Parshas [VaEirah and] Bo - Hail to the Chief

 

In parshas Bo we notice a subtle change in Pharoah’s behavior. When Moshe warns him about the upcoming plague of locusts, Pharaoh takes a step toward negotiation. “Go and serve your G-d, just tell me who is going?”

When Moshe responds that he intends to take the entire nation out to the desert, Pharaoh retracts. But he gives a counteroffer, “Go and only take the men.” The negotiations end there.

But it is wondrous. Pharaoh is willing to negotiate at all. This is a first!

Hold on a minute. This is a first? Really?

Didn’t Pharaoh offer the Beni Israel to do their offerings within the land by the makka of arov? Didn’t he also say he will let them go while the hail was falling?

Those two don’t count. Aside from the fact that his offer for local worship during the makka of arov was saying that he will not release a single person from under his surveillance, there is another issue with these two earlier offers. Both of these “offers” were presented under duress when the relevant plague was in progress. A person in distress will make many empty promises for immediate relief. As soon as the plague was over, all bets were off the table.

Arbeh was different. This is the first time that Pharoah offered anything close to Moshe’s terms at just the warning stage. The first time Pharaoh waivered when there was no plague currently ravaging his nation. Not only that, but this is just a day or two after he officially hardened his heart after the plague of hail subsided as written in the closing pasuk of last week’s Parsha. The plague of hail didn’t faze him and there hasn’t been another plague just yet, but still Pharaoh suddenly changes his tune.

Locusts? Come on, we get locusts every seventeen years! The other plagues were unusual but locusts are nothing new. Pharaoh is not the type to be worried about food shortages at Kroeger’s. And they didn’t even come yet. What gives?

Well, the Torah does inform us that Pharaoh’s servants were getting nervous. And they confronted him. “Do you not yet know that the land is lost?”

This is a strong clue, but it still leads to many questions.

Did the servants tell Pharaoh something he didn’t know? Why are they speaking up now?

Obviously, they reached the breaking point, but why is this the breaking point? Why not earlier? Until now, there were warnings for five out of seven plagues. Not once did the servants flinch. Why is this warning different?

And… how could any servants confront Pharaoh anyway? Did he ask them for advice? Despotic kings are usually not interested in anyone’s advice. Giving a king unsolicited advice was usually a one-way trip to the chopping block. How could these servants dare to give Pharaoh advice? And why did he listen to them?

The answer is that there was something very unique about the plague of hail that did not apply to any of the other plagues.

Barad was the only plague where the Egyptian citizens were given a choice whether to get smitten by it or not. Moshe gave them an out. “Go gather your livestock and your people into your houses.” If you do so, they won’t be harmed. If not, they’re gone.

By now, Moshe should have had a bit of credibility. Why on earth would anyone who valued their possessions not take heed of Moshe’s warning?

There are three easy answers:

 

Answer 1 –

The Egyptians sheltered their animals in barns and pens and their non-Jewish slaves in ramshackle shanty towns. They had no qualms to keep them quartered there for the duration of the plague. But that wasn’t Moshe’s deal. Moshe insisted they bring all their animals and migrant workers into their own homes. Many Egyptians could not comprehend what should be the difference. Why should it matter which place of shelter they chose?

So they would not listen to Moshe to bring this zoo into their own homes and relied on the existing animal or servants’ shelters. But this wasn’t the deal and it wasn’t going to work.

 

Answer 2 –

Whenever there is a cultural battle, each side takes stubborn pride in their position. The Egyptians collectively had a master race ideology. Pharaoh was their Fuhrer. He brought their nation to prosperity (on the shoulders of Yosef) and he was always right. The Egyptians believed in Truth, Justice, and the Egyptian way! They believed in Egyptian science and religious mythology. Now comes a Hebrew upstart and is telling them that all the “truth" and science that they always believed in is a bunch of baloney and a Hebrew G-d with a long beard and payos is running the show.

Revelations such as these are a bitter pill to swallow. Diehard communists, socialists, fascists, democrats, evolutionists, Islamists – the list goes on, will always believe their ideologies and even fight wars and die for them. Even when the “truth” is staring them in the face. So, they must discredit the facts, explain away the precedents and convince themselves that the warnings are empty threats that will not actually come about.

 

Answer 3 –

When Moshe warned Pharaoh about the upcoming plague of hail and advised the citizens to bring their livestock into their homes, what do suppose was Pharaoh’s response? Did he concur with Moshe’s suggestion and advise his nation to comply?

Most assuredly not. More likely he actually forbade his nation to comply.

When the Irgun launched their attack on the British HQ at the King David Hotel in Jerusalem in July 1946, they called in a warning to the hotel switchboard about one half hour earlier. There is an unconfirmed legend that the warning reached the ears of Chief Secretary Sir John Shaw, and his response was, “I am here to give orders to the Jews and not to take orders from them.” Subsequently, he forbade any of his staff to leave the hotel. He himself felt an urge to exit the hotel to get himself a snack.

This legend has not been verified and it is challenged by the fact that there is no indication that the warning to the hotel switchboard made it into the British command. Nevertheless, it fits the arrogant British caricature and is all too believable. Pharaoh was no less arrogant.

Thus, we have to believe that the “advice” of Moshe Rabbenu was the quintessential challenge to Pharaoh’s authority and credibility. Moshe was challenging the Egyptians – “Do you believe your god Pharaoh and trust that he is interested in your well-being? or do you trust the G-d of the Jews? It’s your choice.”

By no other plague did the Egyptians have such a choice. Therefore, by no other plague was Pharaoh’s authority put to the test. This wasn’t just a bit of hail. It was a Hail to the Chief. The only question was, who is the true Chief?

The Torah tells us clearly that "he among Pharaoh's servants who feared the word of G-d refuged his servants and his livestock in the houses." How many people did this?

Interestingly, this pasuk is versed in the singular as if there was only one person who took up Moshe on his offer. It also mentions "from among Pharaoh's servants". This implies that only those in Pharaoh's inner circle were aware of Moshe's magnanimous offer. The ordinary citizen was not let in on it. Even among Pharaoh's servants it was probably very few. As the pasuk later states (9:30), “And you and your servants, I know that they have not yet come to fear in the face of Hashem Elokim”. Not only Pharaoh, but even his servants.

