Are we Losing the War on Sensor-ship?

 

When I was a lad, we did not use the term “Orthodox” to describe mitzvah observant Jews. We primarily had two other terms – the more colloquial “frum” Jews and the more formal “Shomer Shabbos” Jews. For centuries, being “Shomer Shabbos” was the defining point of being a “frum” Jew. Once one is “Shomer Shabbos”, it is taken for granted that he or she keeps kosher, wears tefillin and tzitzis (for him), and keeps mikvah (for her). But it all goes under the banner of being “Shomer Shabbos”.

Keeping Shabbos has always been challenging but those of us who were born into it take it in stride. On Shabbos we don’t cook or bake or write or turn on lights or watch TV or use the phone or tear toilet paper or fix things, etc., etc. That’s the way it is. We just follow the rules.

How do we know the rules?

For the simple Jew, there is good old tradition. Ma and Pa said we don’t do these things on Shabbos. So we don’t. We learn about it in cheder and we just know. We also listen to tapes from Shmuel Kunda, Z”L, (not on Shabbos) and read books by Rabbi Baruch Chait. All good.

The more learned ones among us might even learn Masechet Shabbos and Shulchan Aruch (with Mishna Berura).

Yet, the times, they are a-changing.

Up until about 200 years ago, it was enough to learn Masechet Shabbos and then learn Rambam and Shulchan Aruch. All we needed to know was how to define the 39 melachos. But we didn’t need to worry about lots of things. Aside from fire, there were no lights or radio and TV, no cars, trains or even bicycles, no washing machines, refrigerators, air conditioners, gas stoves, electric ovens, crockpots, salad spinners, computers, faxes, wrist watches, rain hats and umbrellas or even toilet paper (and definitely baby wipes). Oh, and no Shabbos clocks, either. Keeping Shabbos wasn’t so hard and whatever was good for the parents was good for the kids.

For generations. Up until just 200 years ago.

But then things started to change and change fast. The Shulchan Aruch did not answer all of our questions. We needed new updated Halachic digests on Hilchos Shabbos. And we still do.

I believe that the trend started circa 1800. HRHG Avraham Danzig, ZTL, was one of the first who recognized the need for a concise halachic digest on Orach Chaim and Yoreh Deah for der heimisher oilam – the pious but relatively unlearned man in the street. Thus, he gave us Chayei Adam for Orach Chaim and Chochmas Adam for Yoreh Deah. In Chayei Adam, he devotes 79 “klalim” to Hilchos Shabbos and is very thorough. Of course, at that point, the industrial age had not taken root and his sefer only covers the generations-old basics. Still, it paved the way for what was to follow.

The next digest took another 65 years and still only dealt with the age-old basics. This was the Kitzur Shulchan Aruch by HRHG Shlomo Ganzfried, ZTL and it was published in 1864. I am not sure why it was necessary after the Chayei Adam but I surmise that Rav Ganzfried thought we needed something even more concise. He devotes only 25 simanim to Hilchos Shabbos. But, just about then, technology and Halachic analysis began to accelerate.

In 1884 – just 20 years later – the Chafetz Chaim published the first volume of Mishna Berura. The third volume, the one on Hilchos Shabbos came out in 1891. We know that his style was different. It was in the form of analytical notes directly on the Shulchan Aruch. It was geared for the more studious baal-habayis. The Chafetz Chaim had two goals in mind. One was to sift through all of the contending opinions and to give the everyday Jew a clear psak on which to follow. But the other was to bring Orach Chaim into the 19^th (and 20^th) century.

The one who really did bring Orach Chaim into the 20^th century was the Chazon Ish whose first notes on Orach Chaim came out 20 years later in 1911 with new revisions popping out over the next forty years. Someone once told me that the Chazon Ish said later in life (I cannot verify this): “People think that I am a big machmir. Let me just say that there are just about 300 points of contention between myself and the Chofetz Chaim in Orach Chaim and, in most of the cases, I am the meikel!”

But the modern age wasn’t truly ignited until 1935 when HRHG Rav Shlomo Zalman Auerbach put out his sefer, Meorei Eish, which was a monumental work dedicated to how to deal with electricity on Shabbos and Yom Tov. This is when electricity (and telephone) was first becoming a household item for the average person. It was just that, in the early years, we controlled electricity. It did not control us.

Since 1935, we have been bombarded with technological innovations and we needed to rely on the “teshuvos” of the great poskim, those mentioned above and the Igros Moshe, Tzitz Eliezer and others. Yet, we didn’t have a comprehensive modern day Shabbos handbook until 1965 when HRHG Rav Yehoshua Neuwirt, ZTL put out the first edition of Shmiras Shabbos K’Hilchasa. To keep up with the fast-moving times, two more editions came out with the last one in 2010.

