Prenups II: The Emperor's Waiver has no Close - Part 2 - Mechila

Author's note - This is Part 2 of a multi-part series. Please see Part 1 and the Author's note in the heading.


Hello, readers, I am back with Part 2. I apologize for the long delay.

One cause of the delay is the fact that this topic calls for a ton of research. I spent hours scouring the poskim for this post. A second cause is the fact that I had recurring dilemmas as to how to present a critique on highly technical Halachic issues in a way that can be followed by readers who are not Halachic techies. I had to scrap several earlier drafts of this post. This post is for Halachic savvy readers.

In some of the elaborate Halachic series’ such as the Kol Koreh (Mesira) series and the Malka Leifer series, it was necessary to prelude the main posts by dedicating a special post to list and define Talmudic terms and sources. Logic dictates that I should do the same here. Feedback dictates that it is probably a fruitless undertaking so I will try to get by without it. So let’s move on to Part 2.

As of now, two people were brave enough to post comments to Part 1. Both of whom made a point of reminding me that there is a Hebrew version of the main body of the PNA that is endorsed by a number of very prominent poskim that include Harav Hagaon Rav Zalman Nechemia Goldberg, Shlita and Maran Harav Ovadia Yosef, ZT”L.

In response, I must quote one of those commenters, “You are missing my point.” 

I am not trying to assert that the PNA is invalid as automatically engendering a get meuseh. Who am I to say so? Besides, if I wanted to, I can point to a substantial group of prominent poskim who are quite non-supportive of this agreement to say the least. It wouldn’t have to come from me.

What I am trying to assert is that even if the PNA is Halachically valid, there are issues that compromise its enforceability and, by extension, its effectiveness.

I am not the only one who noticed an enforceability issue here; Rabbi Willig saw it, too. But I think it is being swept under the rug and is much more serious than it is being made out to be.

So, to respond to the commenters, let’s refer to the Hebrew version of the PNA. And let’s refer to the English one (Standard Version). One may notice a slight variation. Did these commenters who laud the text of HRHGZN”G notice this subtle yet crucially important difference?

And what is this variation?

In the current English version there is an odd clause added in. It says: “and I recite that I shall be deemed to have repeated this waiver at the time of our wedding.” These words are not in the original Hebrew, so why are do they appear in the current English?

Says Rabbi Willig (70:45) that, without these words, the waiver part of the agreement will not be enforceable. He points to the gemara in Kesubos (83a) that tells us that one cannot relinquish any “rights” prior to the wedding because he hasn’t been awarded them yet. The opportune time for such a thing would be after the kiddushin but before the nissuin. So by repeating this waiver after the kiddushin, or being deemed to have done so, we have grand-slammed the ball on to Waive-land (Ave. – sorry, Cubs fans, wait till next year century).

So says Rabbi Willig, Shlita. With a poker face, I am seeing Rabbi Willig’s bet and I am raising him. He acknowledges that without adding these additional words, the waiver aspect will not be enforceable. I am betting that even after adding these words, it is not enforceable.

What gives (or takes)?

In this clause, the husband agrees to “waive his rights to his wife’s earnings…” What rights are these?

In Part 1, I asserted that we need to differentiate between “dividend” earnings that come as a result of revenues of property holdings (Peiros), and “job” earnings that come as a result of profits and wages (Maaseh Yedayim). I explained why the waiver cannot apply to the Peiros. The Peiros benefit is a result of obtaining joint title in the property. Once this title is acquired by the husband, the only way to “waive” it is to transfer his share of the title back to his wife.  This requires a fresh kinyan at the time of relinquishing which cannot be done in advance (see Chelkas Mech. Even HaEzer 92:8 SK 17). Hence, even after the PNA is signed, and even if his obligation to increase the support takes effect at the time of the signing (not a sure thing), the husband can still retract the waiver on this income as long as it (the waiver) hasn’t taken effect – which is not until the separation.

We now turn our attention to the Maaseh Yedayim (earnings). Here we will need to get very technical.

When the husband waives his rights to his wife’s earnings what is he doing?

Well, let’s pretend we live in Monopoly-land and that it is a Halachic state (like Palmtree, NY). There is a wonderful law in Monopoly-land that every citizen who passes Go is entitled to collect $200. Yippie!

