i.e., unanimous) even though it may be predicated on a strong dispute in the Rishonim (plugta d’rabvasa), is not subject to Kim Li.

I also saw brought down (Chavos Yair brought in PT 25:2) that there seems to be a rule in Choshen Mishpat that in case of a dispute between the SM”A and Shach  - both confirmed “rabvasa” – the Halacha is like the Shach because he is the Basra (he was later – just like Rava). Some opinions say that this means that one cannot say Kim Li like the SM”A against the Shach.

Hold on! The SM”A is no less erudite than the Shach (both were Kohanim). In fact, he was older – died seven years before the Shach was born. Should we say just because the Shach was able to dispute him and he (the SM"A) cannot respond because he was one generation earlier (and deceased), that we do not have a bona fide plugta d’rabvasa and a muchzak who claims Kim Li like the SM”A’s viewpoint must lose his case?

How does this all play out?

Consider this case which, astonishingly, is a pivotal issue in the BDA prenups:

Choshen Mishpat 60:2 writes the Mechaber:

If one obligates himself to an obligation that is not a fixed (finite) amount, for example, one who obligates himself to support his fellow man (or his ex-wife - YH) for five years [or an undefined amount of years –Rema], even if a kinyan was made, the Rambam maintains that he is not obligated. And all those [Rishonim] who came after him disputed this ruling and say he is indeed obligated – and this is what we accept.

So a case of an obligation for an undisclosed amount of money is a Halachic dispute where the Rambam is the lone dissenter against all the other Rishonim. As such, the Mechaber goes, out of character, and explicitly rules against the Rambam. Note - the Rema does not object to this. (This certainly helps the BDA PNA.)

So, the question arises, once the Shulchan Aruch brings both opinions, even though he clearly sides against the Rambam, could the one who declared the obligation later say Kim Li the Halacha like the Rambam and free his obligation?

The Shach on the spot brings the opinions of two great poskim who preceded him – Maharashdam and Maharshach - who say there is no reason not to say Kim Li like the Rambam. Evidently they do not support many of the rules that we stated in the name of the Shach and Tumim. The Shach immediately says he argues and holds that there is no room to say Kim Li here for all the reasons we previously mentioned.

So what happens today? Even though the great Shach and Tumim rule unequivocally that there is no room for Kim Li here, the Shach himself brings two poskim of great stature that he respects and says that they do support Kim Li. So if the litigant wants to claim Kim Li like the Maharashdam and Maharshach against the Shach, why could he not?

It seems that even Rav Elyashiv, ZT”L was unsure about this (Kovetz Shiurim 1:167).

So, what to do?

I asked a few dayanim in Har Nof including the Av Beis Din of the Har Nof BD and they told me that the Batei Dinim today generally follow the rules of the Shach, Knesset Hagadol and Tumim and in this case would probably not allow Kim Li. That said, they certainly follow what the Knesset Hagadol says that, at the end of the day, it is all up to the discretion of the dayanim.

The upshot of all this has two main points:

·         We normally do not accept Kim Li for a lone wolf opinion and even for a shared opinion if it is opposed by an overwhelming majority that says otherwise. This is even if the minority opinions are truly rabvasa (as is the Rambam) and how much more so if they don’t measure up in stature to the prevailing Poskim.

·         When there is a universally accepted position on a Halachic matter, we very rarely will allow somebody to say Kim Li even if there are prominent dissenters.

It is time to return to the BDA Prenups but, before we do, let us recall that all this started in the Rema in Choshen Mishpat 25:2 that brought us Kim Li (or sefeika d’dina) to start with. Let’s have a look at what the Rema writes immediately following these words (note- this is one of the most fundamental passages from Rema in all of Shulchan Aruch):

[All the above about sefeika d’dina is in monetary cases] but if it is a ruling of hetter and issur (Yoreh Deah – things such as Kashrut, Aveilus, Family Purity, Ribis, or Hilchos Shabbos, etc.), and it is a Mosaic issue (issur d’oraysa), we must be stringent [on a sefeika d’dina] and if it is a Rabbinic issue (issur d’Rabanan), then we go after the lenient opinion. And this is only when the two authorities are equal but we do not rely on a lesser authority in the face of a greater one. And likewise if it is a lone opinion in the face of the majority, we go after the majority opinion in all cases and this is even if the majority consensus is not based on the same reasoning by all authorities…

The Rema is the one who tells us that, for a monetary sefeika d’dina, we can rely on the minority opinion to preserve the status quo. And now we see to what great lengths the same Rema goes to stress that this is only for monetary cases! In all other areas of Halacha, there is no concept of Kim Li whatsoever!
End of Halachic analysis and start of conclusion of post.

