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

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

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

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

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

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

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

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

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

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

Here goes.

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

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

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

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

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

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

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

Let’s make it simple.

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

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

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

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

What is going to happen in Beis Din?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is an asmachta.

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

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

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

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

Why not?

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

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

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

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

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

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

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

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

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

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

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

The Rema notes that this system always works!

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

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

How can this be?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

אמר רבי יוסי, מימי לא אמרתי דבר וחזרתי לאחורי

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

What does Rabi Yosi mean “turned backward”?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I think he learned it from Rabi Yosi.

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

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

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

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

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

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

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

But, what constitutes “good faith”?

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

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

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

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

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

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

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

ארור מכה רעהו בסתר!

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

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

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

This is why I have my email distribution policy.

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

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

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

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

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

I will have no מכה רעהו בסתר.

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

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

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

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

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

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

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

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

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

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

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

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

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

And what about the Sapper sisters?

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

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

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

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

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

Just cover your ears eyes…

תכלה שנה וקללותיה - תחל שנה וברכותיה

Chag Sameach!

Kesiva V'Chasima Tova

Ah gut gebentched yahr

(Note - Embedded video may not appear in email version. Also, in some browsers the Hebrew text may be scrambled due to color formatting. If so, please see the actual blog.)

לשנה טובה תכתבו ותחתמו

תש"פ

בני - תהא שנת פריה ורביה

חיי - תהא שנת פדיון הגו"ן (הגוף ונפש)

מזוני - תהא שנת פרנסה ברווח

ופדויי ה' ישובון ובאו ציון ברנה ושמחת עולם על ראשם. ששון ושמחה ישיגון נסו יגון ואנחה

Yechezkel

Yuchsin and Genetic Testing Part 4: When "Truth" Conflicts with Halacha - The Grey Zone (or Don't Ask, Don't Tell)

Author’s note – This post serves a dual purpose. It is intended as the closing post of this series, but it is also a very belated introductory post to the entire topic. As I tried to cut to the chase and reach my conclusions about DNA mapping for Yuchsin, it became evident that it required a more thorough overview on the fundamental Halachos that were in effect until now. In short, one can’t discuss how things should [or should not] change with modern technology if we are not clear on how things work before this technology was available.

So I had to devote a lot of text to the basic Halachos of mamzerus before devoting a lot more text to covering the more modern issues. Of course, this resulted in an exceedingly long post. I considered cutting it into two parts but couldn’t find a place to make a clean break and, besides, I really need to close this topic and move on.

I apologize for the lengthiness. My sensors (or censors) tell me that only my most devoted readers read through my posts anyway, so I am going for broke. If you haven’t read the previous posts in this series, please see them HERE. Happy reading.





The odds are that you probably don’t know a bona fide halachically “certified” mamzer (all jokes aside). I certainly don’t.

(Disclaimer – I do have a relative in my extended family – working-class Orthodox – who is divorced from his first wife. The family gossip was that she was involved with another man and there was a son born that my relative suspected was not his. I was told that he confirmed this with a blood test. This story goes back about 25 years and the child in question would be about 30 by now. I tried to follow up to see if this person ever had his status ruled in a Beis Din and if he is married to a regular Jewish girl. I was not successful. The mother and child are no longer part of my family in any case and I do not know them.)

It goes without saying that I can’t imagine anything more devastating than for one to be labeled a true mamzer. It is a social death sentence. I don’t even think an abusive childhood compares to this. This is because one can always heal from abuse. No matter how bad it was, the door is open. But for a mamzer, there is no open door and no way to heal. Not now and not ever. For all generations.

He/she is a social leper. Chazal tell us that a leper is compared to a dead person (actually, Moshe Rabbenu said it in Parshat B’Haaloscha). And even a leper can be healed. But not a mamzer. It’s forever.

It’s one thing if one knows he is a mamzer from his early childhood. At least he is resigned. But how about if one discovers this status suddenly right when they are ready to get married? Or worse, after they are engaged (as in Case X, the chayelet) or, worse, after they are already married and perhaps have children?

What a disaster!

And it is quite understandable that this status can bring one to suicide (ch”v). If one is already [socially] dead, there is no reason to live.

