Prenups VIII – Trei Gadya, Trei Gadya – Part 2: Yeridas HaDoros and the Four Sons of Get Meuseh

Author’s Note – This series has grown way bigger than I first planned it. This is a testament to the complexity of this topic. For this post, it will be very helpful if the reader is at the very least familiar with the opening post of this series. It can be accessed HERE.

Just when I think I only need one more post to complete a topic, something comes up to make it more complicated.

A bit more than a week ago, Reb Dovid Lichtenstein posted another feature about prenuptial agreements on his Headlines blog (podcast) site. I listened to the entire 2 ½ hours and I was taken aback by the one-sidedness and the Halachic distortions and misinformation that was promoted on the episode. Also, the more information that was divulged about the activities of the Yashar Coalition, the more disillusioned I became over them.

Reb Lichtenstein presented a not-completely-accurate picture of the proposal of the Toras Gittin and other parts of Even HaEzer 134. The worst of it was when he tried to explain the relevant Toras Gittin by importing a backdrop “svara” that Toras Gittin wrote in his next segment concerning a different case and he presented it as if it were written in this segment (he did this twice!). As a public service, I will attempt to straighten out these distortions.

For those who are not aware, Toras Gittin was written by HRHG Rav Yaakov Lorberbaum from Lissa (1760-1832) also known as the Nesivos Mishpat (on Choshen Mishpat) and the Chavos Daas (on Yoreh Deah). He is renowned as one of the most authoritative Poskim of his era. Toras Gittin is his work of chiddushim on Masechet Gittin and his Halachic notes on the section of Even HaEzer that deals with Hilchos Gittin. It was published approximately 1813. As a rule, he is clearly a “bar samcha” in psak. (This may be an exception to the rule.)

I initially brought up the proposal of the Toras Gittin in my very first post on the Prenups series. It has been adopted by the Beit Din of America as the key ingredient in their prenuptial ingredient. Very briefly the main idea is this:

The husband at some point can reaffirm the pre-existing support obligations that he has to his wife while simultaneously renouncing her obligations to him. In so doing, he will bring about an uncomfortable lopsided situation which will induce him to give his wife a get. This will not be construed as a recalcitrance “penalty” which could challenge the validity of the get.

As we will see (and have already seen in the earlier posts), the proposal of the Toras Gittin is so obscure and so novel that it is difficult to employ even in its written context. But, for certain, there are absolutely no grounds to employ the Toras Gittin beyond its written context, which is precisely what the BDA is doing.  

To understand this, we must examine the true context of Even HaEzer 134:4 where this Toras Gittin is situated. And to understand this, it may help to understand the concept of “Yeridas Hadoros” as illustrated by the Four Sons of the Haggadah.

The conventional interpretation of the narrative of the Four Sons in the Haggadah portrays them as four brothers of one household or one of four types of sons that any person may be blessed (or cursed) to have. But some meforshim (I don’t have names right now) present a much more profound interpretation that they are actually portraying the decline of subsequent generations (yeridas hadoros).

We start with the grand patriarch – the avi avos – who is the Tzaddik. He personally experienced the redemption from Egypt and the original Korban Pesach. He certainly performs the Passover service meticulously and with gusto. Afterall, he was there when it happened.

The first generation after the tzaddik is the Chacham. He is wise and devoted but not a complete tzaddik. Though he strives to emulate his father and inquires sincerely as to the rituals and he fulfills them, this fulfillment is lacking in full conviction because he did not experience the geulah himself. It’s just second-hand from his father.

The second generation, son of the Chacham, is the Rasha (wicked son). He observes his father and grandfather performing the Korban Pesach but he senses that his father, the Chacham, is acting more out of tradition than faith. As one of even less faith, he refuses even to buy into an antiquated tradition based on an event that happened two generations earlier.

The third generation is the “Tam”. The Rasha is aware of the yearly Korban but he doesn’t bother to transmit the tradition down to his son, the Tam, who consequently remains ignorant and unlearned. Still, the Tam observes his grandfather, the Chacham, performing the Korban Pesach, thus he is aware that there is a tradition that was not taught to him, so he inquires, “What is this?”.

