Prenups V – Trei Gadya, Trei Gadya: Part One - Is the Shunra Guarding the Goat-pen?

Author's note - Please see the previous posts about the BDA Prenuptial Agreements - Part 1 , Part 2, Part 3, Part 4.

In this week’s Parsha, Rivka Imenu instructs Yaakov to go to the goat-pen and take “for me” two kid goats. Rashi tells us that Rivka was instructing Yaakov to take what was rightfully hers to take “...for this is what Yitzchok wrote to her in her Ketuba, she may take two kid goats each day.”

Yes, I took that last written test in the Toen Rabbani cycle two days after Rosh HaShannah. It takes quite a while to get the results of one of these tests. They usually come out about a week before the next test on the cycle – close to Chanukah. I won’t know if I passed the test until then but I have a good feeling about it.

In the meanwhile I am prepping myself toward this line of work and am learning new things all the time. And the more I look into the concept of the BDA prenups, the more concerned I am.

For starters, it’s been a full year since I opened this series. 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. Details HERE.

The second language problem is that the clause about “through the Jewish law mechanism of Kim Li” in the last paragraph is likewise faulty. If anything, it must say: “through the Jewish law mechanism of Kol Tnai she’b’mammon kayam”.  Details HERE.

So a year has passed and I have seen no changes. I know for certain that my posts have reached the eyes of some of the chief architects and promoters of this document and it would surprise me to learn that it hasn’t reached the attention of Rabbi Willig, Shlita. Although I can understand a dissenting position on the first correction, there is absolutely no room for dispute on the second correction.

The fact that the document continues to remain uncorrected tells me that the BDA does not take these issues seriously. I think this undermines their integrity. The impression I get is that they maintain that their document has been tried and tested and endorsed by some prominent Gedolim so they can ignore all the detractors. It doesn’t matter if someone brings up issues that haven’t been addressed – if it ain’t fixed, don’t break it.

What frightens me more than their complacence is their claim in a 2013 resolution that “the BDA prenuptial agreement maintains a 100% success rate in preventing get-refusal in the context of a divorce following marriages where it was properly signed and notarized”. Firstly, this sounds like propaganda. How can they verify this "statistic" to the public?

Secondly, there are two scenarios where, even according to the BDA (and Reb Shalom Spira’s prenup, as well) the prenup would not be effective. One is a case where the husband is flat broke, and more likely in debt, and he doesn’t really care about how much money he needs to pay his wife for mezonos. He doesn’t have it and he won’t pay it. Let her hair turn grey.

The second is the case of moredes - a rebellious wife - where the woman is not entitled to mezonos. It won't matter how large is the support allowance; she is not entitled to it. I intend to elaborate on the moredes issue in Part Two of this post.

Now, Reb Michael J. Broyde, in a guest blog post in Emes V’Emunah on August  20, 2017 addressed the moredes scenario. He had two responses. His first response is to promote the controversial Halachic position that even though a moredes loses her rights to support, if the husband withholds the get, he is still liable for the support. There are numerous problems with this position that I hope to discuss in Part Two.

The other response is that, “since the BDA Prenup is an arbitration agreement, the bet din panel hearing this matter could decide not to order the payments…” This says that they have the absolute power to decide whether or not the wife is a moredes. 

What this means is that the “husband-to-be” is entrusting the moredes status into the hands of the BDA Beis Din who have a vested interest in somehow making sure the woman is not ruled a moredes if only to keep up their flawless track record. This may be so even where, under more objective conditions, a typical Beis Din would rule that she is a moredes. Bear in mind that for the mezonos part of this contract, the basic Halacha is that any questionable case (sefeika d'dina) has to be ruled in the payer's - the husband's - favor. It is very questionable to say that the bizarre kim li clause at the end of the agreement overrides this privilege.

The shunra (cat) is watching the goat-pen.

For now, I only want to comment that, in light of these limitations, can the RCA really claim the PNA to be 100% effective? You mean in 26 years they never had to deal with a deadbeat husband? In all that time there was never a bona fide moredes? Or, are they fudging the numbers the same way the unemployment office does – if you simply gave up on looking for a job, you are not called “unemployed” so you don’t count for the statistics; here, too, if she is disqualified for being a moredes or if the husband is a deadbeat, it was not meant to work so it doesn’t count for the statistics?

100% is just too “neat and clean”; like the Beis Din that votes 23-0 to convict (Rambam Sanhedrin 9:1). Clearly, the BDA is not an objective Beis Din (we already established this with the "kim li" clause), and this is very troubling.

However, time wounds all heals. The claim of 100% was made in a resolution dated 2013. It’s been five years since that time, and perhaps their record is not so impeccable. So, what if the statistic is no longer 100%, would they have the integrity to tell us? Or do they want us to think that what they claimed in 2013 is in effect forever even if it isn’t?

My experience is that when conditions change away from one’s preferred position, he doesn’t bother to update his followers. (Like on all those Jewish sex offender lists. When a person who was listed as “Arrested” gets fully acquitted, somehow this development is never noted on the list. More on this in upcoming posts.)  In fact, the RCA added another resolution about prenups in 2016. This is the one about mandating their Rabbis to require them. For some strange reason the 100% claim is notably absent. What does this say to me?

While we are discussing updating things and the 2016 resolution, there is another serious issue that, to date, nobody has brought up. Endorsements.

To understand the problem, I need to go back to my tale about the Eiruv in “Hammerstone Hills”. I wrote that one of the supporting Rabbanim rescinded his support about 2 or 3 years after the eiruv was constructed. He gave a public speech in his shul to explain why he rescinded and he gave numerous reasons. 