Rav Neuwirt, ZTL passed away in 2013, but the need for a dynamic comprehensive guide to Hilchos Shabbos is here to stay. This is due to the vision of one prophetic man:

George Orwell.

In 1949 George Orwell described a future world that he thought would come to existence 35 years later in 1984. And he gave us the slogan: Big Brother is watching you.  

He was talking about the era of censorship sensorship.

In his book, 1984, Orwell was envisioning a world of 24/7 sensorship. Telescreens, surveillance cameras, microphone recorders and other devices following us around everywhere we go and watching everything we do and reacting to every move we make.

Cameras, motion detectors and digital readers - all triggered by sensors.

Orwell may have been about thirty years ahead of his time, but the time has come. Everything we do is being censored sensored. They are everywhere. They turn on lights, they open doors, they answer phones, they flush our toilets. They know when we open our refrigerators and close our ovens. They measure our weight and body temperature. And they count how much water we use.

Wherever we are. Wherever we go. The sensors are watching us. With electric eyes. 24/7.  

24 hours a day - seven days a week. Yes, seven days a week.

Even on Shabbos.

Modern technology is supposed to make life easier for us, isn’t it? We have air conditioners and refrigerators and now use electric plattas instead of blechs and have Shabbos clocks that manage everything. Let the electricity do the work for you. We don’t even need a Shabbos-goy.

But the sensors are watching us.

So after Rav Neuwirt passed on, we need a new generation of poskim. Brave courageous people who can stand up to the sensors and other modern problems (like salad spinners). And so, Mori V’Rabi HRHG Rav Yitzchok Mordechai HaCohen Rubin, Shlita Rav of Kehillat Bnei Torah in Har Nof (my shul) together with his chavrusa HRHG Sholom Yosef Gelber, Shlita came out with the Hilchos Shabbos handbook for today’s generation – Orchos Shabbos.

The first volume came out in 5763 (2003) and the latest volume on candle lighting came out this past year. And it’s already out of date. So let’s look at some of today’s shailas:

Reverse osmosis filters – are they borer or not? (Rav Rubin holds it is borer.)

Can one use a salad spinner to dry lettuce on Shabbos? (This was the Rav’s Friday night shiur three weeks ago. Rav Rubin holds one can’t even rinse the lettuce in the first place – see HERE).

What about running water on Shabbos in places that use digital water meters (which is just about in any modern place in the world except Yerushalayim, Bnei Brak, Beitar and Kiryat Sefer)?

This is a real tough one. Rav Rubin, Shlita has said that if the water runs on a digital meter, one must turn on a tap before Shabbos and only use that tap all Shabbos. However, I have heard about making a distinction if one is at home or in a Jewish house where the homeowner is paying for the water so the meter is working for him versus being in a hotel or other public place where the user does not pay for the water so he has no personal stake in what the meter is doing.

So, does your house use a digital water meter? You probably don’t want to know.

And, Shabbos before last what did he discuss?

The sensors – motion detectors that turn on lights!

Rav Rubin holds that if one is merely walking on his way outside and passes a motion detector which lights up an area that he has no involvement with (i.e., a private yard on the other side of the fence) or opens a door he has no intention of entering, the action “does not relate” to him and he may go there even though he is aware that he will probably unwillingly trigger a motion detector. [The same concept basically applies to surveillance cameras.] But if the motion detector does something that he benefits from, such as it lights up the way for him, one may not go to such a place.

So what if one lives in a building (co-op) which has cameras that benefit him and motion detector doors or lights for the stairwells?

The Rav holds he has a very serious problem.

So Shabbos before last, he was discussing such a case where one lives in a building wherein if any individual uses the stairwell instead of the elevator, a sensor will light up the stairwell for that person. The poskim generally agree that there is no hetter to use the staircase.  

Well, a Shomer Shabbos can’t use an elevator on Shabbos so, what to do?

A Rav in Bnei Brak wanted to suggest that, if the tenant installs emergency lights in the stairwell so there is always some amount of light, enough to comfortably climb the stairs 24/7, then the individual is not really benefitting from the additional light triggered by the sensor. So, perhaps, this would be like the lights lighting up in other people’s yards that do not relate to him and we can be lenient.

The Rav analyzed the issue in his Friday night shiur and, although he did not reach a firm conclusion, it seems like if the question was put directly to him, he would not be able to permit it.

We did not have shailos like this when I was a boy. If we wanted to cross a street, we just went to the corner and waited for the traffic light to change from red to green. It changed all by itself. We did not need to worry if there is a hidden weight sensor or electric eye telling the light that there are people waiting to cross. The light just guessed. Now, we may never know which traffic light is a chillul Shabbos trap.