But certainly, some did listen to Moshe. And to do so, they had to defy the orders of Pharaoh. Their properties were not harmed. (I wonder if for these believers, perhaps even their crops were miraculously spared from harm.) 

Everybody in Egypt saw this and it shook Pharaoh to the core. Until now, even though he was unable to prevent the plagues, he still had total obedience from his nation and his inner circle. His statement was that the plagues are just augmented events of nature (if not witchcraft). “Perhaps I can’t beat the plagues, but the plagues can’t beat me, either. I am the god Pharaoh and I am too strong for that.”

And his nation was with him. They hated the Jews as much as he did, and they all rallied to his side. Nobody broke ranks against Pharaoh, but nobody had the opportunity to do so, either.

Makkas barad changed all that. For the first and only time, Moshe told them that if you listen to me, you will be better off than if you listen to Pharaoh. And, for the first time, some people listened. And some people defied Pharaoh. And they came out ahead.

Pharaoh is not reliable. Pharaoh does not have it all figured out. Pharaoh is not invincible. Pharaoh is not a god.

So, immediately after the plague of hail, the servants looked at Pharaoh differently. He is not building up his empire. He is presiding over its destruction. When Moshe comes to warn him about the upcoming plague of locusts, his servants were no longer so docile and obedient. They had their own personal interests, and for once, they were bold enough to confront Pharaoh and let him know.

And Pharaoh was willing to negotiate. Just a little bit. But why?

It was not because he was horrified by the impending plague of locusts. He wasn’t worried about losing his wheat and his spelt. He’ll import from the Ukraine. But he was afraid of losing his royal guard. He heard what happened to Gaius Caligula and he didn’t want to be there when it happened to him.

In today’s world we have an acronym to refer to those who sit in the drivers’ seat – TPTB. It stands for “The Powers that Be.” It means, “The people that we have to listen to.”

Why do we need to listen to them?

Because they “call the shots” and “they have the big guns” and “they have all the money” and “they make the rules”. And mostly because, “if we don’t, we’ll be sorry”, or “we don’t really have much choice”.

But all this only works if one believes that they “call the shots” and one believes “they have the big guns” and that “they have all the money” and that “they make the rules”. And especially if one believes that “we don’t really have much choice”.

But sometimes it’s just an illusion. TPTB put up a convincing show and we fall for it. But this usually happens when there is nothing else to believe. Or so we think.

I wrote in my book that, ironically, due to environmental influences (television, magazines, and museums), I, from a strictly Orthodox background, was indoctrinated in evolution before I started learning chumash in school and learned about Creation. When I discovered Breishis at the age of eight – after evolution – it enlightened me that I now need to choose what to believe. Integrated in this choice, is the determination of who is the true PTB.

Once we know who is the true PTB, every other candidate, real or imagined, is a powerless imposter. Pharaoh wasn’t sharing his title with anybody. But neither was Moshe’s G-d. There can be only one winner in this game.

When anybody claims or acts like they call the shots, it pays to look around first and see if there are any competing contenders. If there are, there is something to choose. The candidate with the best press and glitzier campaign is not automatically the one that’s going to deliver the goods. It’s the One with the clearest vision and the truest message.

The first five plagues came from the ground. The second five plagues – the boils and the hail (and the rest) came from the heavens.

העדתי בכם היום את השמים ואת הארץ; החיים והמות נתתי לפניך, הברכה והקללה, ובחרת בחיים – למען תחיה אתה וזרעך.

And –

HAIL TO THE CHIEF!

Prenups XIII – PNA Bankruptcy and Reorganization – The Hirshman 3-Step initiative

 

Welcome to the [intended] final installment on the topic of Halachic PNAs (PreNuptial Agreements). After investing twelve posts to keep it in business, I have no choice but to file for Chapter 13 “reorganization”. From all I’ve written, it’s clear that as a universal, foolproof, silver-bullet solution to the [exaggerated] “agunah” crisis, this instrument is bankrupt.

Throughout the entire journey it was clear that the BDA progressives are biting off more than they can chew. They are trying way too hard to do way too much for way too many. In the effort to satisfy everybody, they need to do a lot of cutting and stitching.

Where I come from, there’s a term for bending and stretching to get an instrument to fit every goal and opinion – the “bed of Sodom”.

But now, good news for the BDA.

A recent find indicates that we can relieve some of their burden. The burden I refer to is the ultra-burdensome language that the BDA felt compelled to insert into the “sticky” (Rav Willig’s term) waiver-of-the-wife’s-earnings part of the contract.

In my Prenups series, I spent the first several posts in demonstrating that the part about the husband irrevocably committing to waive the wife’s earnings at “showtime” stands on very shaky ground. This is something that even Rav Willig admitted to.

In my post Prenups V, I wrote as follows:

The results of my previous analyses indicated that the language of the document, at best, needs at least two corrections. None have been made.

One language problem is that the term “and I recite that I shall be deemed to have repeated this waiver at the time of the wedding” is useless. This is because the groom has no intention for the waiver to take effect at the time of the wedding, only at the time of the separation. So this is what the contract must say. Even after this, it is not certain that the waiver takes effect and it is almost certainly revocable until the time of separation.

Of course, the BDA does not agree with me and does not think this terminology is useless. It was a key issue even in my first post. Here is what I wrote there:

… peiros cannot be called “my wife’s earnings” because they are automatically his as soon as they come into existence. Yet, the phrase “and I recite that I shall be deemed to have repeated this waiver at the time of our wedding” indicates otherwise. Why are those words there?

Rabbi Willig explains himself (71:00): 

“If you look in Kesubos 83 it says that you can’t do that (waive his rights) before the eirusin …”

I again elaborated on this convoluted language in my second post:

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

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

Rabbi Willig was saying that because one cannot waive his upcoming rights until after the eirusin takes place, which is not before the chuppah, this “waiver” needs to be “deemed” to be repeated at that time.

So, here’s a special personal message to Rabbi Willig (if you speak to him, let him know): You can now totally expunge this verbose line from the text of the PNA.