And the saddest thing about all this, as we all know, is that the mamzer in question has done absolutely nothing to bring this calamity upon himself. He/she is paying the price for the transgression of his/her forebears.

So we understand that a concerned posek or Beit Din will perform extensive Halachic maneuvers and employ all kinds of Talmudic “mechanisms” (i.e., chazakos, rubos, disqualifications of status or neemanus) to declare one free of this status. It is truly a situation of pikuach nefesh.

Many of us are not aware of the basic Halachos of mamzerus. There are some surprising twists – some are good news and some are bad news. First, the good news:

We all know that if a lawful married woman has a baby from a man who is not her husband, the child is a mamzer. Well, not always. This is only if the outside man is Jewish. If he is a non-Jew, the child is absolutely kosher. Many of us don’t know this minor point. This is very helpful in a situation where the unfaithful woman lives in a region where most males in the area are not Jewish. In such a case, even if it is certain that the husband is not the father, we may be able to pre-suppose that the child was fathered by a non-Jew.

Another piece of good news is the sages established a rule that when a man and wife are living together, we can take for granted that any child is the husband’s because we assume that even if his wife misbehaves, the frequency of marital relations between him and his wife clearly outnumbers the frequency of illicit relations. This is called רוב בעילות אחר הבעל.

A third piece of good news is that in a case where we have no reason to start suspecting that one may be a mamzer and, “out of the blue”, a mother confesses to being adulterous and that a child is definitely as mamzer (she is the one who knows for sure), we do not give her any Halachic credibility.

Now, the bad news:

The Din of a Safek Mamzer:

When we do have a reason to suspect a mamzer – such as where the mother is separated from her husband, was known to be adulterous, or had previously undergone a questionable marriage or questionable divorce and subsequently took up with another man – the rules are different. And here is a very strange twist.

Even though we have a rule that a safek in a Torah law has to be ruled strictly, there is a special drasha in Kiddushin that says that this does not apply to a mamzer. The gemara says that only a definite mamzer is excluded from the “masses” but an uncertain mamzer is not excluded. The Torah allows such a person to marry a regular Jew!

Sounds great, right? But…stop the show! The same gemara immediately concludes that, “Nevertheless, the sages made a takana (ma’ala) to protect pedigree, and ruled that even an uncertain mamzer is forbidden to the masses”.

Whoa-a-a! The Torah would let so many of these people off the hook, but Chazal felt is was necessary to protect the integrity of our nation and put them out to pasture. It evolves that in the case of a safek mamzer, he is acceptable min ha’Torah and ostracized m’d’rabanan!

What makes this even stranger is that in cases where we may want to help the questionable person by calling it a “safek d’rabbanan” wherein we always rule leniently, we can’t do that in this case because the whole essence of the takana of the sages is to be machmir in a case of safek!!

So, at the end, by Torah law, the person is accepted, but Chazal rule that we need to reject him as an “enhancement” and we cannot even say “safek d’rabbana l’kula”. Bum deal!

The Din of Yakir:

A very helpful Halachic foundation is that we need valid proof that this child is indeed an illegitimate child to declare him a mamzer. Technically, it would require eidus which is a first-hand statement by two observant adult males to the circumstances that warrant mamzerus. In practical terms this is almost impossible to occur because how can two detached people be able to testify that this baby is the product of an adulterous tryst? Even if they actually eye witnessed the illicit tryst, perhaps the child was conceived at a different occasion and the “donor” was the husband or a non-Jew?

Moreover, I wrote earlier that a statement made by the mother of the child who may be absolutely certain of no other trysts is not admissible so long as there is no other supporting evidence or witnesses. All this is very helpful. BUT…

There is a special Halacha straight from the Torah which states that a husband is believed on his own without any supporting evidence to declare that one that we take to be his child is, in fact, not his child! This is the Halacha of Yakir that is understood from the pasuk in Devarim 21:17. The poskim elaborate that the husband is only believed to say that the child is not his. He is not believed to say it is the child of any other specific person. Thus, in a situation where we can pre-suppose that the real father may be a non-Jew, Yakir does not stand in the way. There is a great debate as to if a husband says a child is not his, and then another Jewish man says the child is his, does the second man have a din of Yakir to make this child a certain mamzer as opposed to a safek?