Oh, but for the good old days when they said, “If you don’t come to work on Saturday, don’t bother coming on Monday”. Keeping Shabbos was a lot easier then. Maybe you had to work in a factory but at least you could cross the street and climb the stairs to your flat and even open your ice box refrigerator without being mechallel Shabbos.

And we could stay at a regular hotel. No electric doors, electric keys, automatic faucets and toilets. Nothing. We just needed to remember to cut the toilet paper in advance. Now staying at a hotel on Shabbos is like staying in a minefield.

Every generation has their nisyonos but ours is certainly the hardest. Our venerable and sagacious bubbies and zeidis did not have the nisyonos we have.

And it’s all because of sensorship!

I don’t suppose George Orwell ever thought of keeping Shabbos, but he knew what was coming.

The sensors are watching us!

Prenups XI: The Final Trei Gadya – Part 2 of A Consumer’s Guide to Halachic Prenuptial Agreements

  

Author’s note – Please see Part 1 of this post HERE.

 

I don’t hide that, personally, I am not a proponent of Halachic prenuptial agreements. To date, I have dedicated no less than ten posts to the goal of explaining the Halachic and Hashkafic reasons for this. But I can’t deny that there is an active market for them. So much so that, to date, I have come across not less than eleven possible contenders. I listed them at the beginning of my previous post.

As I discussed in my previous posts, creating a valid and effective Halachic prenup is a daunting task. The general rule is the more valid the less effective, and vice versa. This paradox behooves us to find a winning formula. This is why we have such a wide selection to choose from. Many creative Halachic minds have weighed into the contest. Some have fallen by the wayside and others seem to be making progress. As I look them over for my “Consumer’s Report”, I sometimes marvel at their creativity as well as their futility.

I began my Consumer’s Report in the previous post. I covered two additional prenups after the BDA prenup which launched this series – Rav Moshe Feinstein, ZT”L and Dr. Rachel Levmore. In this post we pick up where we left off. I first want to briefly cover some of the older, lesser-known candidates and get them out of the way and then get to the more recent innovations.

The lesser known prenups are those that are analyzed in Dr. Susan Metzger Weiss’s undated essay that looks to have been released about the year 2000. Yep, that’s twenty years ago. In case you don’t know who Dr. Susan Weiss is, you can check out my September 2018 blog where I analyzed a blog she wrote in Times of Israel a month earlier. In that post I copied the biographical blurb which said:

Dr. Susan Weiss is the founder and director of the Center for Women's Justice (CWJ), an NGO leading the battle to advance the civil and religious liberties of Israeli women when compromised by state institutions.

Dr. Weiss titles her essay Sign at Your Own Risk. Hm-m-m-m. What does this say to you? You can see the essay HERE.

Dr. Weiss critiques the prenups that were available in those days – including an earlier RCA version – and basically complains that none of them are one-sided enough. She writes on page 9: 

This Article does not analyze which of these contracts better conform to the requirements of Jewish law. This has been done by others. Rather, the Article attempts to analyze the following questions:

Does the prenuptial agreement acknowledge the inequities and abuses resulting from the imbalance of power inherent in the Rules of Law, which characterize Jewish divorce; and do it attempt to realign, correct or at least, address that imbalance? Does it merely corroborate the current status quo? Or worse, does it exacerbate that imbalance and place women at a greater disadvantage?

In short, Halachic validity is not her priority. It looks like even effectiveness is not her priority. Her priority is leveling the playing field between husband and wife for better or for worse. HKBH does not think it’s a good idea for the playing field to be level but Dr. Weiss does. G-d proposes and she disposes.

Truthfully, her analysis does not interest me. Mine does. I am not interested in what the various prenups have in common but rather in what way are they different.

The sample prenups in her essay are printed in the appendix. Evidently, none of these ever earned widespread recognition but some of them were put into operation by the Rabbis who authored them (Rabbis Lookstein, Cohen, Dick, Bleich, etc.). Either the authors never tried to proliferate their versions, they did not have the means to do it themselves, or they weren’t effective enough (or valid enough) to become widespread. They certainly did not have the clout of the BDA (except the RCA version).

So let’s discuss them. As I said, I want to do the shorter ones first. Here we go:

 

RCA Liquidation Prenup (Appendix 6 – page 33)

This one seems to be a predecessor of the current BDA prenup. It works on the same principle of obligating the recalcitrant husband to pay a hefty daily payment to his wife for not delivering a get. The proposed amount is $250 per day with is even 40% more than the current amount 35 years later!