So we have now revealed who the great Emperor Kim Li Kamosi really is. He is not as powerful as we may have thought.

·         Kim Li is only used to support the position of the muchzak to preserve the staus quo and to keep his money. It is never used to support the position of the motzee (plaintiff) to allow him to exact money from the nitva.

·         Kim Li is not used on a dispute of the Rishonim once the Achronim have agreed on a particular viewpoint.

·         Kim Li is not used in a location that exclusively follows a specific Rishon for all Halachic matters.

·         Kim Li is not used to support a lone opinion or even two or three poskim against an overwhelming majority.

·         Kim Li is exclusively a function of Choshen Mishpat and is not used for any non-monetary Halachic matters.

Now – FINALLY! – let’s refer back to the clause in the BDA PNA and see how disturbing it really is.

I already complained that it implies that this whole PNA needs to rely on some “minority viewpoints” to be effective.  Essentially, they are conceding that this will not work according to all authorities. There may be a plugta d’rabvasa in effect!

But there is more.

The BDA is erroneously claiming that Kim Li is a “Halachic mechanism” that can allow us to follow a minority opinion.

No! This is not what Kim Li does. Kim Li is a Halachic mechanism to settle a sefeika d’dina by allowing the muchzak to call in those poskim that support his position. In most cases it is dealing with an equilateral plugta d’rabvasa, not necessarily a minority position. In some cases, even if his supporters are not the majority, if they are great scholars – rabvasa – we must respect their viewpoint because, even though in this case they are the minority, it is still a valid sefeika d’dina.

Moreover, the BDA is employing Kim Li as a “mechanism” to justify being motzee money from a muchzak!

Kim Li l’hotzee?? Have we ever heard of such a thing?

Well, there may be such a thing, but not because of Kim Li.

Emperor Kim Li Kamosi is not the only bully (Halachic mechanism) in the schoolyard. There is a much more powerful Emperor in the region.  His name is Emperor Tnai Mamon.

Okay, his full name is Emperor Kol Tnai She’b’mamon Kayam – any mutually agreed condition in monetary matters is upheld. This means that in any place in Choshen Mishpat that deals with a transaction or a loan or shemira, a deal or contract between two people, the parties can agree to whatever Halachic standards they want. The laws of Choshen Mishpat are here to teach us how should a Beis Din rule in case the litigants did not set mutual terms. But if they agree on the terms up front, the terms of the agreement stand.

So if a shomer chinam agrees to take responsibility for theft, he is responsible. He cannot tell Beis Din that he agreed to it but Choshen Mishpat exonerates him. If a lender lends an item on condition that there is no exemption of baalav imo (a good idea, by the way) and the borrower acknowledges this agreement, he cannot later claim baalav imo in BD.

This Emperor is much more powerful than Kim Li. As such, the Knesset Hagadol writes in his rules on Kim Li (Rule 30):

We only allow Kim Li in a situation where the litigants did not previously agree to follow the rulings of a given posek. (Or, as mentioned earlier, in a location where there is no custom to follow a specific posek.) However, when there is a custom [or agreement] to abide by a given posek, the muchzak cannot say Kim Li… [this may be] even if this posek is a solitary posek against the majority!

This is really Emperor Tnai Mamon at work.

But there is one thing that both Emperors – Kim Li and Tnai Mamon have in common. They only work in Choshen Mishpat – monetary laws. For anything that is governed by the laws of Yoreh Deah, Even HaEzer or Orach Chaim, they are both totally powerless.