The first reason was that he initially supported the eiruv because he knew that it could and would be erected according to the Halachic standards of Rav Moshe Feinstein, ZT”L. However, after the construction, when certain defects and shailos came up, instead of making the necessary repairs, the “committee” used some lower standard bidiavad kulos to consider the eiruv valid. What came out was that, although the eiruv was built in accordance to the standards of Rav Moshe, it was not being maintained at the standards of Rav Moshe.  It’s like when a kosher food product changes its formula and loses its hechsher or the mashgiach retires and isn’t replaced. If there is no Kashrut Alert, it stays “Kosher” forever.

His second issue was that they had plans to unite this eiruv with new eiruvim being built for adjacent neighborhoods. Those eiruvim were not planned to comply with the standards of Rav Moshe even from the get-go. This Rabbi was afraid that the tzibur will use the reputation of the first, more proper eiruv, along with his endorsement, to falsely imply that the other eiruvim were just as kosher (and that he endorses them). This is the old “Kosher by association” trick where one product or restaurant/bakery is certified kosher and then the owner opens a second restaurant or bakery with the same logo but no such hechsher. People will think the baal-hamachshir on the first establishment also endorses the second one.

The 2016 resolution that mandates all RCA Rabbis to require a PNA for every wedding they officiate at, or refuse to officiate, is very scary. As it is, the PNA is treading on thin ice in the area of coercion and many are those who invalidate it for this reason. But even those who do not – and we know that Rav Asher Zelig Weiss’s letter of endorsement only addressed the issue of coercion – may feel that this resolution crosses the line. It certainly invokes the words of the Rema in Even HaEzer 134:4 who stated that bidiavad, if the husband gives a get while under the influence of a self-imposed penalty, the get is still valid “since initially he was not compelled to do this…”. The obvious implication is that if the fellow was compelled to accept this fine, it is a forced get by all opinions. In line with this remark in the Rema, even though we are now dealing with mezonos and not a fine, for one to be compelled to accept upon himself an exaggerated amount of mezonos is very problematic to say the least.

But wait! This PNA is endorsed by such great men as Rav Zalman Nechemiah Goldberg, Rav Ovadiah Yosef and (supposedly) Rav Asher Zelig Weiss, no?

Well, it is definitely true that Rav ZN Goldberg, Shlita, Rav Ovadiah Yosef, ZT”L, Rav Chaim Zimbalist and Rav AZ  Weiss, Shlita endorse the concept of the PNA. Further, the basic language of the agreement, more or less a copy of the Toras Gittin, was endorsed by Rav ZN Goldberg, Rav Ovadiah and three others back in 1992. Rav Asher Zelig Weiss wrote an undated letter where he outlined the mechanics of reasonable mezonos and ruled that there is no problem of coercion in this case. He clearly implies that if the allowance for mezonos is not reasonable, we are in trouble. We have no idea from his writing at what point the mezonos are considered unreasonable. Of course, we can always ask him (AMV”Sh).

However, there have been a few changes since 1992. Did anybody endorse those? There was a strong resolution in 2006, another in 2013 and the strongest yet in 2016. Each one takes the question of get meuseh up one notch. Did any Gadol endorse any of these resolutions?

Other Halachic issues were raised such as the issue of asmachta raised by Harav J.D. Bleich, Shlita. Of course there is the system of “meachshav” and Beis Din chashuv but there are other issues. Rav Shalom Spira in his essay mentions opinions that hold that meachshav and Beis Din chashuv only apply if there is a single unknown condition. But when there are multiple unknown conditions, even these mechanisms do not help.

Beyond this is a similar asmachta issue that nobody has yet brought up (you heard it from me first): There is a question if one can make a binding undefined obligation (התחייבות לדבר שאין בו קצבה). If one cannot, this would be a big problem for the BDA prenup. Of course, it is no problem because only the Rambam holds it is not binding and all other rishonim say it is binding, and we go with the majority (kim li is still an issue). The Mechaber tells us this in three places in Choshen Mishpat.

But wait! Comes the SM”A in one of those places (CM 131:13 sk 25) and says that this is only when the obligation is unconditional. But if it depends on a condition which makes it an asmachta together with the undefined obligation, then even where an asmachta would normally work (like meachshav or BD chashuv), the rishonim will agree with the Rambam that with this double whammy, there is no binding obligation!

Did Rav ZN Goldberg and Rav Ovadiah and Rav AZ Weiss address these issues and give their endorsement in the face of them?

And, finally, I am back to where I began this post. In the first three parts of this series, I raised the issue of flaws in the waiver of the wife’s earnings. I summarized them earlier. Rav Willig, Shlita, in his famous shiur conceded that this waiver is a "very sticky" issue. He mentioned that Rav ZN Goldberg addressed the issue of a hodaas baal din on a future event (exceedingly novel and controversial). But the issues I raised are different ones. There is no indication that Rav ZN Goldberg addressed them. The BDA doesn’t want to acknowledge them (they have a lot on their plate with this PNA). But they do not have any outside Gedolim who examined these issues and were able to dismiss them.

We like to think that all major poskim are flawless geniuses who, without fail, take all Halachic angles into account whenever they rule on an issue, and so, all of these issues are covered. The truth is, they only deal with the point of the question that is being asked. Very often, they do indeed bring up collateral issues but not always. They are all very human and don’t think of everything.

It looks to me that the 1992 endorsement certificate is long expired but the BDA is holding it on life support.

I have spent this entire post complaining about corrections, changes and updates that needed to be made but were not. I want to comment now on one change that was made. 