The catch is that instead of calling the money a support payment (mezonos) it is referred to as “liquidated damages”. This is meant to imply that it is very “damaging” for a person to be chained into a dead marriage and unable to move on and so, if one spouse is holding back the other, he or she is inflicting damage. The payments are merely damage payments – supposedly not a knas.

On the plus side, this would actually dispense with the waiver problem and the problems of the wife not being entitled to mezonos since the payment is not earmarked as mezonos. If it is truly a payment for damage, there is no problem of asmachta, either. But the problem is that, in Halacha, a damage is defined as a measurable amount of tangible monetary loss. In cases of personal injury, Chazal allowed for two types of intangible damages – pain and embarrassment – and in each case, they presented a formula on how to assess the monetary value. But for all other types of intangible “losses” such as frustration, ogmas nefesh, vicarious damage (grama) and loss of time or loss of potential revenue (bitul kis), there is no mandatory compensation. Any such compensation, even if ordered by a Beis Din, would be considered a knas. Incidentally, this explains why it is all but impossible for somebody to sue in a Beis Din today for any of these intangible losses. A Beit Din today cannot order knassot.

Back to this initial RCA prenup, clearly they were serving up a knas in disguise which did not have the support of the Toras Gittin and certainly not the Chazon Ish who says that any mandatory payments designed to pressure a husband to give a get is pure knas even if it’s called mezonos.

Understandably, this did not draw the backing of any prominent gedolim. Most likely, even Rabbi Willig wasn’t happy with it, so he needed to redesign it.

 

Rabbi Haskel Lookstein (Appendix 7 – page 35)

This one may be the most Halachically sound because it is so short and sweet and toothless.

All it says is that in case the marriage goes south, and the spouses undergo a civil divorce, each side agrees to cooperate to carry out a Halachic divorce as well. The “penalty” for not doing so – recalcitrance – is to be liable for all the damages and expenses that the other side needs to get the job done. Though it may be implying some intangible damages, it does not set a predetermined price.

I wrote that this may be Halachically sound because if the damages are actual, we can say it is not a knas and nobody is really forcing the husband to give a get. However, I don’t think this agreement would accomplish much in a Beis Din and it seems to be addressing a spouse who anyway isn’t showing up in Beis Din. This brings us to the severe problem of a civil court enforcing this without the blessing of a Beis Din. Aside from the standard prohibition of litigating a case of damages in civil court, if the damages are not authentic, this is indeed a recipe for a get meuseh.

 

Rabbi Shear Yashuv Cohen (Appendix 5 – page 32)

Rabbi Shear Yashuv Cohen, ZL, was the Chief Rabbi and Av Beis Din in Haifa for many years until he passed away in 2016. He was an early Mercaz Harav talmid and a renowned Talmid Chacham. We can view him as a nationalistic Chareidi.

The text that she printed, which is her translation from the Hebrew, a relatively simple agreement with no binding arbitration agreement. There is also no fixed “daily payment” – not “mezonos” and not “damages” – so there is no knas in disguise. There is, however, an unspecified obligation for mezonos.

There are two parts to this agreement. The first part is an immediate and unconditional waiver of rights to the wife’s property which does not seem to relate to whether the marriage is going north or south. Also, it does not relate to the wife’s work income at all. As such, it does nothing to motivate the husband to give a get. I cannot see any purpose in it unless this agreement is designed primarily for a second marriage where these types of agreements are standard.

The second part is the relevant part. It says that the husband agrees to give a get to his wife within 30 days of when she requests it from him in writing. The “penalty” for not doing so is that he must pay her the ketubah immediately in full including all additions. In addition, he agrees to pay her mezonos as if she is a woman who is prevented from marrying (no fixed daily amount).

It looks like it is emulating the Toras Gittin approach except there is no waiver for the wife’s work income - only for her property revenues and this is forfeited from day one! One positive thing is that it does not inflate the value of mezonos and this is more in line with Toras Gittin.

The striking thing is that it makes absolutely no reference to Beis Din whatsoever. This agreement to divorce within 30 days or pay the ketubah and mezonos only makes sense if this demand comes after a Beis Din rules in favor of a get. It can’t work if they haven’t come before a Beis Din.

A woman cannot decide on her own that she is entitled to a get no matter how miserable she is. If she unilaterally leaves her husband, she is a moredes and is not entitled to a ketubah or mezonos! He can nobly state that he is still willing to pay the ketubah and mezonos but if he doesn’t really have to pay it and is accepting to pay it anyway he is accepting to pay an obligation which he does not have.

In other words, he is giving himself a knas.

Also, if it is not truly obligatory, his agreement to pay it anyway is an asmachta. And this document is so brief, it doesn’t begin to neutralize the asmachta issue.

If the couple were already at Beis Din and BD decreed a get without faulting the woman, then Beis Din is perfectly authorized to order payment of the ketubah and mezonos without any prenuptial agreement allowing them to.

