Out of the Freezer

Indeed, I haven’t posted anything in quite some time and, from the looks of things, I don’t think anybody noticed.

Part of the reason I haven’t been writing is that there is not much I care to write about. The two major topics I have been discussing of late are Child Abuse/Mesira and the Shidduch Crisis. I basically exhausted these topics. I am not interested in writing about Trump (I happen to like him) and there is no need for me to write on any issue where I have nothing to be “mechadesh”.

Another reason is that I have been quite busy. Thus, I want to present a few personal news updates which will, among other things, explain why I have been so preoccupied.

The first update is that the star of my Shidduchim posts, my tachshitel “Yossi”, has finally pulled it off, B”H. He is engaged. This is not really fresh news - it is about six weeks old; as of Rosh Chodesh Nissan, to be precise. This grand event, coinciding with the Pesach rush, was in itself enough to keep me away from my keyboard.

To briefly recap the story, my Yossi ran off a bit less than two years ago to the Goldene Medinah at the ripe age of 24 ½.  We initially avoided sending him to BMG partly because they are very strict about the “freezer” and since he would enter in October, very close to 25, we wanted to avoid it. After a year of good learning and mediocre dating in the off-Broadway theater, we understood that he is not in focus on the radar screen so we bit the bullet to transfer him to BMG. I implored the Powers-that-Be to waive the freezer requirement but they just gave me the cold shoulder.

So now he is “frozen” until Tu B’Shvat and we got him a return ticket to come home on 2 Nissan - a span of a mere six weeks; but only four weeks until Purim when things grind to a halt. He won’t have time to date while he’s here during Pesach, so this automatically meant that he probably wouldn’t warm up (thaw out) until the following zman. He would probably be out of business until Chodesh Iyar. At his age!

Even if he gets lucky right out of the starting gate and hits it off with his first or second prospect, it would mean finishing up between Purim and Pesach, a time that would be impossible for me and his mother to scoot in to the US to close the shidduch.

Well, I have my ideas and HKBH has His.

The first girl kept him busy for three dates but then fizzled out. There was barely time to get involved in another parsha, but we put in a call for a local Lakewood prospect right before Purim.

Jackpot! (Or am I supposed to say:”Bingo!”?)

Now, in my Shidduch posts, I was constantly preaching about two things: promoting web cam long-distance dating and writing eye-catching resumes. Yossi was meant to be my laboratory rat, so, how did we fare?

Well, we never actualized Skype dating. Not for any earlier girl and certainly not for this one. The fact that she lived in town with her folks not only made the old fashioned dating rather painless, but for the later stages, Yossi didn’t even need a car. She picked him up with hers. Saved us a bundle.

So, as it turns out, Yechezkel Hirshman, the great pioneer of Skype dating, sidestepped the entire concept and bowed to tradition!

Well, not 100%.

We did not need to use Skype for any dating, but, if you recall, I noted that the engagement took place on Rosh Chodesh Nissan. I was in no position to fly into New Jersey and her folks were in no position to fly out here. So, how did we meet?

You wanna guess?

That’s right, we had the parental tete-a-tete and closed the shidduch with a Skype meeting. I had to drink my own schnapps. But, again, I saved a bundle! So, at the end of the day zman, Skype amounts to something.

Of course, the circumstances that call for Skype dating are still in place along with a whole stack of girls whose resumes were shoved aside, so I am still promoting it.

Did I mention resumes? Ah, yes. What happened in the resume department?

Here, as well, there is nothing to trumpet about. Her resume was written very run-of-the-mill. It looked just like any average resume, nothing eye-catching about the style or layout. No “בס"ד “, no “special interests”, no telephone numbers of mechutanim, and no grandparents (I’ll be fair – only one of them is still with us). Not much background information about the parents, not even her mother’s maiden name.

Of course, the vital statistics that were on it were very favorable, she was conveniently located, and, what was most important, she is actively interested in coming to live in Eretz Yisroel, which had been a major sticking point for Yossi throughout this whole undertaking. So she had the ammunition to catch our interest even though her resume didn’t meet my standards.

When it’s the right one, it’s the right one.

Still, for those young ladies who aren’t as conveniently located, don’t have such positive “vitals”, or concur with a special need (such as to settle in Eretz Yisroel), it really pays to have a resume that stands out from the crowd.

So much for Yossi, may he and his intended build a bayis neeman b’Yisrael . He is getting married in Lakewood in Tammuz, IY”H

…and this will cost us a bundle.

Incidentally, my Yaakov is still out there and I’ve got two newer ones in the parsha.

The second update is my latest quest for a lucrative career which touches on the subject that I am aiming to discuss.

My Technical Writing career came to an abrupt standstill almost two years ago (which explains why I came back to blogging). I had mentioned in an earlier post, that as a backup, I undertook adult education in counseling and CBT and later, a certified course in Rabbinical marriage counseling (Yiutz Nissuin Rabbani). To date I have not been able to ply these skills commercially. This is partially because people are not so willing to invest the necessary resources into preserving their marriages.

As such, I took the logical next step of going where the money is – divorce court (Beis Din). I am now studying to be a Toen Rabbani.

If you can’t help ‘em stay married, you may as well help ‘em split up!

In the course of all the above, I learned a tremendous amount about Human nature, what goes on in people’s bedrooms, and what the divorce industry in Eretz Yisroel is really about.

This is a crash course which we are trying to squeeze into 18 months. Two tests on Choshen Mishpat, two tests on Even HaEzer, two tests on divorce laws and Beis Din practices, and a final oral exam by the Rabbanut. I have a test in two weeks and another one four weeks after that. This is a grueling course and it’s been keeping me busy and will continue for a bit, so I won’t be posting much.

I do need to say this:

This course is given by a branch of the same institute that taught me the Rabbinic Marriage Counseling. The marriage counseling part is called YaNaR (Yiutz Nissuin Rabbani) and the Toen Rabbani (and dayanus) part is called ShoHaM (Shaarei Halacha U’Mishpat) both of which were founded by Rabbi Meir Assor.

His story is that he used to be a Toen Rabbani and he recognized that so many of the broken marriages that open files in Beis Din were potentially salvageable, or could have been, if only the parties had proper guidance earlier on. This needless carnage broke his heart and he set out to train people to provide the necessary guidance to distraught couples. May his venture be blessed.

