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.