The Din of “Prutza b’yoter” or “Davar mechuar”:

If you recall earlier there is a very lenient Halacha that when a woman is properly married, we naturally assume all children are from the proper husband because he gets to her most. This goes so far that even if the husband has been away from home for up to twelve months, we still “presume” the baby is his and she must have had a delayed conception (Even HaEzer 4:14).

But, there are limitations.

In the case where the husband was away for more than nine months, we only make this liberal presumption if there is no open sign of promiscuity (davar mechuar) on account of the wife. If there is, we “suspect” mamzerus.

The next Halacha (EHE”Z 4:15) discusses the normal case of a married woman where the whole town is talking about her infidelity. We still say that her babies are kosher even if we see a “davar mechuar” unless she can be called “prutza b’yoter” (i.e., very promiscuous). In this case we also suspect mamzerus. Comes the Rema and clarifies that this is only if the mother is not available for comment. But if the mother is here and says that the child is kosher, she is believed.

This opens the door to countless obscurities. What does it mean to “suspect” mamzerus? Is the offspring allowed to marry or not?? What is the difference between a “davar mechuar” and a “perutza b’yoter”? Where does one end and the other begin? If the mother is believed to say the child is kosher even if we know she is a “tramp”, is she not also believed to admit that the rumors are true and the child is a mamzer? Note – This is not the same as a mother who “out of the blue” denounces her child, here there is a “raglayim l’davar” and we are already in the “suspect” mode. And neither of these two dinim in Shu”A seem to deal with a case of Yakir.

How does this all play out?

Well, back in the old days, before there was such a thing as blood tests or genetic testing, every case of mamzerus by way of adultery revolved around these three questions:

A.   Is the mother an eishes-ish?

B.   Are there sufficient grounds to say the husband is not the father?

C.   If there are such grounds, is it certain that the real father is Jewish?

As such, the poskim were able to happily resolve many of the cases by retroactively invalidating the woman’s marriage, or somebody’s Jewishness or by saying that the lawful husband is the real father “against all odds”. Thus, Rav Ovadia, ZT”L, was able to clear the girl from Detroit by employing A plus B. And Rabbi Goren, in the famed controversial Langer case, was able to get them off the hook by employing A plus C (though here it was not the real father’s Jewishness but the first husband’s) – he retroactively abrogated the first husband’s conversion, thus invalidating the first marriage.

The interesting thing is that when we can put factor A into the equation, it doesn’t matter who the real father is (unless you need it for a sfeik sfeika). The marital status of the mother is always a question of Halachic jurisprudence. A posek’s opinion is all that goes into the case, no lab technicians need apply.

But when the mother is certainly an eishes-ish, then the question doesn’t ride only on Halachic jurisprudence. It rides on the identity of the father. And here is where the dilemmas start.

Our rules of “eidus” are very strict. And the Torah tells us על פי שתים עדים יקום דבר. We need two “kosher” eye witnesses to establish anything as an absolute fact. But, do we need the facts to be so “absolute”?

It’s easy for poskim to make halachic equations on paper. And it works as long as we don’t have a prime candidate for an illicit father and as long as we don’t take a look at the kid. But what happens when Delilah admits to the affair and Shmendrik admits to the affair and the whole neighborhood knows about the affair and Shimshon believes them and the kid looks and acts just like Shmendrik and not a bit like Shimshon? (This was the obscurity question I posed earlier.)

Sure, technically a posek can disregard everything and say that nobody is Halachically reliable and the rule is that most [marital] relations are with the husband and declare that the child is מותר לבא בקהל. But we kind of “know” that this is not “the truth”.

Well, maybe we still don’t “know” for sure. But, let’s up the ante. What if we don’t have the whole regalia of two kosher eye witnesses, but we have irrefutable circumstantial evidence such as photographic evidence or reliable eye witness testimony from people who are, for technical reasons, not Halachically kosher – i.e., they happen to be related or female? And, of course, what about genetic (DNA) or other forensic evidence?  

What precedents do we have?