The fourth generation is the son of the Tam. The Tam does not perform the Korban, nor does his father the Rasha. The Chacham is probably in an old age home by now. So the fourth generation son has no knowledge of any tradition of Korban Pesach at all. He is a Sh’eino Yodeah L’Sh’ol. Thereupon, the only remedy is for the community to indoctrinate him from scratch.

With this model, we can look closely at Even HaEzer 134:4.

The subject of this seif is “Get Meuseh” – a “forced” get. Due to the terminology, there is a common misconception about what a “forced get” means. Many of us think that it means that other people cannot physically coerce a man to give a get by brute force as the term “meuseh” implies. But anything less than that is okay. This is not exact.

Despite the stark terminology, the Halacha that brings us “get meuseh” is really that a man must want to give his wife a get. Even if he is not being physically coerced, if it is clear, or even suspected that he does not want to give the get, this is enough to make the get pasul as if he is being forced. This creates a grey area between the extremes of clear consent to give a get at one end (good) and clear coercion to give a get on the other (not good). Like all grey areas there is a lighter grey and a darker grey. Hence the “four sons” – the Shvuah, the Kinyan, the Knas, and the Mezonos.

So, like in the Haggadah, we will begin at the “grand patriarch”, the “avi-avos” of a get meuseh: brute force – holding a shotgun to his head, hanging him out the eighth story window by his ankles, electric cattle prods, the usual. Such a get is invalid by all accounts except in exceptional cases where coercion is warranted. This much is understood.

Aside from this, the Rishonim argue whether direct financial coercion is also considered coercion by which to invalidate a get. The accepted consensus is that indeed it is considered coercion. All this is clear when external parties other than the husband in question are those applying the coercive force and are the catalysts to this get. But what if the husband serves as his very own catalyst and imposes the coercion upon himself? Most of us would assume that this cannot be considered coercion. So we have a surprise coming.

We are now at Even HaEzer 134:4. Here we go:


The son of the first generation- the Shvuah

In EH 134:4 the Mechaber tells us a chiddush that is not mentioned in the Gemara. “If the husband took an oath to give a get, we must release his oath beforehand so that it should not be comparable to force”.

What is the context of this Halacha? What is going on here? Evidently, a man swore to give his wife a get. When? Where? Why? What happened?

We don’t have a clue. The Mechaber does not present any context and this is not even a case discussed in the gemara, so we won’t find any there. Hence, we must on our own assume the most logical context (Occam’s Razor at work).

Apparently, we are dealing with a person whose marriage is currently on the rocks. He cannot tolerate his wife. He wants to be rid of her and the sooner the better. Most likely, the wife is not so eager to get divorced, but her husband is adamant. He is determined to do it and he doesn’t want to give anybody a chance to talk him out of it. So he makes a shvuah that he will divorce her. That’ll do it! (This is the primary reason why anyone makes a shvuah in a typical situation.)

The couple arrive at Beit Din. The wife is begging for Shalom Bayit. Beit Din wants to try to talk sense into the husband: “Don’t be hasty, do a trial separation, go to couples counselling, etc.” The husband won’t hear of it. He wants to give a get and to give it now. BD still tries to calm him down. He tells BD, “I have made up my mind. In fact, I even made a shvuah!” (or this is the point when he makes it). Clearly, this shvuah is meant to take effect immediately.

The Av BD screams out, “A shvuah? Stop the show! Sorry, Charlie, no get. We can’t be sure that you really want to give her a get. Maybe you would reconsider but now that you made a shvuah, you feel obligated. This is not a voluntary get. If you really want to give her a get, we must find some grounds to release you from your oath.”

Do you get this? This fellow truly wants to give a get. He is aching to give a get. He is screaming for it. He can’t get it done fast enough! He made the shvuah all by himself. He is not being forced to give a get and nobody forced him to take the oath. This looks like the furthest thing from a “forced get”. What is happening?

We have now learned that, according to the Mechaber, a forced get doesn’t mean being actually forced. It means giving a get even though you don’t really want to do it. The Mechaber is afraid that if a man took an oath, he may have actually reconsidered, but now that he took an oath and, as long as he is not released and he has absolutely no alternative but to give the get or else face the ultra-severe consequences of transgressing a shvuah, he may not really want to give a get right now despite what he says to us. The Mechaber gives this case a status of “get meuseh” even though nobody is being forced. Quite the contrary!