As his institute expanded, he added the Halachic branch to train Rabbanim, Dayanim, and toanim. Ironically, Rav Meir Assor began as a Toen and retrained himself to be a Yoetz Nissuin. I began training as a Yoetz Nissuin and am now retraining to become a Toen.

In any case, as is my style, this entire post is meant to be a preamble to the subject that I really wanted to discuss, which, indeed, is the issue of Shalom Bayis. Likewise as usual, the preamble is a post in itself and overshadows the main topic, so I need to break and leave the topic for a future post.

If I have the time to get to it…

The Strange Arm of the Law

About two months ago I had a very minor car accident wherein I basically relieved a 2015 Mazda of its right side mirror. Yes, of course, I got out of the car and we exchanged the relevant information. And I didn’t say, “I’m sorry. It was all my fault” although, it very likely was. (I was backing up!) I estimated the damage to be relatively low, somewhere between 500-1000 shekels.

A day or two later I was contacted by the “owner” of the car (the driver’s mother) and I told her that this seems to me to be a low priced damage which is certainly way beneath my deductible, so I would prefer to take care of it between ourselves. She said she cannot accommodate me because it is a leased car.

Fair enough.

All was quiet for quite some time. Then, about six weeks later I finally received a letter from the leasing company demanding payment for damage. Beneath that paragraph was a line that said:

Description of damage:

1.   Damage         1459 NIS

Total owed:  1459 NIS

Well, this amount exceeded my personal “estimate” and, in addition, there was no itemized description of the damage whatsoever. It did not tell me what this sum is based on. How do I know they didn’t replace the brake pads in the process?

While I do take responsibility for this damage, I am not in any hurry to pay it. For sure, I was in no mood to pay NIS 1459 which seemed to me an exorbitant sum for just a mirror. As such, I fired a letter off to the leasing company that I feel this sum is exaggerated and that their “Description of Damage” was not descriptive enough. They must furnish me with an appraiser’s report and/or the paperwork detailing what work was done and the costs of parts and labor. I ended off that for lack of these papers I am not willing to pay more than NIS 600 for this damage.

After patting myself on the back for my brilliant stalling tactic, I sat back to see what would happen.

It didn’t take more than a day or two that I received an email with a note and an attachment. The attachment was a very authentic looking copy of a very authentic looking invoice from a very authentic looking car repair shop in Talpiot. The invoice itemized the mirror at NIS 1389.40 plus labor at NIS 70 (very reasonable labor BTW) for a total of NIS 1459.40. It did not include a report from an official appraiser.

The note said, “Attached is the invoice for the repair of the mirror.” And it ended with these words: “Your request for a settlement (pshara) is denied.”

I read the note and looked at the invoice.  Even though I still thought the part was exorbitantly priced, I had to appreciate that they discounted me 40 agurot. All told, I said to myself, “My goose is cooked. I suppose I am going to have to fork over NIS 1459”. 

NIS 1459 (just a bit over USD $400) is not easily missed in my meager budget and I am all for more stalling. To accomplish this, I immediately sent them a return email which said, “Thank you very much for the information. The price still appears to be exaggerated. I will check into this and get back to you.”

I let a week slide by. I wasn’t even sure it was worthwhile for me to check out the price. Everything looked real, so what would I achieve?  Still, I decided to show the invoice to Sholom, a body shop man in Givat Shaul that I used previously.

Oh boy, am I ever glad I did!

I asked Sholom if this price is realistic and I pessimistically expected him to confirm it as so. Sholom looked at the invoice and asked me, “What year is this car?” The answer is 2015. “When was the accident?” April 2018.

Sholom proceeded to tell me that they obviously used a genuine original part to repair the car and this is what parts like this cost. But then he said that the law says that if someone’s car is damaged, the owner is only entitled to use original parts to fix his car for up to two years from the year of manufacture.  After two years, the car is classified as a used car and any part of the car that was damaged in an accident is considered a used part. As such, the liable party only needs to shoulder the cost of a generic or used part for the repairs.

I asked him how much is a used part valued at? He answered that the appraisal protocol values non-original parts at 50% of the value of a genuine part. There may be an exception if the part is totally unavailable non-original but this needs the approval of the appraiser. As I wrote, there was no appraisal report included in the paperwork.

This was music to my ears!

I immediately went home and fired off a letter to the leasing company wherein I related everything Sholom told me. I told them I am prepared to pay 50% for the part – NIS 695 – plus the NIS 70 for labor for a total of NIS 765 and not a grush more. I ended the letter saying, “Your denial of my request for a settlement is denied!”

I expected not to wait more than another day or two to receive a notice that would either refute my law facts and demand full price or that would concede the facts and agree to close on NIS 765. But all this was almost two weeks ago and, so far, I haven’t heard a peep from them. End of story is that, to date, I haven’t even paid a penny for the accident and who knows if it won’t get lost in the twilight zone? What’s more, I am very confident that when I ever will pay it, it will not be for more than NIS 765.

And what is the moral of this tale?

It pays to know the law.

It could save you a bundle of gelt and heartache. Knowledge is power and knowing one’s rights and obligations by law will always give one a racer’s edge during runtime.

Probably, we all know this valuable piece of advice. For sure, anybody in any line of work knows the laws that apply to his day to day activities. But folks don’t know so much about things that are not everyday occurrences. And they don’t appreciate how much it can come in handy when they least expect it; hence, the lesson that I almost didn’t learn about car repairs. And I only learned it in the nick of time.

Now, many people think they know the laws about certain matters. But they are not scrupulous enough. This is a terrible trap. They may think they are “covered” by the law when they are really not – or that the other guy is not covered when he really is. And this can be needlessly costly. One needs to know the law well, with all its restrictions, exceptions and limitations. We know that nobody knows criminal law better than a professional criminal. An amateur criminal gets busted. So...Take a tip from Bill Sykes. He can whip what he likes…

Of course, this rule applies to any code of laws – secular or Halachic. For we who live in two worlds, we don’t always know when a dispute is going to go Halachic or secular.

