Volume 19 Number 96
Produced: Wed Jun 7 23:44:55 1995
Subjects Discussed In This Issue:
Betrothal of Minor Daughter (2)
[Aleeza Esther Berger, Avi Feldblum]
Betrothal of Minors: Takana proposal
[Mottel Gutnick]
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From: Aleeza Esther Berger <aeb21@...>
Date: Wed, 7 Jun 1995 20:59:25 -0400 (EDT)
Subject: Betrothal of Minor Daughter
I deleted the post by mistake, but Eliyahu Teitz wrote that even though
the gemara in Kiddushin prohibits betrothing a minor daughter ("assur"),
Tosafot's statement that today (i.e. in Tosafot's time) it is the custom
to do it because of unstable economic conditions, clearly indicates that
"assur" in the gemara was not taken as the halakha. The implication (or
maybe Eliyahu was explicit about it? I don't remember) is that the
gemara's statement has no halakhic weight because of the later custom.
I am not so sure that the gemara should be assigned so little weight.
Another way to rule today, in light of the gemara, is to say that such
betrothals only take effect if (a) the conditions specified by Tosafot
or the Rama exist (the Rama's other condition being that a suitable
groom could not be found later - actually the Rama got this from an
earlier source, but I forgot who), and (b) the society's custom is to do
these betrothals. Barring (a) and (b), the gemara's "assur" still
holds.
Along these lines, the Arukh haShulchan rules that "today" (relatively
contemporary - early 20th century Western Europe) it is not "our custom"
to betroth minor daughters, and supports his disapproval of the practice
with the gemara's "assur". I.e., today's societal custom holds equal
weight with Tosafot's custom.
It goes without saying that this despicable father does not fulfil the
conditions in (a), which basically are that the father does it with his
daughter's (economic or social) welfare in mind.
Arukh haShulchan says that the only time a man could betroth his minor
daughter is if she agrees to do it ("nitratset"). That seems to be
picking up on one interpretation of the gemara (e.g. Bayit Hadash) that
a minor can agree to something like that. The other (more
"pshat")(straightforward) interpretation of the gemara is that by
definition a minor cannot consent - you must wait until she "grows up
[tigdal] and says 'I want Ploni (John Doe)' "). Under that
interpretation, and keeping in mind that today's custom is not do so
such betrothals, the whole thing could be dismissed as a non-event. Even
using the interpretation that a minor can consent, clearly in the
current case no such condition has been met.
Aliza Berger
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From: Avi Feldblum <feldblum>
Date: Wed, 7 Jun 1995 22:30:49 -0400
Subject: Re: Betrothal of Minor Daughter
Aleeza Esther Berger writes:
> Another way to rule today, in light of the gemara, is to say that such
> betrothals only take effect if (a) the conditions specified by Tosafot
> or the Rama exist (the Rama's other condition being that a suitable
> groom could not be found later - actually the Rama got this from an
> earlier source, but I forgot who), and (b) the society's custom is to do
> these betrothals. Barring (a) and (b), the gemara's "assur" still
> holds.
A critical point here is the possible distinction between an action
being "assur" and saying that the outcome of the action does not take
effect. My understanding of the Gemarah and Shulchan Aruch is that there
is a rabbinic prohibition on the father from accepting kedushin for his
minor daughter. But if he goes ahead and does accept kedushin, the
marriage is a valid marriage, the father has just violated an issur. In
other words this on the Rabbinic level is more accurately compared to a
Cohen marrying a divorcee - the marriage is in effect, but the Cohen has
violated a 'lav', than a brother marrying a sister - the act of kedushin
between a brother and sister has no halakhic meaning at all and there is
no marriage here.
Avi Feldblum
<mljewish@...> or feldblum@cnj.digex.net
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From: Mottel Gutnick <MOTTEL@...>
Date: Thu, 8 Jun 1995 04:54:47 GMT+1000
Subject: Betrothal of Minors: Takana proposal
A proposal for a Halachic solution to child Agunot:
There is a well established general principle in Halacha, first laid
down in the Talmud, that, where the situation warranted it, the Rabbis
arrogated to themselves the power to "uproot" even a Biblical law, where
there was a moral or social imperative to do so. Rabbi Eliezer
Berkovitz, in his book "Not in Heaven; The Nature and Function of
Halakha", discusses many examples from the Talmud of this principle in
action, including the one I shall describe below, which bears directly
on the case of child agunot whose own fathers have intentionally and
maliciously placed them in this position in an attempt to use them as
weapons in their divorce disputes with their (ex) wives.