The son of the second generation – the Kinyan

Nobody argues on the Mechaber at the beginning of this seif. (Note – The Mechaber does not tell us what he holds to be the Halacha if the get was given anyway without releasing the shvuah, but the Rema a bit further on says that bediavad it would be kosher. I suspect the Mechaber would agree.) And here steps in the Rema, not to argue with the Mechaber, but to expand on his chiddush. The Rema adds: “And so is the halacha if he accepted a kinyan to divorce”.

Short and sweet...and mind-boggling. The Rema does not give any additional details or context. So, Occam’s Razor tells us that he is talking in the exact same scenario as the Mechaber except instead of a shvuah, he merely accepted a kinyan – one step down.

So, the logical context is that, here as well, the marriage is currently on the rocks and he is quarreling with his wife. But maybe it is not so one-sided any more. Maybe the wife is also fed up with this marriage and wants out of it. Or maybe she wants it more than he does, but he is totally amenable to it. Ahah! After all these years, they finally found something they can agree on. So, to seal the deal, they take the exact same handkerchief that they held over the mechitzah when they got married and make a kinyan to get divorced. Likewise, this kinyan is meant to take effect immediately.

Arm in arm, the joyful couple goes traipsing off to Beit Din to implement their amicable divorce. But BD gives them a hard time - “Don’t be hasty, do a trial separation, go to couples counselling, etc.” The couple won’t hear of it. They tell BD that they have made up their mind. In fact, he even did a kinyan with her.

Once again, the Av BD screams out, “A kinyan? Stop the show! Sorry, Charlie, no get. We can’t be sure that you really want to give her a get. Maybe you would reconsider but now that you did a kinyan, you feel obligated. This is not a voluntary get. If you really want to give her a get, she must be mochel the kinyan.”

Before we go on, we must understand (A) what is this kinyan, what does it accomplish? and (B) how it is different than a shvuah?

The answer to (A) is very murky. Most other poskim (see Beit Shmuel) do not understand what this kinyan is and cannot substantiate this Rema. As we saw in our previous post, a kinyan can only be applied to a tangible item being transferred or a monetary obligation being owed. One cannot make a kinyan to perform a task or a service or to give a gift. This is called a kinyan devarim and is basically meaningless. Thus, many poskim want to disregard this Rema. Others will need to say that even though a kinyan devarim is not really binding, it does create some kind of a moral obligation that the abrogation of which is highly is frowned upon. Although there is no severe heavenly or earthly punishment, there is a sense of honor at stake that one should not be called a “ketanei amana” (untrustworthy fellow). Yet, nobody can force anyone to uphold a kinyan devarim.

As such, the answer to (B) is very clear. A shvuah is a solid commitment and the abrogation of one carries severe consequences upstairs. For lack of being released, the one who is under an oath has no other alternative than to uphold it and feels compelled. A kinyan, especially a kinyan devarim, is not so solid; it is only a matter of honor and reputation. For a kinyan devarim, one always has a weak alternative to abrogate it and let people think what they want.

So this generation, which is a step further away from a real “forced get”, is even more surprising. Once again, this fellow truly wants to give a get. He made the kinyan on his own. No one forced him to make the kinyan and no one is forcing him to give the get. More than that, he even has an alternative to abrogate the kinyan and walk away if he doesn’t really want to give the get. All that is at stake is his reputation. And, even after all this, the Rema holds that if he gives a get under this “yoke”, we suspect that he does not really want to give it and feels compelled by his kinyan. This is comparable to a get meuseh! We must see to it that the kinyan is forgiven.



The son of the third generation – the Knas (Fine)

At this stage, after these two surprising hard-lined laws, the Rema expands further to a lesser level and he softens up a bit. What if the husband takes upon himself a self-imposed knas (fine) for delaying the get? Says the Rema, “But if he accepts upon himself penalties if he won’t divorce, this is not being forced since he conditioned his get on an alternative action and he is capable of paying the fines and not giving the get”.