Issues and disputes tend to catch us off guard. We can’t be expected to know all laws and Halachos of a mostly irrelevant topic. But a wise person at least knows that now that he is facing an unusual situation, it pays to speak with the experts about the laws and Halachos that apply. He is in for quite a few surprises. Some may be pleasant and others not. But it will help him tremendously to know. And this is why wise people will consult with lawyers, toanim, or dayanim when an unfamiliar situation comes up.

In some cases the advice costs money. This can be tricky and calls for a cost/benefit analysis to determine if the money at stake is worth the investment. If it is, it’s a good idea to shell it out. 

Thus far, in this post, I mainly discussed secular law. The story about the car repair involved secular law and it took me by surprise. I wrote a post a few months back about the laws of extradition. I’ve had readers complaining about misinterpretation and I even put in a few updates, but, by and large, we found a few surprises. The law is not as “smooth” as many of us would like it to be.

Likewise, as a writer on the Internet, aside from the journalistic ethics (which are not laws), it helps to know some of the laws about copyright infringement, good faith criticism, defamation and libel. I have been looking into some of these laws lately because I have been victimized by these.  Once again, some pleasant surprises and some not so pleasant.

Of course, the mandate of One Above and Seven Below and of my blog is to present the Halachic viewpoint. We are Halachic Jews after all (aren’t we?) and I have discussed numerous Halachic topics over the years. In order to do so responsibly, I need to research all of these topics at length.

Moreover, in my ongoing training as a Toen Rabbani (still not finished) I have had to learn a tremendous amount of Choshen Mishpat and Even HaEzer and, believe me, these are where the surprises are.

Consider the following.

Chaim lives in an average size apartment in Har Nof which he owns. His family is growing and he really would like bigger living quarters and he even has a nest egg of savings which he is willing to use for this purpose. He knows he can find a suitable solution by selling his apartment and moving to another less expensive location, but he loves his location and his building and neighbors. Everything is great right where he is except he needs more space.

One day his next door neighbor informs him out of the blue that he is moving. He was only renting and the landlord did not want to extend his lease. The landlord needed cash so he is now selling the apartment to a young family making Aliya from France.

Chaim is livid! If only he knew. Nobody told him! He would have been happy to offer on this adjacent apartment and combine it with his and it would be the ideal solution to his problem. Now, this potential opportunity evaporated to air and he is no closer to his dream than yesterday.

Well, Chaim may have been daydreaming when they were learning Bava Basra in Yeshiva, but if he paid attention, he may be aware that in Halacha there is a law of bar metzra. The law of bar metzra says that if one person is selling real estate, the one who owns adjacent real estate has priority to buy it as long as all other details are equal – at least the same price, at least the same terms, cash for cash, etc.

Even if the original seller and buyer have already gone to contract, the bar metzra can rush to Beis Din and petition them to nullify the contract and order the seller to sell to him. All this is in Choshen Mishpat 175. It’s worthwhile to know it.

So now let’s say Chaim got tipped off about his rights and runs to BD and makes his case.

Good for him.

However, Choshen Mishpat 175 is a very long siman. It comprises 63 articles and they all count. So, let’s say the couple from France doesn’t feel like starting from scratch and looking for a new place. The French husband goes over the siman and stumbles across article 47. Article 47 states:

If one sells to a woman or to young orphans, there is no counter claim of bar metzra…

The Rema gets a bit tougher:

If she bought it together with her husband, the bar metzra cannot even remove the husband.

Whoa! Mr. Frenchman is buying together with his wife. Looks like bar metzra doesn't count.

Poor Chaim. His dream is back in the clouds. He will miss his own bar metzra. Chaim is lost!

But wait! Chaim gets persistent and decides to really go over this siman. Or, he gets a hold of a toen who knows his stuff. Chaim introduces himself to the Rema at the end of article 49:

This is all if the buyer is from this city and cannot find a house anywhere else, but, if not so, the neighbor has priority over everyone else!

Ahah! The couple from France do not yet have a foothold in Har Nof. There is no reason they cannot search in Bayit VeGan (more French speakers there anyway). Chaim is back in business!

In truth, not all dayanim will look at these offsetting Halachos the same way, so it is not certain who will win this fight, but the point is, it pays to know the rules and know Choshen Mishpat 175.

Incidentally, once we are in the neighborhood (get it?), a few months back one of my sons WhatApped me about a scandalous occurrence in Kiryat Moshe (of all places) where, apparently, a dati person sold his apartment to an Arab because he got a great price. Naturally, all of the neighbors and Chardalniks (this is Merkaz HaRav territory) were up in arms with rage. But what could they do about it?

Well, some bright Talmid Chacham remembered Choshen Mishpat 175:40 which says:

If one sells or rents his property to a non-Jew, we put him in a shamta until he accepts upon himself all incidental damage that may arise from the non-Jew…and if a damage arises in the lifetime of the seller (and then he passes), his son must pay the damages from the seller’s estate.

Even this is not that simple. The very next article (175:41) gives a proviso:

This only applies if he is capable of selling or renting the property to a Jew for the same price but he is not obligated to sell it to the Jew for less.

Case closed? Not yet. This article continues:

But if it appears that the non-Jew is buying in order to disrupt the Jew’s settlement, it is all according to how the dayan views it.

Incidentally, all of this is meant to apply only outside of Eretz Yisrael because in Eretz Yisrael, it is prohibited to sell property to a non-Jew under all circumstances because of Lo Techanem (Devarim 7:2). Except that Lo Techanem is hard to enforce in today’s Eretz Yisrael. But it could be that trhe proviso of Article 41 that the seller does not need to sell for less will not apply in Eretz Yisrael because of Lo Techanem.

Anyway, I have no idea what became of that incident in Kiryat Moshe. But the bottom line is:

We all need to know the rules. It can save us a bundle of money and heartache.

This is what I had in mind when I first wrote my book and described the distinction between the “consumer” (amateur) and the “provider” (professional).

Over the years, I have written about many important Halachic issues and my purpose was to reveal some of the surprises to the “consumers” because it is so important to know the rules. Here are some examples:

·       Petzuah Daka – Anyone who needs prostrate surgery needs to get Rabbinic guidance (although in most cases, the standard surgery is permitted). Not only is it absolutely forbidden to undergo a vasectomy, but if one does so, he cannot remain married.

In my courses as a Toen Rabbani I am subscribed to an email group that sends us all of the latest rulings from the Beit Din HaRabbani. This covers all aspects of Even Ezer.