All told, I see absolutely no value to this prenup.

It may be a poor translation from the original. But, if not, it is very hard for me to believe that a person as distinguished as Rav Shear Yashuv Cohen, ZL, can author and promote such a prenup.

 

Ariel Rosen-Zvi (Appendix 3 – page 27)

I never heard of Ariel Rosen-Zvi until I saw Mrs. Weiss’s essay. Apparently, he is a law professor at Tel Aviv University.

His prenup is almost identical to the BDA prenup. The only major difference is that it does not include any type of arbitration-in-BD agreement. We can say that since this was written and promoted in Eretz Yisrael where all divorce cases go to BD, the arbitration agreement is superfluous.

After that, it is almost word for word like the BDA. It calls for a more modest fixed amount for mezonos and it does not kick in until after the couple is separated for at least 12 months. Even though it states that the payments are made “without the need to take into consideration the extent of the wife’s income from wages, earnings, properties or any other source”, there is no official declaration of waiver from the husband. With or without a declaration, all of the issues that I previously mentioned apply.

The other issues about not being eligible for mezonos and all of the other issues that were raised in the previous post are all just as applicable with this prenup.

 

Rabbi Judah Dick (Appendix 4 – page 29)

Rabbi Judah Dick, ZL, was a lawyer and Torah scholar and a ranking member of Agudath Israel of America until his passing in 2005.

Most of the prenups I covered until now are full or miniature imitations of the BDA prenup where the husband is obligating himself to some form of expanded maintenance from the time the marriage goes sour. As noted, they generally share the same package of Halachic issues. I assume that Rabbi Dick was aware of all these problems and wanted to try something a little more original. So, here’s where things start getting creative.

In this prenup there is no obligation for support nor any penalty for not giving a get. What there is, is an immediate obligation to the other spouse for the amount of $100,000 (this was drafted in the mid 1980s) in the form of a promissory note. In Halachic terms it is called a hitchayvut or a spontaneous obligation. This obligation takes effect immediately at the time of the marriage but is offset by a signed agreement of the other spouse not to demand the debt unless the marriage goes sour and there is a civil divorce or a decree from Beis Din for a Halachic divorce or a ruling from Beis Din that the marriage cannot be salvaged.

Similar to the Levmore prenup, this one circumvents many of the halachic issues listed in the previous post. It uses the old Chachmei Sefard trick of making an immediate unconditional obligation which is offset by a counter agreement through which to eliminate the problem of asmachta. Also, the payment is not being labeled mezonos so it is not contingent on the wife’s eligibility for mezonos. Lastly, since this only takes effect when the marriage is deemed to be hopeless, it is not so much a catalyst for divorce.

From the perspective of Halacha, this may actually be the best player in the game. But, as we have noted, what it gains in Halachic integrity it loses in practicality.

Not only are there four signatures by each spouse but the draft indicates that it is meant to be certified in a Beis Din. This is not something that is going to be done in some Rabbi’s office or at the chosson tish. It’s a very formal process and doesn’t really work into the hullabaloo of making a wedding.

For this reason and because such an obligation is a heavy load for a chosson to take upon himself at the outset of his marriage, regardless if the wife is held back from claiming the bonus for the time being, it is a very hard sell. Also, even though it may not be itself a catalyst for divorce, it is certainly a sword of Damocles that hangs over the marriage and casts a pallor from day one. Though it may be Halachically sound, it is not a recipe for a healthy marriage.

 

Rabbi J. Dovid Bleich Tenayim Prenup (Appendix 2 – page 25) 

Rabbi J. Dovid Bleich, Shlita is (or was) a senior Ra”M at RIETS. Apparently, his approach, at least initially, was to incorporate the terms of a prenup as part of the text of the customary Tenayim document. Like the BDA prenup, it relies on the financial pressure of a daily supra-mezonos to facilitate a divorce as of the time that the wife is not taking board from her husband – i.e., separation – for any reason. It continues until the time that the woman can Halachically remarry, which is a euphemism for obtaining a get.

Interestingly, this prenup makes no mention of a waiver of the wife’s income. Conversely, the amount of daily “support” that was mentioned in the version printed by Mrs. Weiss was a whopping $200 per day - $6000/ month!

Mrs. Weiss actually praises this approach for two areas where it goes beyond the original RCA (now BDA) prenup: (A) This “mezonos” obligation is not based on the wife’s eligibility for mezonos and, therefore, there is no indication of fault of the wife and (B) Whereas the RCA prenup allows payments until the couple shows up at Beis Din, the Bleich Tenayim prenup allows it all the way up to the get. She then criticizes that it does not go far enough to allow a woman to unilaterally free herself from her husband.