Let’s assume that the law also says that if one passes Go and neglects to collect his $200, he can no longer claim those $200 – but this applies only after he passes Go, not before (see Rema in Ch”M 209:4).

Now let’s say, R. Doniel Trumpsky, a big-shot loaded gvir, is running for mayor and wants to show off his benevolence so he declares that he is “waiving his rights” to the $200. He still passes Go like everyone else and he is still entitled to the $200. He is merely abstaining from collecting the money (or cashing the check).

We would say that he is being mochel (pardoning) the $200 back to the community chest. In this context “waiving his rights” means that he is choosing not to exercise his right to collect the $200. So now he won’t have these $200 in his pocket, but nothing happens to his basic right to collect it. The “right” is still there.

This is the standard. When someone “waives” a right, it doesn’t technically mean that he gives up the right. In most cases a person cannot give up a right. The right comes from the constitution of the domain (Church or State) that governs one’s life. The 5^th amendment to the US Constitution gives us the right to remain silent. One can “waive” his 5^th amendment rights in any given instance. But it only means that in this instance he is not exercising his right. The right is still there for him to use whenever he doesn’t want to waive it. He doesn’t lose the right and cannot, even if he wanted to.

The Monopoly-land constitution was written by the founding fathers – the Parker Brothers. If you pass Go you can collect $200. That’s the law of the land. R. Doniel Trumpsky – wealthy as he is – cannot change the law. He cannot get rid of the right. But since the right is a benefit, he cannot be forced to accept the benefit. So he can waive the benefit of the right; but not the right itself.

So, now, let’s say after blowing his life’s savings on his campaign, R. Doniel loses the mayoral race to R. Hillel Clintowitz. He changes his mind about not collecting his $200. Well, it’s his constitutional right, always was and always remains. So he can now begin again to collect the $200 though he may not be able to reclaim the payments that he waived earlier.

So when he declared he is “waiving” his right, what he is saying is that, until further notice, whenever he passes Go he will not exercise his right to collect the money. In effect, the declaration means nothing because he can still collect the money next time he passes Go. Either he will live up to his declaration or not but his right to collect the money doesn’t go away. He can also change his mind even after his declaration if he still hasn’t passed Go.

This is the typical scenario and in a Halachic framework it is called mechila (pardoning or excusing).

Is there any way he can shake off his “rights” once and for all?

There may be. As a citizen of Monopoly-land he is entitled to the rights whether he wants them or not. But perhaps, if it’s not a communist dictatorship, he can renounce his citizenship in Monopoly-land. He doesn’t change any laws or rights, he just removes himself from eligibility. Likewise, suppose he is not a citizen but applies for temporary residency in Monopoly-land. He is told that as a condition for temporary residency he must “waive” his rights to the $200 even though he will have every right to pass Go. He agrees to this.

In this case, he is not pardoning or excusing anyone from giving him $200. He is either relinquishing his eligibility to the rights or not obtaining the eligibility to start with. In this context, the term “waive the rights” means to relinquish or to decline the eligibility for the benefits.

This is a less typical scenario and in a Halachic framework it is called siluk (abdicating or declining eligibility).

What comes out is that the English term “waive” is an ambiguous term that means to “take a pass” on the benefits but it can mean by way of relinquishing the benefits themselves to which he is eligible (mechila) or by way of relinquishing the eligibility to get the benefits (siluk).

So now let’s go straight back to the waiver clause in the PNA and repeat our opening question about the Maaseh Yedayim:  When the husband “waives” his rights to his wife’s earnings (at a future time), what is he doing? 

Is it a mechila or a siluk?

Let us first assume that it is a mechila. The husband is being mochel her Maaseh Yadayim back to her. (Note - Mechila is the term that is used in the Hebrew version)

If he is, there is good news and bad news.

The good news is a short and sweet Halacha in Ch”M 12:8 (one of the shortest in all of Shu”A):

Mechila does not require a kinyan.

Goodie! This means that a mere declaration, spoken in front of witnesses or signed, is sufficient.

Now the bad news - Rema in Ch”M 209:4 (noted previously):

And just as a person cannot transfer [by sale or gift] something that is not yet in existence, likewise one cannot be mochel something that is not yet in existence.

Uh-oh!