One recent ruling involved a woman who wanted to divorce her husband and to ensure this, she claimed he underwent a vasectomy in the US. The husband did not deny it but said he is willing to undergo a procedure for reversal. The Beis Din ruled that we do not look for the future and right now he is a Petzuah daka. He was given a ruling of Kofim LeGaresh which is the highest level and he can be forced with corporal punishment to divorce his wife.

·       Prenups – It is very difficult for a man to conditionally waive his rights to his wife’s earnings in advance. Either he does it unconditionally or it is not waived.

·       Molestation and Kehuna – As more and more incidents of this crisis arise in well-established Jewish families (R”L) and we are all concerned about the emotional welfare of the abused child, we cannot overlook the Halachic angle. If a young girl was molested with true sexual contact – front or back – by a father, brother, or non-Jew, she is forbidden to a Kohen. Any contact below the waste must be investigated and brought to a Rav.

·       Malshinus – These are the Halachos of mesira and rodef that I devoted so many posts to. The Halachos are right there where I say they are and even so, so many Jews cannot accept them.

·       Extraditing a Jew – This was one of the biggest chiddushim.  A Jew cannot be extradited outside of Eretz Yisrael even in our times of galus. It’s right there in Yoreh Deah 267:85. I suppose some prejudiced people can argue that it doesn’t apply to a regular Jew, only a slave, but it’s very hard to justify such a viewpoint.

I have one more topic to discuss.

I am studying to be a Toen Rabbani. In case you do not know what a Toen Rabbani is, he is a Halachic advocate. Just like it is a lawyer’s job to advise his clients of the laws that pertain to his case, and to argue before the judge to interpret the laws to the benefit of his client, a Toen Rabbani does the same in Beis Din when the code of laws in question is the Shulchan Aruch. The prime area where a Toen is needed is in the area of family law – shalom bayis problems and divorce. Especially because most of the people in Eretz Yisrael that show up to a Beis Din for family issues are secular Jews who do not know the first thing about Halacha. In Beis Din they will learn a bit about the Halacha for the very first time.

And they will be very surprised.

But sadly, even quite a few of those who are versed in Halacha show up to Beis Din HaRabbani for shalom bayis problems. And it’s heart-rending. The interesting thing is that we are now discussing people who know day to day Halacha. They know enough Halacha to keep Kosher and Shabbos, to daven and make brachos, and how and when to use the mikveh.

These topics are in Yoreh Deah and Orach Chaim. The sad thing is that they do not know much about Even HaEzer. Sure they learned a few prakim in Kesubos and Gittin when they were in yeshiva, but by the time these Halachos get into Even HaEzer they look a lot different.

These are learned people and, when they set out for Beis Din, they think they know what’s in store. But as I said, one needs to know the rules with all of the details. And when they get to Beis Din, they learn some rules for the very first time. Rules they should have known before. And if they would have known these rules up front, maybe they wouldn’t have to go to Beis Din at all and learn them when it’s a bit too late.

Here’s a true story.

A husband and wife were at loggerheads and were headed for divorce. In the interim they were together in one place talking to a counselor by phone. At one point, the husband was on the phone and telling the counselor his version of whatever. The wife wasn’t happy with what the husband was saying so she pulled the phone out of his hand while he was in mid-sentence. The husband was obviously quite irritated and angrily grabbed the phone right back.

Shortly after this incident, the wife related this incident to her lawyer (it may have been an inept toen). He told her that she has a case for domestic violence and she should immediately file a complaint by the police and request a tzav harchaka (restraining order). She did as she was instructed.

When the story got to Beis Din and BD could figure out that this complaint to the police was ungrounded, they slapped her with moredes and she lost all rights to spousal support and to her kesuba.

Well, maybe she can sue her lawyer for malpractice and get it back.

When even the most observant couples go to Beis Din, they commonly squabble about what he does or doesn’t do and what she does or doesn’t do. Oft times they are shocked when the dayan asks him, “Why do you think she is required to do that?” or he asks her, “What makes you think that he is not entitled to do that?”

They never really knew the rules. And if they did, maybe they wouldn’t be in Beis Din.

When I was a chassan more than 30 years ago, my chassan teacher taught me all of the Halachos of Taharas HaMishpacha like standard and gave me the standard pep talk about how to interact with my wife during the night and during the day. He also did one extra thing that I don’t think was standard. He told me to read over the Kesuba up front and make sure I understand what it says.

I am told that today, there is a little more training about worldly issues. But still something is missing.

The rules.

Chassanim are taught the relevant parts of Yoreh Deah 183-200 but they are not taught the relevant parts of Even HaEzer 69-90. This is where the rules are. I really think that Chassan and Kallah lessons need to include these Halachos.

I haven’t completed the Toen Rabbani course yet, and even when I will, IY”H, I am really not too eager to take on the job. It’s a very messy profession. Please, I don’t want your business. 

Learn the rules up front, boys and girls. Trust me, you don’t want to pay me big shekels to spring on you surprises.

Prenups III: The Waive Theory vs. the Particle Theory

Author’s note – This post is intended to clarify some of the Halachic assertions presented in the previous two posts (Part 1 and Part 2) and address some challenging comments. Once again, it includes some highly technical Halachic discussion and is geared for Halachic savvy readers. In an effort to make the points as succinct and user friendly as possible, I was unable to explain some of the points at length. Please contact me offline (1a7b.author@gmail.com) or in the comments for more detailed explanations.

For readers who are not interested in the Halachic debate, you can get a synopsis of this post in the closing section with the heading: Bottom Line.

Of the two pro-PNA commenters who weighed in at my first post, it looks like one of them has given up on me. The second, R. Daniel, still thinks there’s hope.

Incidentally, R. Daniel lives right here with me in Yerushalayim (though not in Har Nof) so I can assume that he understands the prevailing mentality here. I don’t believe we have ever met, but I would be happy to. You know what they say: You never know who your next mechutan will be.

R. Daniel pointed to one of the Halachic assertions that I posited as follows:

"So, does it (the “siluk”) take effect at “the time of the wedding”?

It would, indeed, if this were when he wants the siluk to take effect. But because he does not want it to take effect now and is freezing it for later, it cannot."