Who says so?

The Mahari Kash (16th century Egyptian sage Rabenu Yaakov Kashtro).

This was ruled by the Rabbanut Beis Din in the Haifa District under the authority of Harav Avraham Meir Shalosh (AB”D), Rav Ephraim Bogard and Rav Ben-Tzion Topik. This is from Case File 1071879/2 issued on 13 Mar Cheshvan 5782 (10/19/2021). You can see it HERE.

In their ruling, they quote Mahari Kash in his sefer Shu”t Ohalei Yaakov 101, who says that what we call “shidduchim” in our times is just like the official eirusin period in the times of Chazal. Mahari Kash seems to draw support from the Rashba. The Haifa Rabbanut dayanim draw additional support from the Taz and the Chasam Sofer and Chavos Yair brought down in Pischei Teshuva Even HaEzer 162.

As such, there is no further need for this onerous “bed of Sodom” verbiage. To the extent that this siluk works even at the time of the eirusin, it works just as much if it is merely expressed during the “engagement” period prior to the wedding.

Nevertheless, I went on to say that it doesn’t matter if it is expressed before the eirusin or after it. It still doesn’t work. This is because, in reality, the chassan is not accepting upon himself any siluk at either of these times. As a result, this “waiver” is truly bankrupt.

So much for good news.

All told, the situation with these halachic PNAs is hopeless – but it’s not serious. I think we can come very close to accomplishing what we want with these PNAs as long as we don’t want them to do the impossible. We need to forget about trying to eradicate the “agunah” problem and get more proactive in terms of preventing it from coming about in the first place.

For this we will need the Yechezkel Hirshman Prenuptial Agreement, or the revolutionary Hirshman [Three-Step Plan] Initiative.

Yep, as usual, Yechezkel has it all figured out. It is amazingly simple, amazingly innovative, and amazingly old-fashioned. No fancy contracts, no lawyers or toanim or notaries, no asmachtas, waivers, “mezonos”, and no “kim li”s.

No, Yechezkel is not going to reinvent the wheel. I didn’t get much credit for it the first time I did it. That was in a previous galgal, anyway. Not at all. We will simply take the tools that Chazal have given us for centuries and, for a change, learn how to use them. Here is all we need to do:

Step 1 - Revamp the Kesuba

Step 2 - Revamp the Chassan/Kallah classes

Step 3 - Revamp the Tanayim

 

Are we ready? Let’s go!

 

Step 1 – The Kesuba

MA[K]GA – Make Ashkenazy Kesubot Great Again! or “Where’s the trei gadya Beef?”

One thing I learned from my decades here in Eretz Yisrael is that our Sephardi brethren and the Rabbanut in general take the Kesuba very seriously.

We know that a Kesuba has three parts. The principle (ikar kesuba), the nedunia (tzon barzel), and the tosefet (bonus). The principle is a set 200 zuz for all chaste Jewish maidens. There is a dispute on how much this amounts to in today’s terms. The Mechaber holds a mere 120 grams of silver. We Ashkenazim are much more magnanimous. As such, the Rema rules that it is 960 grams of silver.

I checked today’s price of silver for a kilo (1000 grams) and got $782.85. As such, the value of the ikar kesuba for us Ashkenazim is a whopping $751.68. For the Sephardim, they can manage with a grand $93.94. but the Sephardim are not to be outdone. In Sephardic circles it is customary to add a very substantial tosefet. Usually, it is nothing less than 120,000 shekels and it is not uncommon to go to 555,555 shekels. Wealthy folks pledge even higher. This amount in today’s dollars would range from about $35,000 to about $163,000.

These amounts are usually marked in current local currency so there will be no need for precious metal conversions. Moreover, since the amount is clearly stated in current local currency, it is generally upheld when a kesuba is mandated for payment in a divorce case. As such, many contentious divorces here in Eretz Yisrael include a full-scale litigation over whether the wife is eligible to collect her kesuba since, typically, there is a serious handful of money at stake. For this reason, Beis Din needs to examine the conduct of the two spouses to determine if either one can be faulted for the divorce. Thus, the prize money of the kesuba plays an influential role in how divorce proceedings proceed and how the couple behaves.

We Ashkenazim are a bit more traditional and prefer to rely on antiquated Aramaic language. We offer 100 zekukim for the nedunia and another 100 zekukim for the bonus for a grand total of 200 zekukim after the principle $750. It is not our custom to add to this.

It should be.

The kesuba is meant to be an amount of money that the husband would take pains to avoid being required to pay and that the wife would take pains not to forfeit. So, let’s check it out. What is the true value of 200 zekukim? (You can check it out HERE.)

We will start at the low end. This is the opinion of the Nachlas Shiva who maintains that the entire 200 zekukim amount to a paltry 2.784 kg of silver which, in today’s prices, will add a whopping $2,180 to the principle $750. According to the Nachlas Shiva, the total value of an Ashkenazy kesuba today is less than USD $3000! This is not likely to have much impact on the spouses.

On the very high end of the spectrum is (who else?) the Chazon Ish who contends that our 200 zekukim come out to 57.6 kg of silver. In today’s world this will amount to just around USD $45,000. This is indeed a respectable amount but still not very exorbitant. In any case, it is by all accounts the upper limit.

The Chazon Ish’s shiur may be effective but it is very difficult to enforce. The general rules of המוציא מחברו עליו הראיה and kim li dictate that, for lack of clarification, we cannot impose more than the minimum amount. In many specific cases, the Beis Din has bent over backwards to justify some of the higher opinions such as averaging out the extremes or imposing the Chazon Ish, but such a recourse needs to be justified. It cannot be imposed by default.

What’s more, this can only work due to the inherent safek of the true value since, in most cases, no chassan really tried to determine how much 200 zekukim are worth when he got married (I certainly didn’t). As such, Beis Din can claim that he accepted upon himself whatever amount they determine. However, if a chassan – or a sharp to’ein – expressly declares that, at the wedding, he had in mind the opinion of the Nachlas Shiva or some other low-price opinion, it is really hard for any Beis Din to forcibly impose a higher amount.