The Shas and poskim do not talk much about irrefutable circumstantial evidence. Before photography, fingerprints and forensics, there was not much available by way of example. There is a good deal of discussion regarding missing husbands that are presumed dead and here we have a concept of “siman muvhak” – a unique identifying characteristic. So we see that for agunah situations, forensic or genetic evidence counts for something. We also rely on non-kosher witnesses for eidus isha.

The difficulty is that we are dealing in a situation where the default status of the woman is one of eishes ish (thus, an agunah) and we are trying to free her from this status. We are trying to help her, and assuming the husband is truly dead, it is to nobody’s detriment. So, paying attention to photographs and recordings and blood tests and dental records does no harm. There is no reason to close our eyes and pretend these things don’t exist.

Mamzerus is a lot different. We already said it is a veritable social death sentence. All this circumstantial evidence is going to “kill” this person. How can we accept it?

But it’s there for the taking. How can we ignore it?

What do we know about accepting irrefutable circumstantial evidence for life and death cases?

To start with, let’s discuss monetary cases. On this the only precedent we have is the story in Baba Basra 93a:

If an ox is grazing and there is a dead ox nearby. Even though the live ox is prone to goring and the dead one was gored, or this ox is prone to biting and the dead ox was bitten, we do not conclude that this ox gored or bit the dead one. Likewise if a male camel is kicking wildly (in heat) and there is a dead camel nearby, we do not assume that the wild camel killed the dead one (Rabi Acha disagrees in the case of the camel).

Rashbam suggests that there were other oxen or camels around, but these were the most likely suspects. However, most other Rishonim adamantly reject this suggestion and maintain that this is the Halacha even if there were no other possible aggressors and, presumably, even if the dental records of the ox prone to biting match the bite of the dead one! Nothing less than two kosher witnesses can cause a monetary obligation no matter how strong the circumstantial evidence. So rules the Shulchan Aruch (Choshen Mishpat 408).

Hard to say what they would think if they got the whole event on the surveillance video.

Let’s move on to life and death. The gemara in Sanhedrin 37b and in Shavuos 34a compares this case of ox-icide and camel-icide to an almost identical case of homicide. It relates:

Rabi Shimon ben Shetach said – I swear that I once saw one person chasing another into a desolate place and I ran after him and saw him with a sword in his hand from which blood was dripping and a murdered man quivering. And I said to him, “Wicked one! Who killed this man? It could only be either me or you? But, what can I do, that your fate is not subject to my testimony alone as the Torah says, ‘Upon the word of two witnesses shall a dead man be executed.’ The One who knows all thoughts will exact justice from you.”

The gemara concludes that, sure enough, Heavenly justice was swift in coming. Nevertheless, for lack of Heavenly justice, the flesh and blood Beit din is powerless.

Again we have to wonder what the gemara would say about state-of-the-art video surveillance cameras in the run down shack. For lack of such clarification, we need to stick with the default that nothing less than two live kosher witnesses will send this guy to the chopping block.

Or, is this so?

The Rambam in the second perek of Hilchos Rotzeach tells us something interesting. In Rotzeach 2:2, he talks about proxy murderers who hire hit men or sic wild animals on a person or tie them to the train tracks but don’t kill them personally, and he says that they are full scale murderers who are not subject to judicial execution. But, in Halacha 2:5, he says that even though they cannot be executed, “Beit Din must beat them to within an inch of their lives, and to imprison them for many long years, and to give them all kinds of distress…”

He explicitly is talking about proxy murderers or delayed action murder which may still mean that there are two kosher witnesses who observed the indirect crimes. Yet, would Rambam say anything different about a real first-hand premeditated murderer where there are not kosher witnesses but his guilt is absolutely proven by a hundred unkosher witnesses (let’s say women), or video surveillance or in a case like that of Rabi Shimon ben Shetach?

It’s hard to know. But, worse comes to worse, if we ignore the circumstantial evidence, we are letting a criminal back onto the street but we are not compromising the halachic status of anyone else. (I suppose we need to keep an eye on his so he shouldn’t hurt anybody else but this is common sense and not Halacha.)