And this is what he wrote:

This is a critical mistake. Normally, at the time of the wedding the husband gets the right to the ma'asei yadayim. The siluk prevents him getting some of this right at the time of the wedding. He still gets the right to most of the ma'asei yadayim, but he is mistalek from the right to ma'asei yadyaim for the period after the couple's domestic residence ceases to be together.

Clearly, R. Daniel disagrees with one of the assertions that I made in my post. He calls it a “critical mistake”. This is serious.

I have always acknowledged that I am not a posek, just a Toen Rabbani in training, and my blog (and book) is merely a forum for me to think out loud. (People complain that I am a very loud thinker, so I try not to think too much after midnight.) I don’t need to be right. That is the domain of genuine poskim.

That said, I don’t think I am making a mistake, critical or otherwise, but as a Toen, I can only state my case and the opposing council can state his and the powers-that-be (or the audience) can judge. So let’s understand what I am saying and let’s understand what R. Daniel is saying and let’s evaluate how critical all this may be.

As I wrote in Part 1, the main concept of Siluk is discussed at length in Shulchan Aruch Even HaEzer 92. It is discussed there exclusively in regard to the proceeds of nichsei malug. There is no indication that it can apply to maaseh yadayim at all.

Yet, sure enough, the concept is brought down by the Rema almost as an afterthought in Choshen Mishpat 209:8 and the poskim seem to apply it to any type of future “zechus” which can include maaseh yadayim. But, even for maaseh yadayim, it works on the same principle, which is that the potential beneficiary is stating: אי אפשי בתקנת חכמים – “I am not interested in [benefiting from] this Rabbinic ordinance [which was only implemented for my benefit]”.

The baseline case discussed in Choshen Mishpat is where a person wants to renounce his upcoming eligibility to this benefit (mesalek). Says Rema that in contrast to being mochel the actual monetary benefits which cannot be done in advance, he can renounce his upcoming eligibility so that it should not begin to take effect. This is as much as the Rema and later poskim tell us and it implies that the person is blocking the eligibility from taking effect at all – from the moment he would first become eligible. They do not discuss a more complex scenario where the beneficiary wants the eligibility to take effect now but is stating that, even though he wants it to take hold, he is as of now renouncing a part of the eligibility that may come at a later time (not the benefits, but the eligibility).

This is what is happening in the BDA Prenup. Can this work?

This depends on an age-old debate in quantum physics – the Waive Theory versus the Particle Theory.

My position- the Waive Theory

I maintain that the concept of אי אפשי בתקנת חכמים is one continuous unbroken waive of the rights – or, eligibility – to the benefits that are granted.  It’s all or nothing; either you want the eligibility to take effect or you don’t. One cannot break it up into pieces and say, “I want it to take effect under the current circumstances, but I am already renouncing it under a different set of circumstances which are definitely not in effect now and may never be. “

I see this as contradictory and somewhat absurd. In my mind, one who enacts this is really renouncing the future benefits themselves and not the “eligibility” toward them despite his choice of words. In short, it reverts to a mechila of the earnings, not a siluk. And we know that one cannot renounce future benefits before they come into existence.

R. Daniel’s position – the Particle Theory

R. Daniel maintains that אי אפשי בתקנת חכמים can be broken up into particles.  Each moment that one is enjoying these rights is a new zechus of benefits unrelated to that of a moment earlier. המחדשים בטובם בכל יום תמיד תקנת חכמים. What’s more, the eligibility for all of these particles, present and future, is granted all at the moment of nissuin so as to enable one, at that time, to accept whichever particles he wants and relinquish up front those that he doesn’t.

I suppose in gemara talk, we can call this פלגינן “palginan (we split)”. We say this regarding problematic testimony wherein there are times when “we split” the testimony and accept what is kosher and disregard what isn’t. Here, as well, we are splitting the takanas chachamim and accepting it when it serves our purposes and, at the same time, claiming it doesn’t even begin to take effect when doing so does not serve our purposes.

This position is vital.

In my previous post, I explained why, according to my Waive Theory, the waiver in the BDA Prenup cannot take effect right after the nissuin. And since it can only take effect at zero hour (separation or notification), the husband has ample opportunity up to that point to retract it. Comes R. Daniel and he explains to me that if one maintains the Particle Theory – “The siluk prevents him getting some of this right at the time of the wedding. He still gets the right to most of the ma'asei yadayim…” – thus, all is well. We must conclude that Rabbi Willig, Shlita and the framers of the BDA Prenup maintain the Particle Theory as well.

R. Daniel seems to be very smug that his perception is correct; yet I don’t know on what basis he can be so certain. All that I, or anyone, knows is the baseline Halacha professed by the Rema in Ch”M 209:8. This Halacha merely states that a siluk can work on a zechus that has not yet taken effect. Period. R. Daniel and the BDA are extending it to another level of “palginan” and I wonder how anybody can support this extension.  I suppose that his strength is from the fact that the wise sages of the BDA are in his corner. So this must be the true viewpoint. And I am making a mistake. A critical mistake!

How critical is my “mistake”?

Well, at the end of the day what is the difference between the two “theories”? I can only think of these three:

1)  The Integrity of the Text of the PNA

According to my Waive Theory, the declaration in the PNA that “and I recite that I shall be deemed to have repeated this waiver at the time of our wedding” is totally meaningless since no siluk takes effect at that time. At best, the text needs to be changed to read, “and I recite that I shall be deemed to have repeated this waiver at the time of our separation”.  In short, the text needs to be changed.

According to the Particle Theory of R. Daniel/BDA that one can do a partial siluk at the time of the nissuin (wedding) that will take effect in its time, there is no need to change the text of the PNA.

I must add that even if the language of the “I shall be deemed…” clause does not need to be changed, there is another part that must be changed. We previously stated that the terminology: “I waive my halakhic rights to my wife’s earnings…” is too ambiguous in that it can mean to waive by means of pardon (mechila) or by means of abdication (siluk). Since mechila cannot work according to all opinions, the PNA must be clarified to clearly say that we are dealing with siluk and the text should be modified accordingly.

2)  Retracting the Siluk up to the Time of Separation

According to my Waive Theory, at least, up to the time that the separation takes place, not only can the husband retract the waiver clause, but there is not even any need to because no waiver is in effect.