He seems to be saying that even though if one is forcibly coerced to give money if he does not divorce, this is considered being forced, once he accepted this penalty upon himself and he has the alternative to pay the money and not to give a get, he is not being coerced to give a get. This would be acceptable.

This is based on the opinion of the Teshuvas HaRashbatz (Tashbatz), an early 15^th century Rishon.

If the Rema would have stopped here, we would have a firm basis for a kosher prenuptial agreement that we could all be happy with. However, the Rema could not abstain from acknowledging dissenting opinions. He notes that the Teshuvos HaRashba argues and gives even this case a status of get meuseh! The Rema concludes: “One should be respectful of the stringent opinion and not make such an arrangement l’chatchila, and if it was made, to void the knas. However, if a get was delivered under these conditions (or even that of the shvuah), it is kosher as long as he was not coerced into making this obligation from the start”.

The two phrases that are in bold italics are very significant. And these are the two phrases that Reb Dovid Lichtenstein conveniently omitted when he quoted this Rema. Without elaborating, they place a heavy damper on the idea of employing the leniency of the Tashbatz with the imprimatur of the Rema in a prenuptial agreement such as that of the BDA.

Okay. So the third generation is another step removed from a real forced get and it ends in a stalemate instead of a universal p’sul. But again we must ask, what is the context of this Halacha?

Things are starting to get even hazier. Our initial case was a voluntary shvuah made when the husband was already prepared to give a get. We then moved to a case where the only difference is that instead of a shvuah, he made a kinyan. Again, the husband is fully prepared to deliver a get. In each of these cases, the shvuah or kinyan were to take effect immediately. Now we should be moving to another comparable scenario where instead of a shvuah or kinyan, he took upon himself a potential fine. All the other details should be more or less the same.

In other words, this generation is also dealing with a case where the husband is perfectly willing to give his wife a get but for some reason the process is delayed. Perhaps he is preoccupied with business matters or is in transit or it will take some time to get a date with the Beit Din. Apparently, in this case the wife also wants a get. If not, why should he even think of making a knas on himself? Maybe they are afraid he just won’t get around to it. So, to reassure the wife or her family of the sincerity of his intentions right now, he declares a self-imposed penalty if he drags his feet. All indications are that we are not discussing a case where he is backing out. This would not be comparable to the earlier cases.

Truth be told, the Tshuvos HaRashba is talking about where the husband is backing out. It seems that the Tashbatz is talking where he isn’t. As such, the Mishkanos Yaakov (Pischei Teshuva 10) says that these two Rishonim are not really arguing and if the husband is backing out, even the Tashbatz would call this a get meuseh! (Though, if this is so, the Rema’s “compromise” to do l’chatchila like the Rashba and b’diavad like the Tashbatz does not make much sense. We must say that the Mishkanos Yaakov does not agree to the Rema and the Rema must hold that these Rishonim argue in at least one of the scenarios.)

I just want to add one more thought. It is not clear from the Rema if his knas scenario is meant to include any type of knas arrangement, regardless if it is fixed or term, or if it only applies to a one-time fixed amount knas – such as “If there is no get by the first of the year, I will give a flat $50,000” – but it is not meant to apply to a type of perpetual long term knas such as, “If there is no get by the first of the year, I will give a knas of $5,000 for every ensuing month”. This could go either way. My personal feeling is, being that a default knas in Torah literature – kefel, kofer, ohnes u’mefateh – is generally a one-time payment, this is what the poskim mean when they talk about it in Shulchan Aruch as well. A perpetual knas may have a different status (and go under a different name) such that even the Tashbatz may concede that this will cause a get meuseh.



The son of the fourth generation – the Mezonos

The first three generations are all that we know from the Shulchan Aruch and Rema. They are now finished discussing the toldos of get meuseh. Shvuah is a no-no. Kinyan is a no-no. Knas is subject to debate but cannot be implemented l’chatchila. And all these are where the husband is his own catalyst to the get! Is there anything else?

Not for another 250 years (Rema passed away in 1572). But eventually, in 1813, Rav Yaakov M’Lissa published Toras Gittin.