To sum up, even though we can claim a standard Ashkenazy kesuba to be worth $45,750, we must acknowledge that the default amount is a mere $2,950.

We need to change this. An Ashkenazy kesuba needs to be worth a substantial amount. This is how it was in the old days, and this is certainly what our wives and daughters deserve. We need to take a page out of the Sephardic “book” and do a tosefet kesuba that has teeth.

I personally think that אפילו עני בישראל לא יפחות from $36,000 tosefet on a kesuba. Minimum. $360,000 is more like it. $100,000 would be very reasonable.

This would not be changing any minhagim or even the text of the kesuba. We can leave in the standard 100 zekukim keseph for nedunia and 100 zekukim keseph for tosefet and right after it says:  סך הכל מאתיים זקוקים כסף צרוף simply add  ועוד ______ and fill in the blank. (I have seen Sephardi kesubos just like that).

Another very simple method is, that immediately after those fateful words, סך הכל מאתיים זקוקים כסף צרוף, just add these five magic words: כפי דעת מרן החזון אי"ש. This tells us that the chassan acknowledges the higher value of silver zekukim and automatically brings up the tosefet to the $45,000 range without any disputes should the unthinkable happen.

Accordingly, instead of recklessly mandating every mesader kiddushin to refuse to officiate if the chassan does not sign a controversial prenup – which will more than likely lead to a get meuseh and many mamzerim – we should mandate every mesader kiddushin in all circles to refuse to officiate if the kesuba is anything less than $36000 (about NIS 125,000) or, at least, to define the value of silver zekukim according to the Chazon Ish.  

[Update - After this post went online, an astute reader contacted me offline and informed me that the Rabbanut has a standard version of an Ashkenazy kesuba that contains both some blank spaces for adding extra amounts of tosefet and it notes that the zekukim are in accordance with the Chazon Ish. You can see it HERE.

I am grateful for this information and gratified that these "reforms" are available out there. Despite this, I remarked to the reader that this version certainly needs more marketing and wider usage.]

Once the sides agree to beefing up the kesuba, we can advance to Step 2.

 

Step 2 – Chassan/Kallah lessons

An Educated Consumer (Chassan and Kallah) is our Best Customer

 

I wrote earlier that the purpose of boosting the kesuba is to make it into an instrument of influence. It should be something that a husband is not going to want to pay out and that a wife is not going to want to sacrifice. All of this only counts if two things are in effect:

• The relevant parties are aware that the kesuba is a valuable and enforceable document.
  
  
• The parties are aware of when it can be enforced and when not.

Besides this, in exceedingly succinct language, the kesuba spells out all of the other rights and obligations of the two sides.

Knowledge is power and it is also safety and security. It is vitally important to for a newlywed couple to know all these things. Sadly, most of us do not.

In the recent decades there has been much controversy as to whether the yeshivos and the Bais yaakovs are adequately preparing our youth for marriage. Well, the answer is a resounding NO. This is because the aforementioned rights and obligations are spelled out in Shulchan Aruch Even HaEzer. In order to know them, one has to learn these parts of Even HaEzer. But almost nobody does.

The yeshivos don’t teach them. The Bais Yaakovs don’t teach them. And the Chassan and Kallah instructors don’t teach them.

I already wrote about this issue at length almost five years ago in the second half of this post:

The Strange Arm of the Law

 

I highly recommend linking over there and reading the entire post (or at least the last half), but for those who don’t want to bother, here is the primary excerpt:

When even the most observant couples go to Beis Din, they commonly squabble about what he does or doesn’t do and what she does or doesn’t do. Oft times they are shocked when the dayan asks him, “Why do you think she is required to do that?” or he asks her, “What makes you think that he is not entitled to do that?”

They never really knew the rules. And if they did, maybe they wouldn’t be in Beis Din.

When I was a chassan more than 30 years ago, my chassan teacher taught me all of the Halachos of Taharas HaMishpacha like standard and gave me the standard pep talk about how to interact with my wife during the night and during the day. He also did one extra thing that I don’t think was standard. He told me to read over the kesuba up front and make sure I understand what it says.

I am told that today, there is a little more training about worldly issues. But still something is missing.

The rules.

Chassanim [and kallahs] are taught the relevant parts of Yoreh Deah 183-200 but they are not taught the relevant parts of Even HaEzer 69-90. This is where the rules are. I really think that Chassan and Kallah lessons need to include these Halachos.

So, I said it then and I repeat it now. Chassan/kallah classes cannot be limited to Yoreh Deah and Orach Chaim 240. These classes need to cover the relevant parts of Even HaEzer.

The entire body of Halacha is quite vast. It begins at siman 66 of Even HaEzer and continues to siman 118. That’s 53 topics. Of course, we don’t need all of them. But the curriculum must begin at 69 and continue to 80 non-stop. Special emphasis on siman 75 which deals with where to live and 77 which deals with what is a mored and a moredes. It needs to be made clear to the chassan that in the event that he is deemed to be a mored, Beis Din is empowered to add more sums of money to his wife’s kesuba! 

(Note - The official amount is 3 dinarim per week. A dinar is 4 zuz so this would amount to 12 zuz per week which, according to Rema, is a bit shy of USD $50 and about $200 per month. This is not a scary sum of money for a well-off person, but it would still be effective for one who is living on a tight budget. Moreover, it is possible that a modern Beis Din is empowered to adjust this amount to reflect current CPIs.)

After this it’s a good idea to know siman 85 about financial rights. The kallahs must also study 115 about Das Moshe and Yehudis and how they can lose their kesuba rights. The feminists should learn siman 154 about when they can dump their husbands without losing their kesuba. Finally, everybody should learn siman 178 about [in]fidelity.

All this is the get-ready-for-marriage curriculum that every chassan and kallah must know. If they are not taught early on in the yeshivos and Bais Yaakovs, they must be integrated into the chassan and kallah lessons.

Of course, many will ask: Are you insane? It is almost impossible for a chassan and kallah to find time for the crucial Yoreh Deah lessons during the course of their engagement. Now you want us to triple it with half of Even HaEzer on top of that?