When I examined the BDA PNA a year ago to analyze them, there were two versions: a regular one for a unilateral commitment by the "husband-to-be" and a reciprocal  bi-lateral one which included a commitment by the "wife-to-be" to adhere to the rulings of the BDA court under penalty of a fine to her husband (women can pay fines to their husbands). The reciprocal agreement was more balanced and, consequently, more practical. The financial risks to the husband stay the same, but since there are also financial risks to the wife, it is less likely to be abused. As a bonus, this version serves as a sop to reassure mankind that this isn't all a liberal feminist plot to artificially empower the women in divorce cases. 

When I checked the forms on the website of late to confirm that the language had not been changed I was astounded to discover that the reciprocal version is nowhere to be found. It vanished!

Where did it go - and why?

The lack of this version (especially after it was initially in circulation) now presents the opposite effect. It confirms to mankind that this document is indeed a liberal feminist instrument. With all its other problems, this does not help matters.

Believe it or not, all the above was the intro for what I really wanted to write in this post. But, it’s getting late and I can only make a post so long. I have discovered that once in a while there are people who actually read them.

So I still haven’t let on what I want to discuss now and what it has to do with the Rashi about Rivka and the two kid goats. But, let that be its own hint and we will leave it for the next post (I hope).

In the next post, I hope to make some “seder”…

Even HaEzer and Dr. Kenegdo (or - - Beating Around the Burning Bush)

My series about anomalies in Chazal and the Murex Trunculus debate will need to go on the back burner until after the Yomim Tovim. I have one more test to take on the Toen Rabbani cycle which, due to some scheduling glitches, was rescheduled to two days after Rosh HaShannah. This test is on the second half of Even HaEzer and involves very elaborate issues of Halachic Family law. At present, along with the regular pressures of Ellul and Yom Tov itself, this requires all of my attention.

So lately, I haven’t been able to concentrate on analyzing Agadata – which means looking everything up. I only have time to review the parts of Even HaEzer that are necessary for the test and to read up on the Piskei Din that are released by the Rabbanut courts.

I think Even HaEzer is the neglected child of the Shulchan Aruch family. Nobody really studies it except the dayanim and toanim that need to know it. Of course, every Rosh Yeshiva needs to know how to be mesader Kiddushin, but this involves doing it right. They don’t need to know much about heteirei nissuin or safek kiddushin and, if they do, they call a dayan.

Even HaEzer deals with the most sensitive issues of our lives – not the least of which is hetter agunot. Real agunot. After this are issues of yichus – mamzeirus, geirus, pesulei kahal and pasulei kahuna. In short, who can be married to whom and who cannot. It also covers shalom bayis – marital obligations between spouses and under what circumstances can a marriage be dissolved. Also, marital property rights and what can widows and daughters demand from the estate of a deceased husband/father. And don’t forget child custody.

It doesn’t matter how we feel about any specific Halachos. If we are Orthodox Jews, then by definition, we are bound to these Halachos. These Halachos determine how “kosher” we and our relationships are. Our community and Judaism in general, can only survive if we adhere to them loyally. 

Because Jewish family law is so important and has such dire far-reaching consequences, the founding fathers of this great medinah did one very wise thing. They entrusted all of the Even HaEzer related issues into the hands of the Rabbanut. The most important spiritual parts – marriage procedure, divorce procedure, and all questions of status (eishes ish, Jewish status, pasulei kahal, and pasulei kahuna) are exclusively under their control. Property and child custody can be litigated either in Beis Din or secular court.  

Let me tell you that to be a dayan in Rabbanut family court is no piece of cake nor is it any picnic. Firstly, the scope of just Even HaEzer with its mere 178 simanim (less than half of Choshen Mishpat and a third of Orach Chaim) is vast. It is not something that one can learn in “his spare time”. Secondly, they must deal with the most dysfunctional and base segments of the population. Husbands and wives who don’t get along and who lie and cheat on each other and create all kinds of problems of pasulei kahuna and pasulei kahal and quasi-agunos. They include abusers and accusers who ruin each other’s social and financial lives and then demand monetary compensation after they did everything in their power to render their significant other friendless and penniless. 

Moreover, these problems are prevalent among those who are only marginally religious or totally irreligious and the free thinkers who believe that the Jewish world is better off in an environment of secular civil liberties and unbridled freedoms.

And, when their lives crash, the dayanim are expected to clean up this mess.

After reading countless psakei din, my view is that we are blessed with a solid corps of exceedingly learned and dedicated dayanim who carry a tremendous burden on their shoulders and they are doing a hero’s job of it. I don’t envy a single dayan (except for his scholarship). As the cliché goes: it’s a thankless job, but somebody has to do it.

And the only way they can do it efficiently, is if they have full legal backing of the State.

As such, the family courts of the Israeli Rabbanut are an intrinsic part of the legal system and its procedures and rulings have full legal status. It is subject to State law enforcement, perjury, and contempt of court just like any ruling from the secular court. And it needs to be this way.

This is one thing about our medinah that we must appreciate and support. It is vital to preserving the Jewish character of the people let alone that of the State. It protects our identity and kosher status and also serves to make marriage in our circles more stable and durable. It benefits all of us. 

One important statute meant to ensure that Jewish marriages in Eretz Yisrael are properly regulated by the Rabbanut, is the Marriages Registration Ordinance which is the law of the land. This ordinance gives exclusive authority to the various religious bodies­ – the Rabbanut in the case of us Jews – to regulate marriages and to determine who is authorized to perform them in order to help them protect us from charlatans. There are two basic parts:

1.   To officiate a marriage in EY, one needs to be approved by the Rabbanut. This is not too difficult for any genuine Orthodox clergyman. Some people are certified on a permanent basis and others only temporary. Any Rosh Yeshiva can get a temporary or one-time permit for a specific wedding, such as for a Talmid.