According to the Particle Theory of R. Daniel/BDA that there is a pending siluk in effect until the time of the separation, there is a dispute among the Poskim if it can be retracted in the interim. I wrote about this in the previous post and I will try to briefly explain it here.

The pending siluk that takes effect is the siluk that is discussed in Ch”M 209:8 and, as such, carries all of the issues that are presented in that Halacha. This is where the Ketzos brings a dispute of the later poskim headed by the Moharit who says that in a case where there is only a declaration with no kinyan, there is no problem retracting it before it comes into existence because אתי דיבור ומבטל דיבור – a later declaration nullifies an earlier one. Although the Ketzos challenges him, the claim of the Ketzos defies comprehension because he brings a proof from a case of Yibum very different than ours – a case which is not dealing with property that is not in existence and where there was a kinyan on this property. This is contrary to the subject matter of this Halacha. This implies that the Ketzos may agree in our case.

Beyond this, the conclusion of the Ketzos himself is that the issue of retraction remains a dispute in Halacha (Rema and Tumim vs. Shach in Ch”M 112:1). It is beyond the scope of this post to elaborate further with the Halachic technicalities, but after studying this closely and sorting out the nuances in the cases brought as “proofs”, my view is that it is virtually unanimous that in our case the siluk can be retracted as long as the object of the siluk is not yet in existence.

3)  Retracting the Siluk after the Separation

In line with my Waive Theory, it appears to me that if the language is changed to assert the siluk from the time of the separation, it is quite possible that it will take effect and be irrevocable from that point.

According to the Particle Theory, ironically, since there is a new zechus for eligibility every subsequent moment, and each new moment relies on the “pending” siluk of “time of wedding”, then the dispute mentioned in the previous section will extend indefinitely even after the time of separation. This is because, according to the particle theory, each approaching moment requires a new siluk and one can always retract the siluk for the moments that have not yet come. According to the opinions in the dispute that one cannot retract a predesignated siluk, then we are okay. But the dispute stands.

Bottom Line

Here are the final results of our discussion:

·         Perhaps the language of the PNA has to be changed and perhaps not. Although it should definitely be changed to clarify the waiver as a siluk.

·         Either way, the waiver is either totally non-existent or pending until the time of separation.

·         According to my perspective that the waiver is non-existent, there is no waiver to retract until that time. According to the other perspective that it is pending, retraction is a matter of Halachic dispute and, in case the husband indeed retracts, we must be stringent with a question of get meuseh and honor the opinions that the retraction is valid.

·         According to the BDA perspective (if they do not change the text), the Halachic dispute may extend even after the separation and we must likewise honor the opinions that retraction after the separation is valid.

So, whether you accept my position or R. Daniel’s (BDA), the prevailing picture is that the waiver is revocable at least until the point of separation if not even later.

Perhaps there is a “critical” mistake afoot. But either it’s not my mistake or it’s not so critical.

Yuchsin and Genetic Testing – Part 2: Pasulei Kehal – The “Black List”

Author’s note – Please see Part 1!

Case X - true story:

Reb Tzuriel Boblil, a renowned Israeli askan in Halachic family issues is being featured on Israeli radio and he is taking calls from listeners. A young woman calls the station and says the following:

I have a problem. If you cannot find me a solution to my problem, I will kill myself right here over live broadcast!

Says Reb Tzuriel: You have called the right person at the right time. Consider yourself resurrected from the grave! Tell me your problem and, B’ezrat Hashem, we will get it solved.

Her story:

I am a 19-year-old chayelet (soldier) and I have a love interest. We went one day to the Kotel HaMaaravi and there he proposed to me. I very excitedly accepted his proposal and was in ecstasy. As we must, we went to the Rabbanut to register our marriage. The Rabbanut checks our IDs and says, “Stop!”. “My dear lady, we cannot authorize you to get married. We have your name on the Blacklist as a probable mamzeret.”

It appears that 19 years earlier, this woman’s mother, who was married at the time, sued a man who was not her husband for paternity and child support of this girl – and the man agreed to it and paid! (Lots of questions here, but he gave no further details of this backdrop). The case came to the attention of the Rabbanut at that time (Comment – there must have been a subsequent divorce, or else there is no reason that this case would reach the Rabbanut) and they automatically blacklisted her name as a probable mamzeret.

Until the moment they went to register to get married she had no idea about any of this, so it hit her out of “left field”. Now, if she can’t get out of this, her life is ruined forever.

What to do?

This was actually just one of a string of stories that was the opening volley of a lecture that I attended about a year ago in “Toen Rabbani” school. The lecture was delivered by Rabbi/Lawyer Tzuriel Boblil. 

(If you are good with Hebrew, you can see the entire lecture here:

https://www.youtube.com/watch?v=8xfAu5jXA28&t=995s

At around the 50 minute mark, the camera-man pans the audience so you can get a clear cut shot of me right in the thick of things).

Reb Tzuriel Boblil is a very accomplished Torah scholar – an alumnus of Yeshiva KBY – as well as an attorney. Like any decent professional, he is very devoted to helping his clients. Sadly, most of his clients bring along very heavy baggage. Reb Tzuriel specializes in working with the Rabbanut and Gedolei Horaah to find solutions for some very devastating problems. He is a humanitarian and a problem solver. Overall, a good guy!

In his lecture, he talks about thinking out-of-the-box and using “creative” Halachic techniques to find solutions to these problems. He claims that the vast majority of these problems can be solved within the framework of Halacha. I am all for solving problems and getting people out of fixes, but I think there are limits to how far one can stretch the rudimentary Halacha.

The story of the chayelet was the fourth or fifth on his list. His opening story was also a “doozie”.

Case Y –

One fine day, a nice Israeli husband chanced across his pregnant wife’s computer which was open to her Facebook page. He decided to look at it and saw that she was communicating with some unknown (to him) male acquaintance. She wrote to him: “I can’t be sure if its his or its yours because when I got pregnant, he was in miluim (reserve duty).”

Needless to say, this did not enhance their relationship.

Reb Tzuriel did not expand on this story, but this one opens up a bigger can of worms than the earlier one.

In both cases, one of the main questions is the Halachic status of the offspring. Is it a mamzer – pasulei Kehal – or is it a kosher Jew who can marry any other kosher Jew? But in this second case, there is much more at stake. Paternity!