And the obvious response is that nobody said that this part needs to be studied exclusively during the engagement period – unlike the Yoreh Deah topics which do. These do not need to be taught one-on-one, either.

Ideally, as noted, these can certainly be part of any yeshiva or Bais Yaakov or Girls’ Seminary curriculum. And they should be. Perhaps BMG should make it a prerequisite of leaving the freezer.

But, if not, and if there is not enough time to get it done before the wedding, then by all means, do it after the wedding. Indeed, if it is a post-wedding extension of the pre-wedding chassan and kallah lessons, it can double as a post marriage supervision program that can help the sides adjust to marriage. Several Chassidish courts have programs like these in place.

Alternatively, it can be offered as a group class by a community institution like a shul or local Kollel. Or, I think it may be a great idea for the couple to actually study it themselves as a “chavrusa-shaft” and consult their joint or individual mentors for their questions and to clarify their differences of opinion on the subject matter.

 

Step 3 – The Tanayim

The Hirshman-RMFeinstein PNA

Once we have a chassan who makes the kesuba worth something and who learns the rules – so he knows what to expect at Beis Din down the road, and we have a kallah that knows that her kesuba is not just a fancy piece of paper to store in her jewelry box but that it is really worth something and it comes with strings attached, all we need to do is to write a very succinct PNA wherein the spouses pledge to allow either the designated Beis Din or some other local Beis Din handle the proceedings in the event of marital strife.

Certainly, we need some teeth to enforce this. But we only need one “threat” to the parties: Anyone who violates this PNA and does not approach the designated BD, but instead takes their dispute to another court before Beis Din allows it, is automatically deemed a mored or moredes respectively.

Now where have we already seen such a PNA?

That’s right. This is HRHG Rav Moshe Feinstein’s “prenup” with just a little bit of mustard on it. And he suggested that it be inserted into the tanayim.

So, in conjunction with the other steps, this is all we need to do. We need to incorporate HRHG Rav Moshe Feinstein’s prenup into the tenayim but just tailor the language to reflect the other steps.

What will the terminology look like?

What was Rav Moshe’s nusach?

In English this is what it says:

“If after the wedding they (the couple) should come to a separation (פירוד – “pirud”), cha’v, then the husband will not hold out from giving a get piturin and the wife will not refuse to accept it, as will be mandated by Beis Din xxxx, etc.”

Firstly, I believe his precise language is too rough and needs to be polished. It is not logical that he meant that any kind of separation (pirud) should automatically mandate giving a get. It is obvious from the context that when he wrote “separation” (pirud), he meant what we refer to as “irreconcilable differences”, meaning there is clearly no hope for the marriage. Since it is quite possible for others to interpret the term “pirud” as only a trial separation or a less extreme level of marital discord, it is too ambiguous to safely use this terminology.

Alternatively, we can say that this is what Rav Moshe meant when he added the words “as mandated by Beis Din”. He is saying that this automatic obligation to deliver a get is only effective if and when mandated by the Beis Din. Either way, his language is too vague and subject to abuse, so it needs to be refined.

It is worth pointing out that Beis Din is not meant to be only the address for a tviat get. It should also be the address for a tviat Shalom Bayit.

Secondly, as noted, this clause needs to be beefed up to reflect the other steps we discussed and to include our threat for punitive action.

Hence, I propose something like this:

אם אחרי הנישואין יבאו לידי קטטה או סכסוך, ח"ו, לא יעכב שום צד להגיש את הסכסוך לבית דין _______ או לבית דין השורר באיזור מגורי הזוג, ויפעלו על פי הנחיותיהם. כל צד שיגיש תביעה בערכאה חילונית או אזרחית או שיעסיק עורך דין לשם כך ללא הנחיית בית הדין ייחשב כמורד/ת.

הצדדים מתחייבים להיות בקיאים [בהלכות טהרת המשפחה ו] בהלכות כתובות בשו"ע אבן העזר סימנים ס"ט-פ', פ"ה וקט"ו ולנהל אורח חייהם בהתאם.

And, in plain English:

If, after the marriage, a dispute or a conflict arises, cha”v, neither party will refrain from referring the conflict to Beis Din _______ or to the prevailing Beis Din in the area where the couple resides, and act according to their instructions. Any party who files a lawsuit in a secular or civil court or engages a lawyer for this purpose without a directive from the Beis Din will be considered a mored/es.

The parties undertake to study [the laws of family purity and] the laws written in Shu”A Even HaEzer simanim 69-80, 85 and 115 and to conduct their lifestyles accordingly.

This is it. Short and bittersweet. No more, no less.

הכל שריר וקיים

It will be signed by the witnesses of the tanayim and a kinyan made by the chassan and kallah and parents as is customary. However, I think it may not be a good idea to read this part out loud at the tish. Make a note to skip it.

Chronology is not important. Some people do tanayim at the engagement and others at the wedding. If it’s done at the engagement, just ascertain in the parental pre-engagement negotiations that the chassan needs to put some meat into the kesuba – either with a respectable tosefet or an acknowledgement of the Chazon Ish opinion on zekukim as explained above. Further, that both sides need to add the requisite Even HaEzer topics into their chassan/kallah education and intend to abide by it.

For those who delay the tanayim until the wedding, it is hoped that the beef-up of the kesuba and the additional education have already been undertaken or, at least, agreed upon.

Note, that since this is just an amendment to the standard tanayim, this should alleviate the objection said in the name of Rav Elyashiv, ZTL regarding the Yashar prenup, not to sign it on the day of the wedding itself. I saw it explained that his reasoning is that onlookers should not think that this is an additional ceremonial part of the wedding ritual. As part of the tanayim, this is irrelevant. The tanayim is indeed a standard part of the wedding ritual. After all, this initiative is modeled on Igros Moshe who earmarked it for the tanayim in the US where it is more customary to do it on the wedding day. Hard to imagine that Rav Elyashiv would conflict with Rav Moshe Feinstein on this issue.

So, here you have it. The Hirshman Three-Step Plan Tanayim Halachic PNA Initiative.

No fancy contracts, lawyers, notaries, fines or waivers. Nothing. And for those who put it into effect, it is guaranteed to bring positive results. This is the hydroxychloroquine and ivermectin of PNAs. Forget Rabbi Michael J. Broyde’s unsafe and ineffective vaccines.