2.   Every such marriage must be registered in the Rabbanut. This helps ensure that one who gets married is Halachically fit to be married and is not currently registered as being married to somebody else. Not fool-proof, but it helps.

In order to put teeth into the second part, the law calls for a fine and even incarceration for up to two years for one who performs a marriage and does not register it. 

Remember that this is the law of the land and this is for our protection.  

We have to appreciate the fact that the medinah is reasonable at the very least in the Even HaEzer department. Halevay they should be as concerned about geirus. Unfortunately, even though yichus is in Even HaEzer, geirus is in Yoreh Deah. The state has not yet subjugated itself to Yoreh Deah.

And so it is, Jewish family law is probably the only area where the Chareidi world is on the same page as our secular government. The ironic thing is that this is probably the only area where the liberal non-Chareidi “dati” world is not. Those who believe in civil liberties and freedoms for all. Thus, my stomach twisted into knots when I was shown a recent blog (Aug. 23, 2018) in Times of Israel written by Dr. Susan Weiss titled: When the judges answer to a Higher Authority

If you don’t know who Dr. Susan Weiss is, here is the blurb on the blog post:

    ABOUT THE AUTHOR

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.

Yes, I know. A few posts back I was criticizing JCW (Jewish Community Watch) and here I am criticizing the founder of CWJ. I don’t know what it is about these three letters, but I don’t get along with them. Incidentally, I am not too fond of the World Jewish Congress (WJC), either.

More about Dr. Weiss. As the blurb says, she is a fighter for civil liberties, which means living any way one wants, and for religious liberties, which means liberties from religious constraints. 

But, guess what? Even though she does not cover her hair, she is mitzvah observant. I personally spent a Shabbos in her house over three decades ago. Also, for all her work helping women get divorced, she herself has only been married once and still is. She has never been divorced (her husband wouldn’t dare!). Kol Hakavod! I suppose the “label” of left wing Modern Orthodox would fit. But Orthodox she is.

Back to her blog, the subtitle reads: Muscling in on areas where you have no jurisdiction violates civil liberties and makes a mockery of religious authority

This tips us off that she is quite concerned about civil liberties (if you didn’t read the blurb). She claims they have been violated due to encroachment from those with “no jurisdiction”. I find this claim questionable. She adds that it “makes a mockery of religious authority”. This part cannot be denied because she spends the rest of the blog mocking it.

Here is how it opens (emphasis mine - YH):

Last month, right before Tisha B’Av, police summoned Rabbi Dov Haiyun to their offices. In police hands was a decision of the Haifa State Rabbinic Court ordering them to open up a criminal investigation against Rabbi Haiyun — the head of Moriah Congregation, of the Conservative movement. Among other complaints, the court claimed that Haiyun had violated the Marriage Registration Ordinance, when he failed to register a marriage at which he had officiated. According to reports, police “put him in a prisoner transportation vehicle complete with iron bars on the windows, and took him away.”

If you are curious about what were the “other complaints”, it is for officiating at a wedding for an invalid woman. It could have been a suspected eishes ish, non-Jew, or mamzeret – the type of marriage that produces more non-Jews or mamzeirim. Of course, it may have been merely that she was pregnant with or nursing a child from another man which is only Rabbinic and temporary. But it is still forbidden.

Both of these activities (performing the marriage and neglecting to register it), if indeed they were done, are against the law. In other words: criminal. Jailbait.

With this, Dr. Weiss is insisting that the State Rabbinic Court is overstepping its jurisdiction and is very bothered that they choose to answer to a Higher Authority. (I wonder if she eats Hebrew National). 

She then goes on to list a few other incidents where she personally, in one case, and some unknown woman litigant, in another case, were held in contempt by a Beis Din and threatened with punitive measures. In her view, the State Rabbinic courts are overstepping their jurisdiction and evidently, she needed to write this blog post to lament this tragic state of affairs (and to mock the religious authority). 

Incidentally, from what she writes, there is no indication whatsoever that Dr. Weiss knows anything at all about the third incident beyond the one-sided report that she heard from the mouth of the offended woman. (Déjà vu all over again!) No indication at all that she researched the incident and can verify it.

At this stage, Dr. Weiss makes a very bizarre distinction. She writes:

Admittedly, the above situations are not identical. While rabbinic judges theoretically had the authority to hold me and the woman in contempt (we each had been present in their courts), they had no jurisdiction whatsoever over Rabbi Haiyun, who had not appeared before them.

Dr. Mrs. Weiss claims to be lawyer and a PhD (I am neither). A prerequisite of these credentials would be that one should know how to read. She claims that Rabbi Haiyun did not appear before the court. The document seems to say otherwise. (See it HERE) Although it is not 100% clear, the document says that Rabbi Haiyun “admitted [his involvement] as appears in the court protocol” at a court session that took place on July 16, 2018. This seems to indicate that he did indeed appear before the court. If he did not personally appear, he must have at least submitted a tatzhir (affidavit) which is a signed statement subject to perjury or other judicial scrutiny. All told, this is definitely an active case in the Haifa Rabbinical Court. It’s case number 1181464/1 if you are interested.

So the distinction that she admitted to may not be much of a distinction. But, sadly, she missed the more obvious distinction – or, at least, won’t admit to it. And, if she can’t see this distinction, it calls into question her credentials as a lawyer. It is this:

She and her woman friend were censured by the court for contempt. This requires an appearance in court. Rabbi Haiyun, however is not being called out for contempt. He is being called out for alleged criminal activity. And who is allowed to complain to the police about alleged criminal activity? 