The first ramification is: who is responsible for child support for this kid over the next at least 18 years? Trust me, the betrayed husband isn’t going to want to shell out the 300-600K shekels that it costs to raise a kid that isn’t his. Especially if he breaks with the wife which almost certainly happens in most cases and especially if he thinks the child isn’t his.

However, if it can be firmly established that the child is his, he may be advised (and even may prefer) to “disbelieve” his wife on her cheating and make up with her and stay married for the sake of the child, which does indeed belong to both of them.

This is a situation where a DNA test would really come in handy. Of course, the results can push the case either direction. A match for the husband will clear things up and may even save the marriage. A match for the “lover” will cause havoc and could possibly render the child an official mamzer. Should we order one or not?

Reb Tzuriel explains that the law in Israel is as follows. The court officially puts the interests of the child in question above everything else. In general, the court will rule for whatever course of action is best for the child. In a situation that can cause mamzerus, the court will not allow a DNA (or any paternity test) without getting a confirmation from the Nasi of the Rabbinate. As a rule, the Rabbinate forbids these tests.

This puts numerous “threesomes” in a very awkward position. The Rabbanut does not want to allow a paternity test and wants to establish the chazaka that the child belongs to the proper husband and is a kosher Jew. Also, by secular law, the husband of any woman who has a baby is the legal father and obligated in child support unless proven otherwise.

On the one hand, what will happen is: Shimshon marries Delilah. Delilah dallies with Shmendrik and they produce a love child, Nimrod. Shimshon gets wind of this and is certain that Nimrod is not his. He even took a private paternity test on the side and the results confirm that he is not the father.  

Shimshon dumps Delilah who wafts into the waiting arms of Shmendrik and they marry. As is the standard, Delilah gets custody of Nimrod (more so, because Shimshon doesn’t really want him) but still claims to the court and/or Rabbanut that Shimshon is the father so that Nimrod doesn’t get blacklisted. Neither the Rabbanut, nor the court allow Shimshon to take a paternity test and will not acknowledge the private one he took.

Delilah sues Shimshon for child support – successfully. Delilah and Shmendrik happily raise Nimrod and tell him and the world that he is theirs – which happens to be the truth. Everyone forgets about Shimshon, and Nimrod, who truly is a mamzer, is cleared by the Rabbanut. Thus, Shimshon is cuckolded and divorced and saddled with eighteen years of child support for a kid that it not his and which certainly makes it hard for him to remarry. Shmendrik and Delilah are enjoying life, collecting cash from Shimshon and laughing all the way to the bank. 

This is quite reminiscent of the similar tale in the gemara Gitten 58a which sealed the fate for the second Bais HaMikdash. A Greek (Roman?) tragedy!

Moreover, Nimrod will grow up and get married under a "false" guise that he is kosher and raise a new generation of "hidden" mamzerim.

How can we avoid this?

Before we continue, let’s look at another true story. This one shows up in Wikipedia and involves Maran Harav Ovadia Yosef, ZT”L. I will copy paste.

Case Z –

An example is a contemporary responsum by the well-known Israeli posek, Ovadia Yosef to Rabbi Grubner of Detroit, Michigan, establishing an impossibility to prove mamzer status in a situation where the evidence might appear to be clear-cut.

The case involved the daughter of an aguna,^[23] who had been married by a Haredi rabbi to a husband who subsequently converted to Christianity and refused to participate in a Jewish divorce. The mother eventually divorced and remarried civilly and had the daughter years later. The daughter, who had been raised as an Orthodox Jew and attended a Haredi day school, brought up the question of her status herself prior to an impending marriage.

Rabbi Yosef proceeded systematically to disqualify evidence that a prior marriage had ever taken place. The mother's evidence was immediately disqualified as an interested party. The ketubah (Jewish marriage contract/certificate) was never found. The rabbi who performed the marriage was contacted, but Rabbi Yosef wrote that his testimony could not be accepted without the ketubah, and in any event required corroboration by a second witness. Attempts to contact the husband were abandoned after an adversarial conversation with his new, non-Jewish wife. Thus, Rabbi Yosef concluded there was insufficient evidence that a valid prior marriage had ever taken place.

Rabbi Yosef then proceeded to establish the possibility that the former husband might be the daughter's father. The mother testified that her former husband occasionally brought alimony payments and came for visitation in person and hence the two were sometimes at least momentarily alone together. Applying an ancient rule that when a husband and wife are known to be alone together behind a closed door the law presumes sexual intercourse may well have taken place, Rabbi Yosef concluded that it was possible the former husband was the daughter's father and hence Jewish law, which very strongly construes all evidence in favour of birth within marriage, had to presume that he was. Thus, Rabbi Yosef concluded that there was insufficient evidence of either a former marriage or that the new husband was the father, and hence he concluded that no evidence of mamzerut had occurred.

I don’t know how accurate this story is and there are numerous points that raise [my] eyebrows. Rav Ovadia ZT”L combined two approaches.

(1)        He “invalidated” (challenged) the eishes-ish status of the mother. I thought it was pretty neat for him to do this without pasulling the first marriage. He didn’t claim there was no first marriage; he merely said that there is insufficient proof to establish 100% that there was one and that the mother was an eishes-ish. (He had a lot of divine help on this. How convenient that the ketuba “wasn’t found”?! I also wonder what happened to the eidei Kiddushin, but we must assume that the Rabbi did not remember who they were and it just so happened that they couldn’t reach the first husband to ask him. Another “convenient fact” in this case.) The beauty of this approach is that we can concede that the real husband is not the girl’s father and still get her off the blacklist.

(2)        He “validated” the possibility – no matter how minute – that the real husband is the girl’s father.

The question is: Was Rav Ovadia’s hetter based on either one of the approaches independently (or as a “tziruf”)? Or, did he need to have both approaches in effect so that the hetter could be based on a sfek-sfeika (double-doubt)?

We’ll come back to this after we examine the main point of this discussion – DNA and genetic testing.

What do DNA tests do for us Halachically?

There are three distinct applications of DNA testing to deal with three distinct Halachic issues:

A.   Direct match – When DNA is used to identify an unknown person but not to link one person to another. This is important for cases of missing husbands and potential agunot. A wife may be able to provide a sample of her husband’s DNA from his shaver or toothbrush and the lab is trying to see if it is an exact match.