My library is still in boxes and most of the following is from memory,
so I am not including references in the following. Perhaps someone on
the list who wishes to take up the discussion of this proposal will
furnish the references.
Under "raw" Biblical law (as unmodified by later Rabbinic qualification)
a man had absolute rights over the granting of a Get. He could also,
once a Get was written for his wife, but before it took effect by being
delivered to her, cancel the Get by a declaration invalidating it.
If a husband appointed a messenger to deliver a Get to his wife who
lives in a distant location, and then, before the messenger had time to
reach his destination, the husband appears before a Beth Din or before
witnesses and announces that he is cancelling the Get, it becomes null
and void. (Actually, it may be that the cancellation applies not to the
Get itself but is effected by the husband withdrawing his messenger's
authority to act as his agent in delivering the Get to the wife. This
distinction is, however, immaterial to the discussion.)
Furthermore, the cancellation takes effect even if the husband had not
communicated the news of the cancellation to the messenger or to his
wife.
What would happen then, if the agent, unaware of the cancellation,
delivered the Get, and the wife, believing it to be valid, remarried on
the strength of it. Technically she would be committing adultery since
the Get is invalid and she is still legally married to her first
husband.
Foreseeing the terrible consequences of such a situation, Rabban Gamliel
Hazaken (the Elder), head of the Sanhedrin at that time (1st Century,
CE), enacted a Takana (decree) forbidding cancellation of a Get in the
absence of the messenger or the wife. The reason for this enactment was
"mishum tikkun ha'olam" (lit: "to repair the world"), that is, for the
betterment of society.
But what did the law have to say in the case of a man who, in defiance
of Rabban Gamliel's Takana, went ahead and cancelled a Get in the above
manner? (Remember: this is not necessarily a case where the husband does
this with mischievous intent, he may have simply had a change of heart
about ending the marriage.) There is a debate about this between later
Tannaim (teachers of the Mishnaic period). Rebbi (the Talmudic title of
Rabbi Yehuda Hanassi) says that although the husband acted in violation
of the Takana, his actions are, nevertheless, valid according to
original Biblical law, and therefore the Get is legally cancelled.
Rabban Gamliel II, however, ruled that the cancellation was ineffectual
and the Get remained a valid Get, because otherwise the Takana would
have no teeth. ("Otherwise what authority would the Beth Din have?")
Rabban Gamliel II's ruling, giving teeth to this Takana, gave rise to a
question in the Gemara: According to Biblical law (which allowed such a
cancellation) this Get is really invalid. Do the Rabbis now have the
power, simply in order to "arm" their Takanot with teeth, to allow a
woman to remarry on the strength of what, Biblically speaking, is a
worthless piece of paper and not a valid Get? The Gemara answers: Yes!
the Rabbis do have such far reaching authority (even to override
Biblical law) in such matters because there is a legal presumption that
all marriages are entered into subject to the law as laid down by the
Rabbis. ("Kol hamekadesh adaita d'rabbanan mekadesh".) (Rashi explains
that this is the meaning behind the formula recited by the groom to the
bride: "You are sanctified unto me ... according to the law of Moses
and Israel - i.e. subject, not only to the law of Moses, but also to
subsequent Rabbinic law.)
The reasoning behind this explanation of the Gemara is that the Rabbis
exercise their authority by voiding the marriage ab initio. Since the
husband acted against the "law of Israel", the marriage loses the
sanction of the Rabbis, and the Rabbis annul the marriage
retrospectively. No real formal annulment is necessary, this is simply
the formalistic argument justifying how the Rabbis can uphold the
validity of a Get, which, by Biblical law, has been invalidated: Since
the very marriage has been invalidated, the validity of the Get under
Biblical law is no longer an issue.
The Tosafot (additional commentaries on the Talmud, after Rashi) take
this reasoning to its logical conclusion and point out that if this is
indeed the reasoning underpinning the Rabbis' power to declare such a
Get valid (i.e. that the marriage is annulled ab initio), then this
opens up a loophole in the law of Mamzerut (illegitimacy). "If so, we
can clear Mamzerim [of their illegitimate status]". If a married woman
commits adultery, and children ensue from the forbidden union, such
children are Mamzerim. But what if, now, the husband sends his wife a
Get, then, before it arrives, he cancels it? The cancellation has the
effect (due to the Takana of Gamliel I) of annulling his marriage! Since
the marriage was no marriage, the adultery was no adultery! That union,
while it may have been an extra-marital one, was not, it transpires, an
adulterous one and therefore the issue of that union are no longer to be
regarded as Mamzerim. (Illegitimacy, in Jewish law, derives only from
an adulterous or incestuous union, it does not apply to children born
out of wedlock if the parents were not otherwise forbidden to each
other.)