The Toras Gittin writes a lengthy discussion about the dispute over a self-imposed knas. To begin, he analyzes some knas scenarios where scholars have suggested that even the Rashba may agree that the knas will not invalidate the get. He rejects all of the suggestions. But at the conclusion of the segment, he writes the following:

It appears to me that in this manner the sides can make kinyannim by which to arbitrate divorces – wherein the husband accepts a kinyan sudar that he is forgiving (mochel) all of the benefits that a man has from his wife in terms of marital relations and earnings even if he does not divorce her and he will be left with his obligations toward the wife of support and whatever else. And consequently, he will divorce her since this is depriving him of anything good and he is still obligated to all of her benefits. And it would only be a get meuseh if the knas is contingent upon giving the get which is not the case here since the knas is not contingent on delivering the get at all.

This is the sum total of what he writes and, as in the “generations” before him, he does not present a precise context of where and when this Halacha can be applied. It is important to note the Toras Gittin does not write the irrelevant backdrop that Reb Lichtenstein illicitly imports from the next segment (which is not discussing a knas) and fuses it into his words in this segment.

So, a few centuries after Shulchan Aruch is signed and sealed, the Toras Gittin presents a fourth generation of potential get meuseh which is quite removed from the grand patriarch, to the extent that he rules it does not produce a get meuseh. This is what he describes as an ipso facto knas. He still calls it a knas, but he says that it is not contingent on giving a get but just happens to stay in effect until a get is given – ipso facto (ממילא)!

So Toras Gittin is making two very novel claims:

1.   One can irrevocably curtail his marital benefits by making a kinyan sudar.

2.   A financial penalty that is intended to induce a get but is not expressly termed as such is not considered a “knas to give a get”.

This is the foundation of the penalty clause in the BDA PNA.

Sadly, there are a number of serious issues with adopting this novel psak as a foundation for what is hoped to be a universally acceptable prenuptial agreement. Not the least of which is the novelty of the psak and to what extent it is (or is not) universally accepted.

There is no debating the great stature of Rav Yaakov M’Lissa who is recognized as a gaon in psak. Yet, for piskei din from the post Shulchan Aruch era (let’s say the past three centuries) there need to be some primary components to elevate a psak to a status of a “yesod” (axiom) of Halacha regardless of who the posek is. They are:

Nimukim – Line of reasoning. This means sources, precedents, and/or proofs (ראיות). New rulings are extensions or “updates” of earlier Halachic opinions that relate to this one. Typically, the Achronim reference the Rishonim that look to be saying the same thing so that they have room to claim that if this earlier authority was here today and was asked this question, he would have ruled this way as well. It’s a way of saying that I (the current posek) am not inventing anything new out of thin air. I am just updating a Halachic perspective that has existed for generations.

A Chaver- Colleague. This means someone of equal stature from the same era that independently makes the same (or very similar) ruling. It is not enough that later authorities apply the psak of this one after it was published. For lack of a chaver (especially where there are no nimukim), we have to assume that most other authorities do not agree with this chiddush and this posek has to be seen as a “daas yachid” and his ruling treated accordingly.

Context – We need to know the precise circumstances of the case that the ruling applies to. Without any context we are at a loss to understand to what situations the psak applies and to what it does not. At least, when the posek provides nimukim from earlier sources, we can compare the cases of those sources to fill in the blanks of this current case. Likewise, if there is a chaver who is more elaborative, perhaps we can get a clearer picture from the details of the chaver. But when there is none, we are forced to take this psak at its most rudimentary connotation and no further.

As great as the Toras Gittin is, in this case, the cupboard is totally bare. Firstly, he provides no sources or precedents or proofs whatsoever. In general, this is a rare phenomenon, but it is the case here. As for chiddush number 1, in all my research I could not find any precedent that one can irrevocably inhibit his marital conjugal rights with a kinyan. All through Shas and poskim, the only way a person can block these rights is by making a neder. There is a whole perek in Kesubos and related Halachos in Shulchan Aruch all about what happens if a man makes a neder to prohibit conjugal rights. A kinyan is never even suggested. It is hard to understand how a kinyan could even work for this. As for waiving the wife’s earnings, there are many problems with this based on R’ Yaakov M’Lissa’s very own rules that are clearly written in Choshen Mishpat 209 (28). I dealt with this at length in my earlier posts on this topic (HERE and HERE).