Anybody. 

Any citizen has a right to complain to the police about a violation of the law. This is everyone’s jurisdiction. And who should we expect to be the watchdog for this law if not the official body that is charged with seeing that it is upheld?

She continues:

Yet the above situations have this in common: abuse of judicial power. In all of the above, rabbinic judges acted more like police than like judges. Judges adjudicate. Legislators legislate. Police use “legitimate” force to detain and imprison. This is called “separation of powers.” It’s the way democratic states check power to power, ensuring that government officials do not abuse the liberties of citizens who extended those powers to them in the first place.

"acted more like police than like judges." How so?

The Rabbinic court filed a complaint to the police as any citizen, and certainly any judicial body, may. Dr. Weiss may be disturbed at the bossy choice of words בית דין מורה which means Beis Din is instructing (or ordering) the police to investigate. I mean, why couldn't they ask nicely? Yes, it is firm language, but this is the style of a Rabbinic court which, as we noted, has the same authority as the secular court in this department. 

So they requested or “ordered” an investigation. Cool. The police did what they did. The court did not order the police to put anyone in prison or even into “a prisoner transportation vehicle complete with iron bars on the windows”. Just to investigate. We democracy lovers call this “separation of powers”. (Where have I seen this term mentioned recently???)

Incidentally, when she wrote in her lead paragraph “…and took him away” she makes it sound like they took him to some underground torture facility like Guantanamo Bay and he hasn’t been heard from since. I presume they took him no further than to the local police station. I also presume he did not spend the night locked up. 

From all this, it looks to me that Dr. Weiss is overstepping her jurisdiction. 

As the article continues, Dr. Mrs. Weiss gets totally carried away and loses sight of her opening paragraph (perhaps this was her goal). She writes:

Thus, state rabbinic judges, in violation of our personal liberty, have ordered the detention of rabbis and have punished uppity litigants by putting them in jail. In violation of our freedom of contract, they can force attorneys to step down from their cases

A few comments:

“in violation of our personal liberty” – Dr. Weiss is somewhat delusional. Clearly, Dr. Weiss sings HaTikva and takes the line about להיות עם חפשי  – to be a free nation – way too literally. Every person has their perception of “personal liberty” and she certainly has hers, but the only ones that count are those that are enshrined in the law. When it comes to marriage law, the state has deferred to the Rabbanut which does not exactly support every leftist’s idea of personal liberties. The personal liberties which she would like to be protected under law, unfortunately are not. They only exist in her PhD head. So if they are not protected, then they are not being violated.

“have ordered the detention…” – Not so! Dr. Mrs. Weiss is blatantly and knowingly stating a falsehood. I have read the order. You can read it, too (right HERE). What it says is what Dr. Mrs. Weiss herself said in her lead paragraph, the Haifa Rabbinic court ordered the police “to open up a criminal investigation against Rabbi Haiyun”. They did not order him to be detained. Of course, in many police investigations the person being investigated is detained for questioning for a few hours. That’s how they investigate. But they are free to investigate without detaining. The order was for investigation, not for detention.

I think it is well beneath the dignity of somebody like Dr. Mrs. Susan Weiss to twist the truth like a standard yellow journalist. Well, perhaps not. Perhaps she is just reaffirming her credentials as a lawyer.

“…of rabbis…” – This is another distortion of the truth for propaganda purposes. The implication of her generalism “detention of rabbis” is used as if to bemoan a sacrilege of persecuting holy pious “men of the cloth” who should have some kind of divine diplomatic immunity. From where I sit, and even in the eyes of secular Israelis, the term “Conservative Rabbi” is an [oxy]moron. 

Dr. Weiss is probably definitely old enough to know the 1960s joke about My Son, the Captain (see joke HERE). The punchline of the joke is:

Listen, sonny. I don’t have to tell you, by Mama you’re a captain, by me you’re a captain, and by you you’re a captain. But by a captain you’re no captain.

This certainly applies to “Rabbi” Haiyun: By Rabbi Haiyun he is a Rabbi, by Dr. Weiss he is a Rabbi, by the police he’s a Rabbi, by his followers he is a Rabbi, even by me he can be a Rabbi… BUT by a Rabbi, he is no Rabbi. By the dayanim of the Rabbinic Court in Haifa (who aren’t really natives of Haifa but are from Yerushalayim and Bnei Brak and they know their stuff), this guy is no Rabbi.

After a few more paragraphs where Dr. Weiss digresses towards other “sins” of the Rabbinical courts, she gets down to what is really eating at her. She closes:

All this, and there are many more examples, because, as mentioned, Israeli state religious functionaries answer to a Higher Authority. In a theocracy, you may vote, but God legislates, judges, and executes.

At the end of the day (and the beginning of the next), Dr. Mrs. Susan Weiss PhD is shooting the messenger. If she has a problem with the Higher Authority, why doesn't she take it up directly with the Higher Authority? Why go beating around the [burning] bush? It doesn't seem like she has a whole lot of respect for the Higher Authority.


She is clearly an advocate for uninhibited civil liberties. Even HaEzer does not promote such civil liberties. The Beis Din upholds Even HaEzer. This is their job. They do it, and do it well. Regardless of whether or not “civil liberties” were violated, in the view of the Beis Din, the law was certainly violated. Both the law and Even HaEzer may not be a friend to “civil liberties” but they are on the books – not the “civil liberties”. 


Liberal minded people who don’t value these laws think that reporting violations like this to the police is nitpicking. But in the world of legalistics, there is no such thing as undermining any law. And for a veteran lawyer such as Dr. Weiss PhD to do just that is highly unprofessional. 