In Israel, marriage of a minor is prohibited both by state legislation
and by the Chief Rabbinate. A Takana was adopted by the National
Rabbinical Conference held in Jerusalem in 1950 forbidding a man to
contract a marriage with a girl under the age of 16 and forbidding her
father to give her in marriage.
I doubt very much whether this Takana would apply (or was even intended
to apply) outside of Israel. I only cite it as a precedent which may
make it easier to lobby for the adoption of such a Takana by Rabbinical
authorities in the U.S. (This problem does not exist, as far as I know,
in Australia, but the Rabbinical authorities here would almost certainly
follow suit if such a Takana was adopted in the U.S. and widely
supported by various Rabbinical authorities there.) I can't imagine what
justification Rabbis could offer for opposing such a Takana,
particularly in light of the Israeli precedent.
My source for this information about the Israeli Takana is the
Encyclopaedia Judaica (v 5, p 423). The author of that article "Child
Marriage" goes on to say that
However, this prohibition does not nullify a marriage that has
nonetheless been celebrated in defiance of it, since in Jewish law
such a marriage may be valid.
Without a doubt, that Takana was not instituted with a view to
combatting the intentional and malicious creation of child Agunot. It
was aimed, rather, at stamping out the practice amongst certain
immigrant communities (notably, those from Yemen.) We may safely assume
therefore that those Rabbis felt no need to "arm" their Takana with the
sort of teeth that Rabban Gamliel II gave to his ancestor's Takana.
In our case however, where the "tikun ha'olam" (social) imperative is
every bit as great, and perhaps more so, than the one which motivated
Rabban Gamliel Hazaken, there are good grounds for arguing that the
Rabbis have every right to assert the necessary authority over child
marriages by virtue of the authority granted them over marriage in
general by the Talmudic defence of Rabban Gamliel II's ruling.
If this reasoning is not, in itself, compelling enough, it may be
necessary to find precedents in which later Rabbis (after the Tosafot)
have asserted such authority in practice, before the Rabbis of today
will be able to muster the courage to follow suit. I have some
information which, whilst not an actual precedent, is, nevertheless, an
indication that the above argument has some merit, but I would rather
leave that until some other time, after this suggestion has, hopefully,
been more fully aired and commented on.
The arguments for invalidating the witnesses, and, hence, the ceremony
itself, have some merit (and, BTW, apply just as well whether the
witnesses are real or merely asserted), but I think there are too many
loopholes in it. It seems to me that the line of research that will be
the most profitable in trying to formulate a halachic solution to this
painful problem is to try to find the kind of precedents that I have
suggested, or at least to develop this proposal on the basis of Svara
alone (legalistic reasoning) if there are no such precedents to be
found.
What do you think, Chana?
One last thing. I am a newcomer to this list. I only subscribed just
before Shavuot after seeing a reference on another list to the Halachic
debate on this matter that has been getting under way here. After
retrieving the relevant digests from the archives, I found the task of
threading the various posts on this subject (so as to collect them
together in one file) unnecessarily difficult because of the varying
headings used in the subject lines. There have been no fewer than 22
variations! (e.g., Marriage of a Minor Daughter, Minor Marriages, Child
Brides, Atrocities in the Get Wars, Witnesses for Marriage.)
Please, could we all simplify things in future (and perhaps the
moderator could help by enforcing this, but let's make it easy on him by
doing our bit) by sticking to just one form of the topic in the
subject-line. I suggest, for this topic, "Betrothal of Minors". People
originating a new discussion should be very careful to choose a
meaningful, appropriate, and concise heading in the subject-line, which
everyone else should stick to. For follow-up posts dealing only with
some sub-aspect of a subject, there is no reason why the subject line
could not be of the form, say, of:
Betrothal of Minors: Witnesses.
As long as the first part of the subject-line is consistent, different
sub- topics can be included without making the postings difficult to
thread.
Mottel Gutnick, Melbourne, Australia.
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End of Volume 19 Issue 96