This is saying that one cannot pardon a “promised” (or obligated) benefit before the benefit is in existence. One cannot be mochel the $200 before he passes Go and is eligible to collect it.

So let’s talk about his wife’s earnings. The mechila perspective means that the husband (to-be) is now agreeing that at a future time he will be mochel (pardon or excuse) her obligation to turn over her earnings to him. This “obligation” first comes about when she collects her earnings from her customer, client or employer. Let’s say she is a wage earner and earns $4500 (an arbitrary number). She gets paid promptly on the fifth of each month.  As soon as the paycheck comes in, Chazal obligate her to forward it to her husband.

If he likes, he can pardon her obligation and let her keep her paycheck. But on the fourth of the month, before it comes in, there is not yet anything for her to forward to him. And, as such, there is nothing for him to pardon. She will have an obligation tomorrow, but there is no obligation in effect now. Moreover, this obligation is perpetual. It renews itself with every paycheck just like she is passing Go. He has to reaffirm his mechila with every paycheck or he can change his mind. He can always retract his mechila from paycheck to paycheck.

Sof davar, with the mechila perspective, his signed declaration before the wedding does not accomplish a thing. Nothing is waived. She hasn’t earned anything for him to waive. Likewise for repeating the declaration “at the time of the wedding.” Even if the PNA would read that he repeats this waiver “at the time of the separation” won’t accomplish anything. Even if they are already separated and fighting a pitched battle, and even if he honored the agreement for some time, but now he changes his position and wants to be more recalcitrant and demand her earnings (and he is being held to pay mezonos), he can still retract his waiver.

One cannot be mochel something that has not yet come into existence.

So how will Rabbi Willig, Shlita, respond to this?

Rabbi Willig is no Am Haaretz. And he will promptly call me one and tell me to look at the SM”A in S.K. 21 and go directly to the Rema in 209:8 not to pass go and not to collect $200. There, the Rema clearly states that:

"even if one cannot transfer something that is not yet in existence he can base a condition on it and likewise to renounce (l’salek) himself and his power [of attorney] from something that is not yet in existence since he has not yet obtained it."

So he cannot be mochel in advance but he can be mesalek (siluk). Or can he?

In theory, now that we are back in Siluk-land, we will face many of the same problems that were discussed in Part 1. Still, in this case there is a bit of very good news. We are no longer discussing siluk from the dividends of property holdings but rather a siluk from a “shiabud” (lien or obligation - words of the Nesivos HaMishpat ibid:28). As such, both the Nesivos and the SM”A (S.K. 29) state that such a siluk does not require a kinyan! A declaration (before witnesses) or signed statement is sufficient.

This helps us (or Rabbi Willig) but not enough. The rules of this siluk are based on the siluk of Nichsei Malug in Kesubos 83, the only difference is that we are not talking about siluk from a title to property but rather from a monetary shiabud. All the other rules apply (see very lengthy Ktzos HaChoshen ibid.).

As such, can this siluk take effect before the wedding?

All opinions hold absolutely not. This is why the PNA adds the words about repeating the waiver afterward.

So, does it 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.

Can it take effect at the time of the separation?

Believe it or not, this may actually work with the declaration he makes now (if he is “deemed” to repeat it then) because, for this shiabud, there is no need for a kinyan. However, the PNA would need to expressly say that he is deemed to repeat the declaration at that time (when the siluk takes effect) and this is not what it says.

So let’s say the PTB makes this change in the agreement, have we solved our problems?

No, or more precisely, it depends who you ask. If you ask the Shach or the Ktzos, perhaps it does. If you ask the Rema, Tumim or Mohari”t )Rav Yosef Matrani 1568-1639), it does not.

The issue at hand is that once we say that this siluk can only take effect at the time of separation, what happens if he retracts his siluk in the interim? Can he?

Moharit says he certainly can. The Ktzos disagrees. The Ktzos also intimates that this is in line with the Rema in Ch”M 112:1 concerning a lien against a future acquisition. The Rema’s opening position is even if one expressly earmarks a future acquisition for a lien, the lien cannot take effect until the acquisition and in the meantime, he can retract it. He follows this ruling with a terse “yesh cholkim (others disagree)”. This usually means that the first opinion is primary. The Shach announces that the “yesh cholkim” is the primary Halacha against the implication of the Rema.  The Nesivos disputes this Shach based on the Tumim and even the Ktzos.