Mamzerus is a more serious dilemma, because it directly impacts the community. If the person is indeed a mamzer and we “let him go” and allow him/her to marry, we are facilitating a non-Halachic marriage and the procreation of more “hidden” mamzerim. Many will argue that the psak din of “muttar lavo l’kehal” essentially erases the mamzer status but, when the “truth” is apparent, is this really the case?

Note that there are many types of scenarios of an invalid divorce in which we rule that the woman can no longer marry a Kohen. This is called “reyach haGet” (the “smell” of a get). Even though the woman was not really divorced, Chazal still apply the prohibition for a Kohen to marry her as if she really is divorced because of the “enhancement (ma’ala)” that is put into the Kohen status which is akin to the “ma’ala” that is put into Yuchsin (for mamzerus) that was mentioned earlier. If this is so, do we not also say there is a “reyach” of mamzerus?

Let’s look at the cases that we have been discussing and ask a few more questions.

Is the psak of “muttar lavo l’kehal” final?

In the case of Rav Ovadia ZT”L about the girl from Detroit, Maran was able to mattir because we did not have enough evidence that the mother is an eishes ish. The first marriage must have been about 30 years earlier and the mesader kiddushin was in Olam HaEmess. They had no kesuba and no known kosher eidim to the wedding. So with this and a side argument that the first husband was still getting in trysts with the mother (so he may be the father), he paskened she is good to go.

What if she goes and gets married and then they find the kesuba in a trunk in the attic? What if some kosher eidim all of a sudden materialize? What if the husband who wouldn’t cooperate suddenly cooperates later on and emphatically denies any relations with the ex-wife at the time the girl was conceived (remember the din of Yakir)?

Does the hetter become retroactively nullified and all resulting offspring determined to be mamzerim, or do we say “a psak is a psak”? In other words, does the person in question need to live every day of their lives in fear of the true circumstances coming to life?

RavBobliel suggested that we can invalidate the din of Yakir by saying that since the question of paternity and child support rides on it, a husband won’t be believed to say the child is not his because he has a financial stake. He is a “nogeah b’davar” and loses credibility.

Well, this may hold true until the child is eighteen years old, but there will come a time when the financial stake is no longer in effect. So suppose a husband has been saying all the time that the child is not his and we used the “nogeah b’davar” approach to reject his claim in order to save the child from mamzerus. Now, he is no longer nogeah b’davar and he is not changing his story. What happens now?

All these questions are magnified in today’s world when so many issues conflict with ignoring probabilities and genetic evidence. I mentioned them in my second post in this series: yerusha, aveilos, pidyon haben, Kohen/levi status, yibum, not to mention the interesting din of kibud Av in Yoreh Deah 240:18. In all these situations, if we can verify the status, we really need to. So, what if these things show up at our door at a later time?

And, of course, what about medical emergencies where genetics plays a role, such as if the child, a “sibling”, or one of the potential fathers comes down with leukemia (R”L) and the only treatment is a bone marrow transplant which usually are only found with close relatives?

Incidentally, we all know that HKBH has a very keen “sense of humor” when it comes to revelations such as these.

One final dilemma.

Let us say, in the face of all this, the poskim are very firm that we don’t look at anything that is not Halachic eidus. And we will employ all of our sfeik-sfeikos, chazakos, and rubos and give a “paper psak” that the child in question is “muttar lavo l’kehal” even though all circumstantial evidence indicates otherwise. Technically, they are free to marry anyone they want. And now, they are in the parsha of shidduchim. I am talking about cases like those of X, Y, and Z in my previous posts.

Do they need to inform the people they are dating of this questionable status?

In the chareidi world, we want everything to be Kosher l’mehadrin. This means kosher l’chatchila. Not subject to any doubts in the kashrut. The tefillin, mezuzos, mikvaos, and eiruvin need to be kosher to the highest standards. People who live this lifestyle will ask and investigate and, they should be able to expect direct answers. This have the endorsement of so and so but that only has the endorsement of so and so who holds from particular leniencies.