Will this reduce recalcitrance?

Yes, it will. And it will strengthen their marriage. I guarantee it.

Will this eradicate recalcitrance completely?

Of course it won’t. But this is not our goal. Such a goal is unreachable in any case. Bear in mind that these agreements are only for people who want them.

 

Here is my guarantee:

אם את הדבר הזה תעשה וצוך א-לקים ויכלת עמד וגם כל העם הזה על מקמו יבא בשלום! 

Post Script - Any reader who wishes to promote or disseminate this initiative is hereby authorized to do so freely and is under no obligation to do so in my name or to credit me for it in any way.   YH

Prenups XII – The Straight Dope on the Yashar Initiative

 

It’s hard to believe that it’s a full year and a half since I left off on the series about Halachic Prenuptial agreements. It began over five years ago in November 2017.

One of the main purposes of the entire One Above and Seven Below project is to explain to mitzva-observant “NCOJs” (non-“chareidi” Orthodox Jews) who do not really understand the chareidi value system and do not participate in it, what the chareidi value system is and why, because of it, we see things differently.

Hence, the purpose on the series about Halachic prenups was to explain why they are not being embraced in the chareidi world and, from my viewpoint, will never be embraced.

As a rule, the chareidi world has looked askance at “Halachic” prenuptial agreements for many reasons:

• There are serious Halachic issues that we don’t want to ignore.
  
  
• We are not fond of new ideas and “rituals” that are not part of our tradition (i.e., my father never signed one and neither did his or his or his).
  
  
• We don’t really need them. Certainly not at a community wide level.
  
  
• As an addendum to the above, one can argue that they increase the likelihood that troubled marriages, which could be saved, will end in divorce.

As for the first reason – the Halachic issues – I invested many posts analyzing them. A basic overview and a comprehensive list of issues is available in this post.

The second reason is self-explanatory.

The last two reasons are what I want to dwell on here as I discuss the last outstanding candidate for Halachic prenups – the Yashar Initiative.

Apparently, some progressive members of the chareidi world are falling into the trap of offering man-made solutions to G-d-given problems. I explained why it won’t work in this post. Most progressives (chareidi or otherwise) don’t read my posts.

In many ways, I am grateful for this year-and-a-half-long hiatus in writing about prenups because it gave me the opportunity to sit back and observe if anything of substance will come of this Yashar Initiative. I certainly did not expect this to take off and, as far as I can see, it surely hasn’t. This comes to me as no surprise.

Why?

Like I wrote above, even if it may be helpful, we don’t really need it.

Real hard-lined recalcitrance does not happen much in the chareidi world, and this is due to several reasons. At the top of the list is that chareidim have a more profound perspective of what marriage is all about and, because of it, we have a much better track record than those who are just “Orthodox”. To us, marriage is much more traditional, reverent, role-defined, and goal-oriented than it is to the non-chareidi masses. As a result, we have less divorces in general.

I can attest to this. I lived in the Lakewood community for five years while I was single. After I married, I lived in some mainstream US communities and lived over twenty-five years in Har Nof. I have never, ever seen a “plague of divorces” in any of these communities. If I sat down with a pad and paper and tried to make a list of how many chareidi/Yeshivish couples I know over the past forty years who got divorced, I doubt I could put down even fifty names. Without prejudice, I must report that most of the divorced couples I know were couples where at least one spouse came from a very religiously compromised background or a dysfunctional home.

Along with the phenomenon of less divorces comes a much lower level of recalcitrance. Bear in mind that divorces are never meant to be quick and simple. It is not uncommon for marriages to carry a fair amount of negotiation between the sides over money or where to live or whatever else before they are “finalized”. Sometimes proceedings are delayed, held back and even dropped because the sides cannot reach agreements.

All this is for two parties who are not yet bound to each other. No joint assets or children or anything.

If so, why should anybody expect that undoing an existing bond where there are joint assets and children and, perhaps, other issues, should require any less negotiation and should not be subject to at least the same propensity for delays or one side refusing to cooperate for lack of reaching an agreement?

Thus, typical divorces can get sluggish for “natural” reasons which can usually be worked out, even if it takes a good deal of time. This is because, in most cases, when all is said and done, both sides really want them to eventually work out.

Conversely, spiteful recalcitrance for “its own sake” is quite rare by us chareidim. Sure, it happens and in the few cases that it does, the agunah advocates have a field day year promoting it as a poster child case. Many of us know about one such poster child case in Monsey that even includes a full-sized poster on Rt. 59. I gather that nobody signed a prenup in that particular case, but the question stands: if there would have been a BDA-type prenup, would it have made any difference?

All told, the yeshivish/chassidish/chareidi world does not promote these PNAs and, as a community, we are none worse for the wear because of it. Yet, we do have our fair share of divorces and some of them are very messy and devastating affairs that cause much more damage to the parties (and the children) than they need to. As such, numerous askanim and Rabbanim/dayanim think that even the chareidi world has somethingto gain from some kind of a “Halachic” prenuptial agreement.

After this so very short introduction, it should not surprise anybody that I was personally distressed to get a copy of Mishpacha Magazine in my mailbox in Dec. of 2019 (it’s been that long?) sporting a primarily black (i.e., gloomy) background and the feature article: Can we find a better way to divorce? A renewed Call for the Halachic Prenup.

A better way to divorce? Are you serious?

Incidentally, there is a silver lining counterargument to the situation. Maybe we don’t want a better way! To some degree, it is a good thing that divorces should be acrimonious and devastating. This will cause people to appreciate their marriages more and go the extra mile to avoid this fiasco. If divorces were all quick and smooth and ceremonial, more folks would end up doing it. Not good for business (unless you are a to’ein).

But askanim need to keep themselves busy. If they don’t, they’re not askanim. And there is logic to saving the couple from themselves and saving their children from the self-destruction of their parents which invariably destroys the children, R”L.     

 

To address the Call of the Wild (or the Call of the Child) a number of devoted askanim led by Martin Friedlander and Eli Goldbaum created the Yashar Coalition and, with it, the Yashar Initiative.