So the retraction issue in this case seems to be a strong dispute. Furthermore, it is not clear if those who maintain that the husband cannot retract are talking only in a case that the siluk was done with a kinyan.

The basic rule in Halacha is that the burden of proof is upon side that is changing the status quo (motzi m’chezkaso). Hence, if the siluk has not yet taken effect and the husband retracts it. We need to follow the opinions that there is no siluk. (Of course, the BDA will want to follow the other opinion and make the husband agree with their “kim li” clause.)

Grand Summary

Let’s quickly summarize all of our angles:

Dividend Earnings (Peiros)

Declaration or kinyan before the wedding – Waiver doesn’t take effect at all because he has no rights to waive.

Declaration at time of wedding – Waiver doesn’t take effect at all because he doesn’t want it to take effect yet.

Declaration at time of separation – Waiver does not take effect at all because this requires a new kinyan. Husband could make a kinyan at that time if he agrees to it.

Declaration before the wedding that at the time of separation the current kinyan is effective me’achshav – Either his interim use of the peiros negates the me’achshav and the waiver will not take effect at all or the me’achshav negates the interim usage and takes effect retroactively. This will make the husband liable for reimbursement. Also, in the latter viewpoint, many poskim will hold that he can retract the siluk order as long as it hasn’t taken effect.

Job Earnings (Maaseh Yedayim) by way of Mechila

No advance declarations will take effect because the job earnings have not yet come into existence (Ch"M 209:4).
Husband could waive them later once they are earned – if he agrees to it – but he can retract the waiver anytime and continue to collect. 

Job Earnings (Maaseh Yedayim) by way of Siluk

Declaration before the wedding – Waiver doesn’t take effect at all because he has no rights to waive.

Declaration at time of wedding – Waiver doesn’t take effect at all because he doesn’t want it to take effect yet.

Declaration at time of separation (or declaration now for the time of separation) – Waiver may take effect. However, PNA needs to write this expressly. In addition, many poskim will hold that he can retract the siluk order as long as it hasn’t taken effect.

Declaration before the wedding that at the time of separation the current declaration is effective me’achshav – Same problems as Peiros.

Conclusion (to waiver issue)

One of the two commenters on my Part 1 post noted that “Furthermore, even if this mechila doesn’t work the PNA is still extremely helpful for the majority of cases where the wife’s income is not way above average.”

On the face of things, he is 100% correct if this is the majority of cases. But we have to remember a few things.

Firstly, this entire PNA is predicated on the chiddush of the Toras Gittin which is built around this waiver. So the waiver must be solid.

We must also note that we are dealing with a couple who are separated so the wife is living on her own. Today, most women have incomes – especially those who leave their husbands - and it doesn’t take much income to take the bite out of the PNA. I did a bit of googling and came up that a woman in the US earns on the average $700-800 per week and for those in professional or management positions it was a bit over $1000. So we are talking on the average $3000-4000 per month to offset his $4500.

But there can also be some very serious ramifications. Everything that I have written is working in line with the opinions that the PNA does not automatically engender a forced get. I am only challenging the waiver aspect. One can argue that my entire thesis on the frailty of the waiver is only a concern if the husband is knowledgeable enough to challenge the validity of the waiver or to retract it. Very few men from the circles that promote the PNA – mostly Modern Orthodox working class – who don’t read my blog will be that knowledgeable.

But suppose some learned recalcitrant husband – or one who gets a good toen - does indeed challenge or retract the waiver and demands his wife’s earnings.  Suppose the Bais Din does not take his challenge seriously and they enforce the PNA agreement even though the Halacha about his wife’s earnings may be on his side. In such a case we are now dealing with a bona fide gold standard get meuseh l’mehadrin that is invalid according to all opinions.

So it’s critical to take a good look at this waiver and see if it really works. I have my doubts. The hitchayvut of the mezonos – a controversy in itself – may be bolstered with a belt and suspenders. But the waiver to the earnings has neither a belt nor suspenders. Nothing to hold up its trousers.

In my humble opinion and based on the research I have done, I don’t think the Emperor’s waiver has any close at all!