In truth, the two “improvements” that Mrs. Weiss praises actually are strong Halachic liabilities. For Improvement A, if the wife is at fault and not entitled to mezonos, we are back at a self-imposed knas. Rabbi Bleich seems to subscribe to the faulty “Trei Gadya” concept that a person can obligate himself to any amount in the ketubah and label it “mezonos”. I challenged this idea in a previous post. He certainly cannot claim to have the blessing of the Toras Gittin on this approach and, as such, what is he relying on?

For Improvement B, he essentially shoots himself in the foot. The BDA prenup – and the patron Toras Gittin – can allow for this payment to continue “for as long as they are married” since it is based on the concept that the woman is eligible for mezonos and is, consequently, a marital obligation. Rabbi Bleich dispenses with eligibility for mezonos and can’t call it a marital obligation. Thus, he has no choice but to link it to withholding the get. So, not only is he not covered by the Toras Gittin, but he is in direct conflict with the Chazon Ish.

What is more important is that these two “improvements” are benefits to the wife but, just the same, create more risk for the groom. It allows for the wife to be a full-fledged moredes and worse and demand an unconditional divorce plus a fine for any kind of delay. Whatever time the husband spends fighting for Shalom Bayis or his financial or parental rights or any other legitimate delay comes out of his pocket. Likewise, there is no allowance for any incidental delays such as if a get is agreed upon but Beis Din cannot arrange it for another two months or is closed due to Covid restrictions or any other “act of G-d”. Even if the wife decides not to show up that day and reschedules for a few weeks later or the husband falls sick, according to the prenup, he still needs to pay the fine.

Who in their right mind would want to sign such an open-ended obligation and why should they?

So the core of this prenup is just like the BDA prenup and, thus, has almost all of the detriments, except one: there is no problem with the waiver of the wife’s income because there is no waiver. The waiver per se may not be very significant since most women are not such big earners, but it is the basis of the formula of the Toras Gittin so, leaving it out looks like a deviation from the “source”. This also does not mention an absurd “kim li” clause.

Furthermore, in terms of the non-Halachic issue #9 - that these prenups are a catalyst for divorce, this one is at the top of the pile (which may be why Mrs. Weiss is fond of it to some extent). As for issue #7 – coercing the chosson to sign it – since this is not a separate agreement but rather tucked into the text of the Tenayim, it is very likely that the chosson won’t really go over it and really understand what he is signing despite the declaration above his signature. It certainly does not contain a legalese disclaimer that the parties had the opportunity to seek the advice of a Rabbi and legal expert before signing it.                                                                                                                                Sof davar, I see this prenup as even worse than the BDA version.

This concludes the critique of prenup variations that were discussed in Mrs. Weiss’s essay. But I would like to discuss one more before I close this post.

 

Rabbi Shalom Chaim Spira (Per Rabbi Bleich)

Rabbi Shalom Spira is a pulpit Rabbi in Montreal and a research assistant at McGill University Jewish General Hospital. He also prides himself as a loyal disciple of Rabbi J. David Bleich, Shlita. He has a very formal and acute academic mind and writes profusely on medical and Halachic topics. I greatly admire his yiras shamayim and his scholarship.

In 2012 (5772) Rabbi Spira wrote an essay on prenuptial agreements “Written under the general and detailed guidance of Mori ve-Rabbi R. J. David Bleich”. This essay underwent several revisions and the one I have on file is the eight edition from Av 5775 (2015). This edition of the essay is 109 pages long!

The essay is exceedingly critical not only of the BDA prenup but also of the New York and Canada “Get laws”. The New York and the Canada Get Law are secular legal instruments framed and promoted by Jewish get advocates (“askanim”) to empower the secular courts to indirectly pressure a husband to give his wife a get. The respective laws basically say that if a couple is legally (i.e., civilly) divorced but one souse is resorting to external means of preventing the other spouse from remarrying, this can be “taken into account” when the court determines property rights.

In other words, if the couple underwent a civil divorce and the husband has not given a get to the wife, the court can financially penalize the husband for this. The framers and some Rabbanim who supported these laws saw this as Halachically sound since it can be labeled as a penalty not for withholding a get but for not “removing the barriers for remarriage”. Also, it is not a certain penalty but something left to the discretion of the court (albeit not to Beis Din).

Back to Rabbi Spira’s essay, his main concern about the BDA prenup was that the monetary obligation should be invalidated as an asmachta which makes the payment an involuntary knas and consequently brings us to the issue of get meuseh. As for the New York and Canada Get Laws, he, and many others, maintain that it is out-and-out get meuseh l’mehadrin. So much so that he and Rabbi Bleich and perhaps many others maintain that any woman who initiated a divorce and obtained a get in New York State or in Canada (at least in Ontario), has obtained an invalid get meuseh!