We all know there are two types of lawyers: one whose goal is to help people stay within the law and one whose goal is to enable people to circumvent the law. It is shameful to see a lawyer make a mockery of the law. It is blasphemous to see a shomer Shabbos Jew make a mockery of the Higher Authority.

On Rosh HaShannah we all daven that HKBH should be our King. He should rule over us and the entire world and we should live by His rules. We pray for this because it is what is best for us and the world. In short, we pray that the world should become a theocracy.

So, I wonder if Dr. Mrs. Susan Weiss PhD goes to shul on Rosh Hashannah and if her machzor says what mine does. And, if so, does she really say it? And if she does, what is she thinking?

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

This is it for 5778. Kesiva v’Chesiva Tova to all my friends, relatives, and readers!

תכלה שנה וקללותיה, תחל שנה וברכותיה!

The Strange Arm of the Law

About two months ago I had a very minor car accident wherein I basically relieved a 2015 Mazda of its right side mirror. Yes, of course, I got out of the car and we exchanged the relevant information. And I didn’t say, “I’m sorry. It was all my fault” although, it very likely was. (I was backing up!) I estimated the damage to be relatively low, somewhere between 500-1000 shekels.

A day or two later I was contacted by the “owner” of the car (the driver’s mother) and I told her that this seems to me to be a low priced damage which is certainly way beneath my deductible, so I would prefer to take care of it between ourselves. She said she cannot accommodate me because it is a leased car.

Fair enough.

All was quiet for quite some time. Then, about six weeks later I finally received a letter from the leasing company demanding payment for damage. Beneath that paragraph was a line that said:

Description of damage:

1.   Damage         1459 NIS

Total owed:  1459 NIS

Well, this amount exceeded my personal “estimate” and, in addition, there was no itemized description of the damage whatsoever. It did not tell me what this sum is based on. How do I know they didn’t replace the brake pads in the process?

While I do take responsibility for this damage, I am not in any hurry to pay it. For sure, I was in no mood to pay NIS 1459 which seemed to me an exorbitant sum for just a mirror. As such, I fired a letter off to the leasing company that I feel this sum is exaggerated and that their “Description of Damage” was not descriptive enough. They must furnish me with an appraiser’s report and/or the paperwork detailing what work was done and the costs of parts and labor. I ended off that for lack of these papers I am not willing to pay more than NIS 600 for this damage.

After patting myself on the back for my brilliant stalling tactic, I sat back to see what would happen.

It didn’t take more than a day or two that I received an email with a note and an attachment. The attachment was a very authentic looking copy of a very authentic looking invoice from a very authentic looking car repair shop in Talpiot. The invoice itemized the mirror at NIS 1389.40 plus labor at NIS 70 (very reasonable labor BTW) for a total of NIS 1459.40. It did not include a report from an official appraiser.

The note said, “Attached is the invoice for the repair of the mirror.” And it ended with these words: “Your request for a settlement (pshara) is denied.”

I read the note and looked at the invoice.  Even though I still thought the part was exorbitantly priced, I had to appreciate that they discounted me 40 agurot. All told, I said to myself, “My goose is cooked. I suppose I am going to have to fork over NIS 1459”. 

NIS 1459 (just a bit over USD $400) is not easily missed in my meager budget and I am all for more stalling. To accomplish this, I immediately sent them a return email which said, “Thank you very much for the information. The price still appears to be exaggerated. I will check into this and get back to you.”

I let a week slide by. I wasn’t even sure it was worthwhile for me to check out the price. Everything looked real, so what would I achieve?  Still, I decided to show the invoice to Sholom, a body shop man in Givat Shaul that I used previously.

Oh boy, am I ever glad I did!

I asked Sholom if this price is realistic and I pessimistically expected him to confirm it as so. Sholom looked at the invoice and asked me, “What year is this car?” The answer is 2015. “When was the accident?” April 2018.

Sholom proceeded to tell me that they obviously used a genuine original part to repair the car and this is what parts like this cost. But then he said that the law says that if someone’s car is damaged, the owner is only entitled to use original parts to fix his car for up to two years from the year of manufacture.  After two years, the car is classified as a used car and any part of the car that was damaged in an accident is considered a used part. As such, the liable party only needs to shoulder the cost of a generic or used part for the repairs.

I asked him how much is a used part valued at? He answered that the appraisal protocol values non-original parts at 50% of the value of a genuine part. There may be an exception if the part is totally unavailable non-original but this needs the approval of the appraiser. As I wrote, there was no appraisal report included in the paperwork.

This was music to my ears!

I immediately went home and fired off a letter to the leasing company wherein I related everything Sholom told me. I told them I am prepared to pay 50% for the part – NIS 695 – plus the NIS 70 for labor for a total of NIS 765 and not a grush more. I ended the letter saying, “Your denial of my request for a settlement is denied!”

I expected not to wait more than another day or two to receive a notice that would either refute my law facts and demand full price or that would concede the facts and agree to close on NIS 765. But all this was almost two weeks ago and, so far, I haven’t heard a peep from them. End of story is that, to date, I haven’t even paid a penny for the accident and who knows if it won’t get lost in the twilight zone? What’s more, I am very confident that when I ever will pay it, it will not be for more than NIS 765.

And what is the moral of this tale?

It pays to know the law.

It could save you a bundle of gelt and heartache. Knowledge is power and knowing one’s rights and obligations by law will always give one a racer’s edge during runtime.

Probably, we all know this valuable piece of advice. For sure, anybody in any line of work knows the laws that apply to his day to day activities. But folks don’t know so much about things that are not everyday occurrences. And they don’t appreciate how much it can come in handy when they least expect it; hence, the lesson that I almost didn’t learn about car repairs. And I only learned it in the nick of time.