What is the Yashar Initiative?

In my opinion, it isn’t really much of an initiative but rather, it is a modernized, enhanced version of HRHG Moshe Feinstein’s one line “prenup” expanded and expounded into a formal agreement between the sides to encourage them to play nice.

We know that the BDA prenup is a combination of a binding arbitration agreement and a penalty-for-recalcitrance agreement and the Ariel Rosen PNA is only a recalcitrance penalty agreement without the arbitration agreement. The Yashar “initiative” is nothing but a binding arbitration agreement without any built in pre-determined penalties. 

The parties agree to submit their grievances to a pre-designated Beis Din and allow the Beis Din to guide them through their ordeal for better or for worse. There is no preset penalty for added mezonos or anything to pressure the husband to give a get, although Beis Din has the authority to assess the husband with support costs at show time in accordance with Halacha. 

 

All this is fine. It is very similar to Rav Moshe Feinstein’s “prenup”. I noted in that post that the Yashar prenup (and some of the others) is meant to be able to enable the court to force the couple into arbitration through Beis Din but it is hard to see it being carried out in practice. If my memory serves, Rabbi Avraham Kahan said in his Headlines interview something like, “I don’t really know what we’ll do if the husband refuses to show up to Beis Din.”

So, in the larger picture, the Yashar Initiative has all the attributes of Rav Moshe’s “prenup” - it is Halachically sound and relatively toothless. It essentially obligates the couple to do what they are obligated to do even if they don’t sign it – air out their grievances in Beis Din.

Yes, there is indeed something to be said for taking an abstract obligation and putting it down on paper and signing on it. It makes it more concrete and deliberate and impedes one’s ability to deny it or “play dumb”. This is akin to the concept of making a vow (shevuah) to uphold the mitzvos of the Torah as discussed in Nedarim 8a. The gemara endorses this as a tool for one to motivate himself, yet in Shevuos 27a it tells us that this is not an actual shevuah and one is not flogged for violating it.

Hence, at the end of the day, it doesn’t really have a lot of teeth. I find it hard to imagine that, even if our “poster-child” from Rt. 59 in Monsey would have signed the Yashar Initiative, that it would impact his case much. So, the looming question is:

Is it good for the Jews or bad for the Jews?

To answer this question, we need to rephrase it:

• What good does it do? (Pros)
  
  
• What bad does it do? (Cons)
  
  
• Do we come out ahead?

The Yashar agreement is trying to address a key problem that dominates the parsha of divorce in today’s world, but I am not optimistic that it gets the job done.

If I were to assess the biggest problem in Jewish divorce it is that the drama is all too frequently played out in secular court. The courts, the laws, and, most certainly the lawyers, are what cause the situation to get out of control and to become acrimonious as well as prohibitively expensive. It also creates many forms of coercion and duress which bring about serious questions of get meuseh – a forced get.

By our Halacha, every divorce process – just like any monetary litigation - must be initiated in Beis Din. For whatever purposes the courts are needed, they are only to be implemented under the guidance and approval of Beis Din. The couple must first go to Beis Din and let Beis Din determine when it is appropriate to go to court and for what purpose. If the woman “jumps the gun” and goes to court without the consent of the husband and without the approval of Beis Din, which is so often the case, I can’t think of any reason that the get won’t be a get meuseh and totally invalid (see Shu”A Even Haezer 134:8. Note - I discussed this in the earlier post and remarked that it seems that most poskim and even Rav Moshe Feinstein are not bothered by this. But it is far from clear.)

Thus, the important thing is not that the couple should come to Beis Din, but that they should not go to court before Beis Din allows them to. As such, it is not sufficient for the couple to have an agreement where they agree to go to Beis Din. The main part of the agreement must state that no party can approach a secular court unless and until Beis Din allows them to. I would venture to go a step further and put into the agreement that no side can engage a lawyer in the process until Beis Din allows them to. This does not mean that the sides cannot consult with lawyers for legal advice about civil rights and procedures. It means they cannot retain one for proceedings and issue ultimatums to the other party. Accordingly, there would need to be some sort of a penalty for any side to violate this aspect and “jump the gun”.

The language of the Yashar agreement says that the parties will bring their case to Beis Din, but it says nothing about not going to court or engaging a lawyer before going to Beis Din. Since this is generally where the problems start, what good does this agreement do?

Now, even if the Yashar people want to insert this kind of language, we have a number of ironic catch-22s.

Firstly, as Rabbi Kahan stated in his Headlines interview, “I don’t really know what we’ll do if the husband refuses to show up to Beis Din.” What, exactly, should be the problem? Isn’t this an enforceable pre-arbitration agreement that is legally binding?

Yes, indeed. The pre-arbitration agreement is indeed enforceable, but where is it enforced?

In secular court.

If the purpose of the agreement is to get the couple into Beis Din and away from the secular courts until the time is ripe, but the husband’s recalcitrance is going to force the wife to open the case in court, we are back to square one.

A second catch-22 is that I noted that the parties should not even engage a lawyer into the case until Beis Din says to. However, we all know that the law requires that any party in an arbitration is allowed to have legal representation. Indeed ,the agreement itself acknowledges this fact. So we can’t really disallow any side from engaging a lawyer.

To remedy this, the agreement must stipulate that although each party can have a lawyer represent them at arbitration, the lawyer is forbidden to contact or serve notice of legal proceedings to the opposing party before the Beis Din arbitration takes place.

There is an additional irony of this point of not engaging a lawyer or going to court before the case is heard in BD. This is that the entire notion of these prenups is being promoted by liberals and women’s advocacy group to ensure that their men play fair and show up to Beis din to give a get. It supposedly helps the women at the expense (literally) of the men and, as such, it’s a hard sell to get the men to comply.

But alas, when it comes to going to court and sending nasty letters from lawyers, the women and their advocates are generally all for it. Today’s secular courts give the women better terms than they get from Beis Din. They prefer to play the game in court and only show up to Beis Din for the ceremonial Halachic requirement of getting a get. The last thing the women want to do is to sign an agreement to rein in their “rights” to open a case in court. As such, would this agreement be properly drafted (which it is not), it would be a hard sell to get the women to sign it, not the men!