Note that even though I did not see a mention of this in his essay, it must be that Rabbi Bleich backtracked from his initial approach of a BDA-like amendment to the standard Tenayim since the asmachta problem is just as relevant in that approach as well.

Despite his criticism, Rabbi Spira presents himself as an advocate for prenuptial agreements and for eradicating the scourge of chained women in Klal Yisroel. He is very dedicated to finding the proper Halachically sound iron clad solution. As such, he proposes a 3-step solution.

Step 1 is for the couple to sign a mutual release from the obligations of the BDA PNA in the event that the couple may have actually already signed one. Needless to say that if they haven’t already signed the BDA PNA, this step is unnecessary.

Step 2 is to sign a document through which they are “shielding” themselves from being subjected to the NY or Canadian Get Laws. I will not dwell on this part and, obviously, it is only necessary for those who “plan” on getting divorced in New York State or in Canada. Of course, nobody who gets married can know for certain where they will wind up down the road so perhaps it is advisable for everybody.

Step 3 is the “kosher” monetary pressure which will inspire [almost] any husband to give his wife a get. His approach is similar to the Levmore approach in that the groom is obligating himself to some exorbitant payment to his wife for every day of their marriage. He justifies this payment by extolling the Trei Gadya concept of our matriarch Rivka. He says all young Jewish women are righteous and virtuous and deserve nothing less than our matriarch received. To this end, he coins a new phrase that, thus far, I have not found in any Halachic literature: Tosefet mezonos.

We have a concept of Tosefet Ketubah which is an additional and usually extravagant one-time payout to the wife at the time of termination of the marriage that is added to the basic measly sum of 200 zuz. We do not have any exorbitant daily allowance (which I guess can be called “mezonos”) in our Ketubos. But we learn from Yitzchak Avinu that we can indeed do such a thing as part of the ketubah. Rabbi Spira wants to implement it for our ketubos and to call it “Tosefet mezonos”.

To make this sound practical, he conjures up a spiritual perk in the form of an “all-ladies’ Yarchei Kallah voyage”. The husband, in his zeal to spiritually (and materially) enrich his wife, is granting her a daily allowance of $1000 to use toward this lofty endeavor. This is totally unconditional and is a “tnai ketubah” which is in effect from the day of the marriage for “so long and only so long as the lady continues to live in domestic harmony with me. On any day that passes on which the lady does not claim – in whole or in part – the tosefet mezonot herein specified, the lady will forgive me for the balance of what she has not claimed on that day that has already passed.”

The understanding is that as long as she does not actually go on this “voyage”, she will be satisfied with whatever mezonos she gets from her husband on any given day and forfeit the rest. Yet, the document does nothing to prevent her from claiming this money and flying out on any given day at her whim. Actually, in his essay description, Rabbi Spira says the document entitles her to actually collect $1000 every day if the husband has it. If he has less, she should just take what he has and forgo the rest, but she doesn’t really have to. The husband will simply write her an IOU (promissory note) for the balance.

Rabbi Spira, who to the best of my knowledge is not yet married, assumes that every Jewish groom should and does feel so secure in the integrity of the newly met woman that he is marrying that there is no reason not to totally trust her to faithfully live up to the agreement and not abuse her unrestricted privilege. Also, that every Jewish male should actually want his wife to handle the household finances whether or not this is what makes them comfortable (each couple has their method) or if she is even capable of it. Certainly, he notes, if, indeed, he suddenly discovers that she is a con-artist, “he can bail out of the marriage without excessive financial loss”.

How reassuring.

All this to prevent our precious bnos Yisrael from any type of siruvei gittin.

Incidentally, there is no mention of a waiver of her earnings but, at $30,000 per month, I suppose it’s a moot point.

So what we have here is actually an impaired version of Dr. Rachel Levmore’s Agreement of Mutual Respect. Both are based on a Takanas Chachmei Sefard system that there is an immediate unconditional obligation to the wife which, supposedly, ends when the marriage ends, i.e., when the wife gets a get. In the case of the Levmore prenup, this obligation is offset by a reciprocal waiver from the wife. In the Spira prenup, it is not really offset at all and, at most, on sheer trust.

The Levmore prenup does not call this obligation “mezonos” at all but it is rather a personal hitchayvut. It is not incorporated as part of the ketubah. In the Spira prenup, this is called “mezonos” or, more accurately, “tosefet mezonos” and is part of the ketubah. As such, it has all the rules of a ketubah and mezonos whereas, if the wife initiates the divorce (which covers most cases of recalcitrance) or is otherwise deemed a moredes, she is not entitled to it at all. This is the meaning of the clause “so long and only so long as the lady continues to live in domestic harmony with me” – i.e., she is not a moredes. So, Rabbi Spira’s prenup will not work where the wife is a moredes and if she leaves the husband on her own. And if it’s the husband who wants out, very rarely is he recalcitrant at all!