B.   Ancestral – When DNA is used to trace a known person to a given population or race from previous generations but not necessarily to an individual. As we saw in our last post, this is what is used to “substantiate” claims of Jewishness.

C.   Paternity – When DNA is used to determine who is the direct first-generation ancestor of a known person. In short, “Who’s your Daddy?”. This kind of testing is vital to paternity and mamzerus.

How Halachically sound is this testing?

On the one hand, the information we get from DNA testing is uncannily precise. But it is just as uncannily inconclusive.

In situation A – Agunos – we may expect this to be the most conclusive scenario, a direct match! But, ironically, it is the least conclusive. In this situation we have a serious technical problem. Sure, the saliva in the toothbrush or the hair in the shaver may be an exact match to the dead body in question. But how does a posek know conclusively that the saliva or hair came from this missing husband? Sure, the wife says so and it was exclusively his toothbrush, plus the odds of some random saliva perfectly matching the body we assume to be the husband is “mathematically impossible”, but this is not evidence in Halacha. It would alone be a long shot to find two witnesses that this was his toothbrush or shaver (I am not sure that one witness would be believed on forensic evidence even for eidus-isha), but it is certain that nobody can testify firsthand that the hair or saliva is his.

As such, the most that a DNA test can do is provide an “umdenah” (inconclusive proof) to attach to other factors under consideration. (Note - There is a possible alternative if the dead person has a child or parent, we can match DNA from the dead person to that of the child or parent. In this case we can verify the source of the DNA as we are about to see in the next paragraph. A posek may prefer this approach.)

In situation B ­– Ancestral – we are comparing DNA that we know comes from a known live person with that of unknown dead persons. We may be able to positively attest to both of these sources of genetic material, but this is as far as it goes. At least in the case on non-mitochondrial DNA, it doesn’t tell us much; only what percentage of one’s ancestry can be linked to a given population. It is at most a relatively weak “umdenah”. The mitochondrial DNA which can positively determine direct maternal lineage is much more significant. In the Headlines interview, Harav Yehoram Ulman asserted that it is so conclusive that it can be granted a status of “siman muvhak” (unique characteristic) which is better than an umdenah. In general, we are very happy to establish Jewishness (unless it may also establish mamzerus) so it is not surprising to hear that many poskim will accept the findings of mitochondrial DNA to confirm Jewishness when there are additional indications.

We now arrive at our main topic, situation C – Paternity. Paternity is a double-edged sword because there is a long list of ramifications that ride on it.

At the top of the list is Yuchsin. Remember those 10 levels? It’s not always limited to a question of mamzerus – pasulei Kehal, if the person can marry a regular Jew. It gets a lot stickier if the husband or the suspected father is a Kohen. Is the child a Kohen? Can he go to a funeral, get the first Aliyah, marry a gerusha? A bit stickier if this is the wife’s first baby (a male) and one of the potential fathers is a kohen or levi and the other one isn’t. Is there a requirement for pidyon haben? With a bracha or without? What if neither one is a kohen or levi but each one refuses to do a pidyon haben? Can we be motzi mammon m’safek?

And it gets a lot stickier if either of these potential fathers has just one other son from a different woman. Then this other son grows up and gets married but, tragically, passes without children of his own. And, let’s say this “safek mamzer” is estranged from both sides, no longer religious (if he ever was) or is nowhere to be found (or demands a big payoff to do chalitza). Now we have a “yevama l’shuk” agunah d’oraysa on our hands! Or, let’s say this safek who got a hetter like Case Z and married a regular girl is the one who dies without children. There is a brother on each side but one of them doesn’t want to play?

After all of this comes simple yerusha and aveilus. Who to sit shiva for? What about for siblings?

Then, of course, are the legal issues of child support, custody and visitation.

And lastly are the ethical and moral issues – the right for one to know who his real father is, the right to associate with extended family members (grandparents, cousins) and to know the medical histories of his parents for health reasons.

For every single one of these issues the child, the “fathers”, the courts, and the Beis Din, need to know the truth. And for all of them, except for one, we want to know the truth.

The only real exception is the mamzer question. The prevailing Halachic consensus is that whenever, for lack of knowing the empirical truth, we can find a way to allow this child to be in Kehal Hashem, we don’t want to know otherwise. Better to stay in the dark.

But then, all of these other issues are going to come back to bite us.

One of the most serious and common issues is the issue of child support. If a husband (remember Shimshon?) was bilked and spurns both his wife (Delilah) and this kid (Nimrod), he certainly doesn’t want to get saddled with child support payments. But Delilah, who has since taken up with the “other guy” (Shmendrik), will swear up and down that she was faithful to Shimshon and might insist on not doing a paternity test “for the sake of the kid” just like I wrote earlier. Wouldn’t that just be cushy?

But, sometimes it backfires. If Shimshon has to pay, and Delilah and Shmendrik are "officially" saying the boy is Shimshon's (which is why he is paying), then Shimshon may also “claim” the kid. He may want custody and/or visitation and  to get the kid every other Yom Tov and for family gatherings as a father – and he might get it. After all, he’s paying for it. Check out this story. Though Delilah may have married Shmendrik and wants to bring up Nimrod as the product of her current union, which is the truth, try explaining to this kid why he is not a mamzer and yet is sharing his life with Shimshon who she tells him is not his father (but she told the court and BD that he is).

Another point. Let’s say Shimshon pays quietly and stays out of the picture and Nimrod doesn’t find out throughout his childhood that Shimshon even exists; what happens when Nimrod grows and is married with children and then discovers from a talkative relative or from some document he comes across that his true parents who raised him only married when he was three years old and at the time he was conceived and born, his mother was married to somebody else (Shimshon) k’das Moshe v’Yisroel?

What a catastrophe!

So, let’s get back to real life and review Cases X, Y, and Z and see if DNA testing is going to help or hurt.

But, due to the lengthiness of this post (I am only about half-way done), I think I need to cut it short and close this post here. The remainder of this post is almost finished so I hope not to hold up the show for as long as I did since the previous post.

So please bear with me and stay tuned for…

…Whitewashing the Blacklist