A third catch-22 is the “Bitul Modaah” clause in clause 37. It states: “The Parties represent that they have each had the opportunity to seek the advice of counsel and toanim of their own choosing prior to executing this Agreement.”

This is the clause that says, "I am doing this of my own free will and have had informed consent. I know what I'm doing." This is similar to what Groucho Marx called the “sanity clause” (The parties represent that they are of sound mind and not insane and that they know what they are agreeing to.) His brother Chico tells him that, “You can’t fool me, there ain’t no Sanity Clause”. What I think Chico means is that, if one party claims that he was coerced into signing it and didn’t know up front what it says and/or he did not have the chance for council (or that he was or is insane), this claim nullifies the entire agreement including the integrated sanity clause.

I wrote about why an integrated Bitul Modaah cannot work when I discussed Clauses L and Q of the Rachel Levmore PNA in this post.

The obvious response, and remedy, to this problem is to say that for this reason, the agreement needs to be witnessed and notarized. Notarization means that an objective third party is affirming that the agreement was signed by the relevant parties in good faith.

What we learn from this is that to make this work, we need a 43-clause contract which is expected to be reviewed by lawyers and toanim (neither one of which are cheap if they are not relatives), witnessed and notarized, and it should also be approved by the Beit Din. I suppose it should also include a kinyan for good measure.

As Hillary HaZekeina said, “It takes a village.”

This agreement is supposedly designed for the Torah world, yeshivaleit (both chassidish and misnagdish) and Beis Yaakov girls. In our circles, engagements are relatively short and terribly hectic. Chassanim and kallahs are busy with married-life lessons, getting halls and caterers, bands, flowers, clothes, invitations, finding a place to live and making it livable all in the space of six to twelve weeks on average. All the while trying to remain as happy and exuberant as they felt on the day of their engagement.

Now, among all this commotion, we also want to burden this exuberant (or perhaps exceedingly nervous and fragile) chassan and kallah to take out time to make divorce plans in the middle of their wedding plans!

How thoughtful.

And to call lawyers and toanim and notaries and to get a Beis Din to sign along.

Did I mention getting a Beis Din? Which Beis Din? Where?

Note, we are not talking about people who are customers of the BDA שכבודם מלא כל הארץ. Those folks will just use the BDA prenup. We are talking about the black-hatters. We are suggesting to them, before their wedding, to choose a Beis Din for their impending potential divorce.

Where are the chosson and kallah from? Are they both from Lakewood? Both from Borough Park? What if not? What if they are from different cities? Different countries? Different continents?

Perhaps they know where they plan to get married. But do they know where they plan to live? Do they know where they plan to divorce (as long as they are anyway planning their divorce)?

What if the boy is from Monsey and the girl from Miami and they are getting married in Lakewood and plan to spend the first three years in Eretz Yisrael? Then, one spouse wants to stay in Eretz Yisrael and one doesn’t and the marriage goes south and they split and, let’s say, the girl takes the two kids and goes back to Miami and he stays in Ramat Eshkol. The Yashar agreement specifies a BD in Lakewood which doesn’t exist because the Av Beis Din took a position in Toronto. What then?

Once we understand all this, we can go back to our initial questions:

What are the Pros and Cons?

On the plus side -

Well, there don’t seem to be any Halachic problems with it and, if both sides willfully and amicably adopt the agreement and notarize it and implement it, then it might serve to help them divorce happily ever after. It won’t make their marriage any better, only their divorce.

But that’s about it.

On the minus side –

If there is no firm language to dissuade and discourage either side from going to court before Beis Din, including penalties for such, as there currently isn’t, it’s not worth anything. If there would be any such firm language, I doubt the women will want to sign it, nor will the women’s advocacy groups support it.

It is way too intrusive and cumbersome to burden a young exuberant couple with at the eve of their wedding. More so if we are dealing with an anxious and vulnerable couple. It could stop some weddings before they even begin.

Don’t take this from me. I noted that this agreement is generally an enhanced version of Rav Moshe Feinstein’s tanayim prenup from Igros Moshe Even HaEzer 4 107. Rav Moshe says that such an agreement (to pre-designate a Beis Din to go to) is good and clear, BUT…it’s not for everybody. He clearly says that we must evaluate the couple to ensure that such a stipulation will not be the cause of discord.

Thus, even HRHG Rav Moshe, ZTL, says that this is a parah adumah that will help some people and hurt some others. Incidentally, Rav Moshe’s initiative was published in Cheshvan 5740 (43 years ago) as an addendum to a standard tenayim. From then, it never gained universal acceptance. Personally, I am not aware of a single tenayim anywhere in the world that includes this clause.

So much for a universal agreement that should be implemented for the masses.

Sof davar, in my view, the Yashar Initiative may be a straight shot but it’s a straight shot to nowhere. My instinct is that it was formulated so that the chareidim can also appear to be “progressive” and to "keep up with the Willigs". 

Build a better prenup and the world will beat a path to your chuppah Beis Din.

It won’t work. The traditionalists don’t need it and don’t want it. It will never placate the liberals. And, besides, none of these agreements are going to work on a large scale for the reason I expounded in my acclaimed 2016 post about Desperate Measures. I wrote there:

Likewise, we will not eradicate problems of Shalom bayis and the Agunah issue. Why? Because HKBH doesn’t want us to. He wants us to achieve ברצות ה' דרכי איש גם אויביו ישלים עמו. (Mishlei 16:7) He wants us to choose marriage partners that will primarily enable us to fulfil His will (אם בחקתי תלכו...) not our own. And any “solution” that is not based on this isn’t going to work.

But if it makes any couple feel better, it’s there for the taking.

 

Post Script –

Despite all this beating around the bush with these “Halachic” PNAs – whether Yashar or krum – all is not lost. Yechezkel has his “three-step plan” to help make marriages more robust and to reduce divorces in general and make them smoother when they happen (sometimes).

But, as usual, I am way past my allotment in this post, and it will have to wait for another one. Meanwhile, love your spouse and keep the faith (oh, am I giving it away?...)