One interesting issue that it seems that Rabbi Spira overlooked is what happens if they do not get divorced but the husband dies?

The standard tnai ketubah is that a faithful wife is entitled to mezonos from the husband’s estate until the day she dies as long as she does not remarry. We can assume that this would apply to our matriarch Rivka if Yitzchak would have died first (he didn’t). The clause of “living in domestic harmony” is only meant to exclude a moredes, not that the husband is no longer living. As such, she will certainly quickly consume the entire estate and leave nothing for the heirs!

This issue may not be very significant. It can probably be easily fixed with a clause that terminates the obligation upon the death of the husband.

Sof davar, what Rabbi Spira is suggesting is a very tedious, cumbersome and risk-laden agreement which, when it counts, is not effective in many cases. Hard to believe that any normal chosson would be willing to sign it. Perhaps it has the approbation of Rabbi J. David Bleich, but there do not seem to be any outside endorsements. It may remedy the BDA prenup issue of asmachta but I cannot see any improvements over the Levmore prenup. Actually, since the Levmore prenup makes the payment a straight hitchayvut as opposed to a marital obligation, it’s a lot better.

In my opinion Rabbis Spira and Bleich would be better served by simply endorsing the Levmore PNA. But he doesn’t even mention it, as if it doesn’t exist. Or, so it seems at first glance, but this isn’t really so. Toward the end of his essay, he does describe another similar prenup which seems to be the Levmore prenup. Only he doesn’t credit it to Dr. Rachel Levmore, he credits it to Rabbi David Joseph Mescheloff. But it looks just the same and I am assuming that perhaps Rabbi Mescheloff is a co-author of the Levmore PNA.

Rabbi Spira summarily dismisses the Levmore-Mescheloff PNA precisely because it is built on the Chachmei Sefard concept that I described in the previous post. Rabbi Spira believes that there is some kind of a tartei d’sasrei (catch-22) with implementing the Chachmei Sefard technique. He maintains that the hitchayvut of the Levmore PNA is contingent on the husband being able to deliver a kosher get. Thus, he argues, since the husband cannot give a get before the married and after the marriage the financial obligation coerces him to give a get which isn’t a kosher get, therefore the obligation cannot take effect. I don’t want to get too technical, but I am very skeptical about his catch-22.

Overall, I don’t think this PNA is very practical or useful. To the contrary, just as I previously criticized Rabbi Bleich’s Tenayim prenup as the strongest catalyst for divorce, I feel the same way about this one. Thus, it stands to do more harm than good. The only positive thing is the part about shielding the couple from the New York and Canadian Get Laws. This may be very worth-while.

Before I close this post, it is worth mentioning that Rabbi Spira, in his final section, brings one other type of prenuptial agreement devised by HRHG Yosef Eliyahu Henkin, ZTL. Rabbi Henkin suggests protecting women from agunah-ness by implementing:

a tripartite prenuptial agreement consisting of (a) an ordinance of a Beth Din representing the entire Jewish People to revoke kiddushin in case of an uncooperative husband; (b) the delivery of a get from the husband to the wife at the time of the chuppah, on condition that the get should take effect after the last act of cohabitation between husband and wife, before the husband becomes uncooperative; and (c) kiddushin on stipulation that if neither the Beth Din ordinance nor the get are successful, and still the husband should remain uncooperative in the future, then the initial kiddushin should be nullified.

In other words, at the time of one’s marriage, he should get divorced as well. Only the divorce will take place whenever Beis Din decides it should. In the meanwhile, they should act as if they are married.

Far be it for me to even contemplate holding a candle to the halachic prowess of HRHG YE Henkin, ZTL so this needs to be evaluated more on Hashkafic grounds than Halachic ones. Not only would such a system be used to mattir agunos but it would certainly be applied to retroactively clean adulterous affairs and mattir mamzerim. This would lead to a total breakdown of the kedusha of marriage and destroy more families than it will save. Needless to say, this approach did not gain a foothold in the chareidi world. As a post script, Rabbi Spira notes that it seems that Rav Henkin himself retracted his idea.

This basically concludes my Consumer’s Guide. I have critiqued ten out of eleven of the PNAs on my list and added Rav Henkin’s. There is only one more to discuss, and I intentionally saved it for last and what should be the final post in this series.

אשר עשה א-לקים את האדם ישר והמה בקשו חשבנות רבים.

Stay tuned…