So the passage of the PNA is doubly disturbing – if they are referring exclusively to money matters (mamonus), why employ the weak Emperor Kim Li? Why not the all-powerful Kol Tnai She’b’mamon Kayam? And if they are not dealing exclusively with mamonus in this clause, for anything that is a plugta d’rabvasa in Hilchos Issur (Ishus, Geirushin, whatever),  there is no Kim Li and no Tnai Mamon. If it’s a sfeika d’oraysa, we must be machmir – period! No excuse for minority opinions.

I, B”H, have been happily married for over 30 years (bli ayin hara). I did not sign a PNA, so I have no stake in this controversy. I truly want what is best for Klal Yisroel. But I wrote in a previous post (HERE) why prenups like this are not a boon for us. Besides, when I am wearing my Toen Rabani hat, it's my job to be a fein-schmecker on Shulchan Aruch and to keep the dayanim on their toes.

The truth is that I have a tremendous amount of respect for Rabbi Mordechai Willig, Shlita. I am a good friend of his brother from Kew Gardens. I think he is a tremendous Talmid Chacham (and his brother). I really would expect better from him.

As for the rest of the BDA, I am not sure if they have really learned Choshen Mishpat. Either way, I think they need to get themselves another Emperor.


Daniel Westbrook said...

1) יישר כוחך for the clear explanation of Kim Li, in language understandable to the layman.

2) The source you were looking for that says that there is no kim li like the Sma against the Shach is the Chavos Yair, quoted by the Pischei Tshuva 25:2.

3) You are right that kim li seems irrelevant in the case of the PNA. This leaves us with three options:

a) The BDA have some explanation as to why it is relevant. I also don't understand why, but it would be polite to bring this issue up with them first.

b) When they said kim li, they meant tnai but used imprecise language. If so, the PNA should definitely be improved although it is still valid the way it is.

c) Some of the BDA dayanim don't know Choshen Mishpat.

Do you really think that c) is the most likely? Or is this the language of a toain rabani trying to score points?

Yechezkel Hirshman said...

R. Daniel, LOY"T

Thank you very much for commenting and thanks even more for pointing me to the Chavos Yair. I remembered it as being something brought down in the PT but I didn't check the PT on the first seif of the siman.

As for your choices in point 3, firstly, they are not mutually exclusive. They can all be true.

In terms of “b”, I really believe the BDA was trying to package all of their shitos into one bundle whether it was a Choshen Mishpat issue or Even HaEzer issue. For this reason, they could not write “through the Jewish law mechanism of kol tnai she’b’mamon...” because they want the fellow to accept their shita on anything even if it’s an Even HaEzer issue (like get meuseh) as if that helps.

As for choice “c”, when I wrote “really don’t know Choshen Mishpat” it did not mean they don’t know it at all. It means they don’t know it as well as they should, and yes, I really believe that.

Like any player, a Toen rabani needs to score points. He who does not score points loses the game!

Daniel Westbrook said...

So you think that they don't know enough of Choshen Mishpat to know that kim li doesn't apply to Even Haezer issues? Or are they knowingly try to fool people over this?

Yechezkel Hirshman said...

What do you think?

Daniel Westbrook said...

Although I do not know him personally, I have heard from enough people that I trust that Rav Gedalia Shwartz is a talmid chacham worthy of his position. As you have mentioned, the same is clearly true about Rav Mordechai Willig. The former dayan Rabbi Michael Broyde is also clearly of the calibre that he could not have made such a basic mistake. I do not know anything about the other dayanim, but I have no reason to question their chezkas kashrus.

Therefore the most likely explanation is b) above, although I do not exclude the possibility of a).

Moe G said...

The RCA/BDA is looking for a given outcome for which they try to twist Halacha into reaching. They do this on a theoretical level for which they write the prenup based upon. And they do this (attempting to make the halachic outcome meet contemporary Western civilization's expectations) in individual divorce cases they conduct among married litigants silly enough to utilize their judges.

Daniel Westbrook said...

Moe G,

On what basis do you make this very severe accusation?


Do you think Moe G's comment is in line with Hilchos Lashon Hara?