For a kashrut agency to call a chicken “Kosher l’mehadrin” it means that this chicken did not need to be brought to a posek who said that “it’s kosher b’shaas hadchak” or due to “hefsed meruba”. This cannot be called Mehadrin. And those who live by Mehadrin standards are entitled to maintain it and they are willing to pay more for it. Is a spouse any less?

In the Case X of the chayelet, she was very fortunate that the problem arose after she was in a strong relationship and the man was not so concerned that she be kosher l’mehadrin. It seems that as soon as they got the green light from Rav Bobliel a la Rav Ovadia, they were good to go.

Good for them.

But, let’s say she did not have a suitor waiting in the wings, or her boyfriend would not want to continue the relationship with a girl who is most likely illegitimate yet has a “hetter”. Does she need to inform any new potential suitor that her kashrus is not l’chatchila? Or do we tell her, “Hush up. Don’t say anything to anyone. You have a hetter. Keep quiet.”

Mamzerim are created through deceptions and cover-ups. Do we sanction more deception and cover-ups in order to protect them? Is this the ratzon ha’borei?

This is a heart-wrenching question.

The conventional Halacha when it comes to shidduchim is as follows. Any piece of information that carries a legitimate excuse to break off a shidduch must be disclosed in advance of the shidduch. Also, any information that will cause most people to turn down a shidduch must be disclosed prior to the shidduch.

The modern day teshuvos that this is based on are referenced in the Dirshu edition of Chofetz Chaim in Tziurim note 11. The cases discussed there are if, for example, the girl’s (or boy’s) father isn’t Jewish. This is where there is no question that the child is a kosher Jew. Is the Halacha any different if the child’s father admits to paternity while the mother was married to somebody else and the child needed a psak from a major posek to mattir l’kehal?

Rav Tzuriel Bobliel seems to maintain that whenever a “problem” arises, 90% of the time it can be resolved favorably within the parameters of Halacha. He seems to imply that even for many of those that we “know” are illegitimate, we can find solutions. But we cannot ignore Arthur Bloch’s famous corollary: Every problem has a solution, and every solution makes new problems.

After all is said and done, even if we sanction the “don’t ask, don’t tell” approach, is the problem solved?

My Conclusion


We are nearing the end of a long, dark galus. Many Jewish thinkers have suggested that every “galus” (exile) ends with a “hisgalus” (a revelation). Chazal tell us that b’ikvesa d’meshicha – in the preliminary footsteps of the Moshiach – “truth” will disappear in droves. But the sign of the “geula” is a gilui – a revelation. When hidden truths will be revealed.

Right before we were redeemed from Egypt there was the Makkas bechoros. The Midrashim say that in many houses lots of children died because the wives were not faithful and this child was her husband’s first born and that child was another man’s firstborn. Sometimes the oldest did not die because the husband had his first born somewhere else. I recall seeing a midrash that many husbands killed their wives in fits of rage when the death toll indicated they were unfaithful (I could not locate this Midrash anywhere – it may be a false recollection).

In better times, when there are no real witnesses, HKBH takes over. He gave us the sotah waters to check out an accused adulteress. The mahn would tell us who the slave belonged to and reveal other secrets. The Amud HaEish was like an x-ray machine. The ark of the covenant told us which of Shaul’s descendants must die and the ark of Noach told us which animals did not crossbreed. The Torah “understood” that there won’t be human witnesses to sins done in private and it gave us some divine assistance.

With all the falsehood and deceit that characterizes our generation, HKBH is beginning to level the playing field. We haven’t gotten back the sotah waters, the mahn or urim v’tumim. But HKBH gave us photography, audio and video recording, fingerprints and DNA mapping. It must be here for a reason. לא בשמים היא !

We cannot ignore modern technology. I think we need to embrace it and work with it and not against it.

I have no answers for the unfortunate plight of a mamzer. But this is nothing new. We have never had a way to comfort them for all of our generations. But it is hard to say that finding tenuous Halachic hetterim truly solves their problem. In even the best cases of “don’t ask, don’t tell” they are being sentenced to live their whole lives with a dark ugly secret for them and their offspring. And, even after a hetter, it can all “hit the fan”. The “solution” won’t automatically solve the problem. Honesty is always the best policy.

Oh, what a tangled web we weave, when ourselves we do deceive.