Secondly, as far as I know there is no chaver to his two chiddushim. Not only is there no chaver, but for chiddush number 2 he clearly has a very vocal dissenter. This would be Rabbi Avraham Yeshaya Karelitz also known as the Chazon Ish in his work on Even HaEzer 99 (6). HRHG R’ Moshe Sternbuch, Shlita refers to this in his teshuva, yet Reb Dovid Lichtenstein and the entire BDA are patently ignoring it.

Lastly, as for context, Toras Gittin does not provide any. All we know is that he is expanding on the Teshuvas HaRashba that is referenced in Even HaEzer 134:4. So we can only use that Teshuva as a backdrop and nothing more (not even the backdrop in his next segment which is about the Tashbatz’s position and not the Rashba’s).

As such, just as the Rashba is dealing with a man who voluntarily made a self-imposed knas to give a get when the marriage is currently on the rocks and at the time that he wanted it to immediately take effect, we have to assume that the Toras Gittin is likewise discussing one who is voluntarily doing this mysterious kinyan when the marriage is currently on the rocks and at the time that he wanted it to immediately take effect. We have no license to go a step further than this.

(Actually, it is quite difficult to even conjure a logical scenario for this halacha. If the husband is currently at odds with his wife and is willing to make this kind of deal, why not just give her the get here and now and be done with it? Perhaps Beit Din is trying to reconciliate them for the moment and is pushing them off.)

In addition, the very fact that our technique is to curtail the marital benefits  indicates that it is talking where, despite their differences, the couple are still living in a setting of “husband and wife” where these obligations apply. In addition, we must note that the Toras Gittin only mentions the husband being “left with” the same support obligation that he had until this point. He never mentioned increasing it.

Lastly, if the Mishkanos Yaakov has any say in this, he may insist that this can only hold true if the husband is not backing out of his willingness to give a get.

To summarize:

(A)        As great as the Toras Gittin is, to adopt his chiddush at all as a basis for a universal prenuptial agreement stands on very shaky ground since he is clearly a daas yachid and, for lack of nimukim, is very nebulous. Moreover, the Chazon Ish argues head-on on one of his two underlying principles.

(B)        Even if one were to accept his proposal, he only proposed it under these circumstances:

·         They are currently living in a man and wife setting

·         The mezonos is the same amount as he was paying until now

·         The waiver includes the husband’s conjugal rights

·         The waiver takes effect immediately when it is being made

·         The kinyan (agreement) is being done voluntarily with no coercion whatsoever.

·         Per the Mishkanos Yaakov – he is not backing out and is giving the get with no resistance.

Rabbi Willig and the Beis Din of America are “stretching” this chiddush to new lengths for which they cannot claim the seal of approval of the Toras Gittin. How so?

·        In the BDA prenuptial agreement (PNA), the agreement and kinyan are being made before the wedding and before there is any strife in the marriage. As opposed to the Toras Gittin, it is not taking effect when it is made. It is meant to take effect at some unknown time in the future and not to be in effect until then. (See earlier posts)

·       The BDA PNA makes no mention of conjugal rights (try doing a me’achshav on this one!). Note that the original 1992 Hebrew draft by HRHG Zalman Nechemia Goldberg does mention it and the English version leaves it out.

·       The BDA PNA calls for a new and inflated value for “mezonos”.

·       The BDA PNA is meant to take effect when they are no longer living together and the marital obligations are not currently in force.

·       The BDA agreement is meant to take effect even if the husband changes his mind (Mishkanos Yaakov)

·        As opposed to the Rema that the Toras Gittin is writing about, the BDA is instructing their Rabbis to insist that the Chosson should sign this agreement and possibly to refuse to officiate it he does not, hence the signing may not be clearly voluntary.

This is quite a list of variations.

I am aware that even some prominent Chareidi poskim have spoken up in favor of this current PNA. Alas, it is not certain that they have examined all the issues. Personally, because of the severity of get meuseh, I could not be comfortable with any PNA unless we can be certain that it would meet the approval of the Chazon Ish, Mishkanos Yaakov, and the Toras Gittin.

Regrettably, I am not convinced that any of these poskim would approve of this PNA and I don't think that anybody else should be, either.