Now, many people think they know the laws about certain matters. But they are not scrupulous enough. This is a terrible trap. They may think they are “covered” by the law when they are really not – or that the other guy is not covered when he really is. And this can be needlessly costly. One needs to know the law well, with all its restrictions, exceptions and limitations. We know that nobody knows criminal law better than a professional criminal. An amateur criminal gets busted. So...Take a tip from Bill Sykes. He can whip what he likes…

Of course, this rule applies to any code of laws – secular or Halachic. For we who live in two worlds, we don’t always know when a dispute is going to go Halachic or secular.

Issues and disputes tend to catch us off guard. We can’t be expected to know all laws and Halachos of a mostly irrelevant topic. But a wise person at least knows that now that he is facing an unusual situation, it pays to speak with the experts about the laws and Halachos that apply. He is in for quite a few surprises. Some may be pleasant and others not. But it will help him tremendously to know. And this is why wise people will consult with lawyers, toanim, or dayanim when an unfamiliar situation comes up.

In some cases the advice costs money. This can be tricky and calls for a cost/benefit analysis to determine if the money at stake is worth the investment. If it is, it’s a good idea to shell it out. 

Thus far, in this post, I mainly discussed secular law. The story about the car repair involved secular law and it took me by surprise. I wrote a post a few months back about the laws of extradition. I’ve had readers complaining about misinterpretation and I even put in a few updates, but, by and large, we found a few surprises. The law is not as “smooth” as many of us would like it to be.

Likewise, as a writer on the Internet, aside from the journalistic ethics (which are not laws), it helps to know some of the laws about copyright infringement, good faith criticism, defamation and libel. I have been looking into some of these laws lately because I have been victimized by these.  Once again, some pleasant surprises and some not so pleasant.

Of course, the mandate of One Above and Seven Below and of my blog is to present the Halachic viewpoint. We are Halachic Jews after all (aren’t we?) and I have discussed numerous Halachic topics over the years. In order to do so responsibly, I need to research all of these topics at length.

Moreover, in my ongoing training as a Toen Rabbani (still not finished) I have had to learn a tremendous amount of Choshen Mishpat and Even HaEzer and, believe me, these are where the surprises are.

Consider the following.

Chaim lives in an average size apartment in Har Nof which he owns. His family is growing and he really would like bigger living quarters and he even has a nest egg of savings which he is willing to use for this purpose. He knows he can find a suitable solution by selling his apartment and moving to another less expensive location, but he loves his location and his building and neighbors. Everything is great right where he is except he needs more space.

One day his next door neighbor informs him out of the blue that he is moving. He was only renting and the landlord did not want to extend his lease. The landlord needed cash so he is now selling the apartment to a young family making Aliya from France.

Chaim is livid! If only he knew. Nobody told him! He would have been happy to offer on this adjacent apartment and combine it with his and it would be the ideal solution to his problem. Now, this potential opportunity evaporated to air and he is no closer to his dream than yesterday.

Well, Chaim may have been daydreaming when they were learning Bava Basra in Yeshiva, but if he paid attention, he may be aware that in Halacha there is a law of bar metzra. The law of bar metzra says that if one person is selling real estate, the one who owns adjacent real estate has priority to buy it as long as all other details are equal – at least the same price, at least the same terms, cash for cash, etc.

Even if the original seller and buyer have already gone to contract, the bar metzra can rush to Beis Din and petition them to nullify the contract and order the seller to sell to him. All this is in Choshen Mishpat 175. It’s worthwhile to know it.

So now let’s say Chaim got tipped off about his rights and runs to BD and makes his case.

Good for him.

However, Choshen Mishpat 175 is a very long siman. It comprises 63 articles and they all count. So, let’s say the couple from France doesn’t feel like starting from scratch and looking for a new place. The French husband goes over the siman and stumbles across article 47. Article 47 states:

If one sells to a woman or to young orphans, there is no counter claim of bar metzra…

The Rema gets a bit tougher:

If she bought it together with her husband, the bar metzra cannot even remove the husband.

Whoa! Mr. Frenchman is buying together with his wife. Looks like bar metzra doesn't count.

Poor Chaim. His dream is back in the clouds. He will miss his own bar metzra. Chaim is lost!

But wait! Chaim gets persistent and decides to really go over this siman. Or, he gets a hold of a toen who knows his stuff. Chaim introduces himself to the Rema at the end of article 49:

This is all if the buyer is from this city and cannot find a house anywhere else, but, if not so, the neighbor has priority over everyone else!

Ahah! The couple from France do not yet have a foothold in Har Nof. There is no reason they cannot search in Bayit VeGan (more French speakers there anyway). Chaim is back in business!

In truth, not all dayanim will look at these offsetting Halachos the same way, so it is not certain who will win this fight, but the point is, it pays to know the rules and know Choshen Mishpat 175.

Incidentally, once we are in the neighborhood (get it?), a few months back one of my sons WhatApped me about a scandalous occurrence in Kiryat Moshe (of all places) where, apparently, a dati person sold his apartment to an Arab because he got a great price. Naturally, all of the neighbors and Chardalniks (this is Merkaz HaRav territory) were up in arms with rage. But what could they do about it?

Well, some bright Talmid Chacham remembered Choshen Mishpat 175:40 which says:

If one sells or rents his property to a non-Jew, we put him in a shamta until he accepts upon himself all incidental damage that may arise from the non-Jew…and if a damage arises in the lifetime of the seller (and then he passes), his son must pay the damages from the seller’s estate.

Even this is not that simple. The very next article (175:41) gives a proviso:

This only applies if he is capable of selling or renting the property to a Jew for the same price but he is not obligated to sell it to the Jew for less.

Case closed? Not yet. This article continues:

But if it appears that the non-Jew is buying in order to disrupt the Jew’s settlement, it is all according to how the dayan views it.

Incidentally, all of this is meant to apply only outside of Eretz Yisrael because in Eretz Yisrael, it is prohibited to sell property to a non-Jew under all circumstances because of Lo Techanem (Devarim 7:2). Except that Lo Techanem is hard to enforce in today’s Eretz Yisrael. But it could be that trhe proviso of Article 41 that the seller does not need to sell for less will not apply in Eretz Yisrael because of Lo Techanem.

Anyway, I have no idea what became of that incident in Kiryat Moshe. But the bottom line is:

We all need to know the rules. It can save us a bundle of money and heartache.

This is what I had in mind when I first wrote my book and described the distinction between the “consumer” (amateur) and the “provider” (professional).

Over the years, I have written about many important Halachic issues and my purpose was to reveal some of the surprises to the “consumers” because it is so important to know the rules. Here are some examples:

·       Petzuah Daka – Anyone who needs prostrate surgery needs to get Rabbinic guidance (although in most cases, the standard surgery is permitted). Not only is it absolutely forbidden to undergo a vasectomy, but if one does so, he cannot remain married.

In my courses as a Toen Rabbani I am subscribed to an email group that sends us all of the latest rulings from the Beit Din HaRabbani. This covers all aspects of Even Ezer.

One recent ruling involved a woman who wanted to divorce her husband and to ensure this, she claimed he underwent a vasectomy in the US. The husband did not deny it but said he is willing to undergo a procedure for reversal. The Beis Din ruled that we do not look for the future and right now he is a Petzuah daka. He was given a ruling of Kofim LeGaresh which is the highest level and he can be forced with corporal punishment to divorce his wife.

·       Prenups – It is very difficult for a man to conditionally waive his rights to his wife’s earnings in advance. Either he does it unconditionally or it is not waived.

·       Molestation and Kehuna – As more and more incidents of this crisis arise in well-established Jewish families (R”L) and we are all concerned about the emotional welfare of the abused child, we cannot overlook the Halachic angle. If a young girl was molested with true sexual contact – front or back – by a father, brother, or non-Jew, she is forbidden to a Kohen. Any contact below the waste must be investigated and brought to a Rav.

·       Malshinus – These are the Halachos of mesira and rodef that I devoted so many posts to. The Halachos are right there where I say they are and even so, so many Jews cannot accept them.

·       Extraditing a Jew – This was one of the biggest chiddushim.  A Jew cannot be extradited outside of Eretz Yisrael even in our times of galus. It’s right there in Yoreh Deah 267:85. I suppose some prejudiced people can argue that it doesn’t apply to a regular Jew, only a slave, but it’s very hard to justify such a viewpoint.

I have one more topic to discuss.

I am studying to be a Toen Rabbani. In case you do not know what a Toen Rabbani is, he is a Halachic advocate. Just like it is a lawyer’s job to advise his clients of the laws that pertain to his case, and to argue before the judge to interpret the laws to the benefit of his client, a Toen Rabbani does the same in Beis Din when the code of laws in question is the Shulchan Aruch. The prime area where a Toen is needed is in the area of family law – shalom bayis problems and divorce. Especially because most of the people in Eretz Yisrael that show up to a Beis Din for family issues are secular Jews who do not know the first thing about Halacha. In Beis Din they will learn a bit about the Halacha for the very first time.

And they will be very surprised.

But sadly, even quite a few of those who are versed in Halacha show up to Beis Din HaRabbani for shalom bayis problems. And it’s heart-rending. The interesting thing is that we are now discussing people who know day to day Halacha. They know enough Halacha to keep Kosher and Shabbos, to daven and make brachos, and how and when to use the mikveh.

These topics are in Yoreh Deah and Orach Chaim. The sad thing is that they do not know much about Even HaEzer. Sure they learned a few prakim in Kesubos and Gittin when they were in yeshiva, but by the time these Halachos get into Even HaEzer they look a lot different.

These are learned people and, when they set out for Beis Din, they think they know what’s in store. But as I said, one needs to know the rules with all of the details. And when they get to Beis Din, they learn some rules for the very first time. Rules they should have known before. And if they would have known these rules up front, maybe they wouldn’t have to go to Beis Din at all and learn them when it’s a bit too late.

Here’s a true story.

A husband and wife were at loggerheads and were headed for divorce. In the interim they were together in one place talking to a counselor by phone. At one point, the husband was on the phone and telling the counselor his version of whatever. The wife wasn’t happy with what the husband was saying so she pulled the phone out of his hand while he was in mid-sentence. The husband was obviously quite irritated and angrily grabbed the phone right back.

Shortly after this incident, the wife related this incident to her lawyer (it may have been an inept toen). He told her that she has a case for domestic violence and she should immediately file a complaint by the police and request a tzav harchaka (restraining order). She did as she was instructed.

When the story got to Beis Din and BD could figure out that this complaint to the police was ungrounded, they slapped her with moredes and she lost all rights to spousal support and to her kesuba.

Well, maybe she can sue her lawyer for malpractice and get it back.

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 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.

I haven’t completed the Toen Rabbani course yet, and even when I will, IY”H, I am really not too eager to take on the job. It’s a very messy profession. Please, I don’t want your business. 

Learn the rules up front, boys and girls. Trust me, you don’t want to pay me big shekels to spring on you surprises.