Volume 29 Number 72
Produced: Wed Sep 1 12:16:43 US/Eastern 1999
Subjects Discussed In This Issue:
Alternatives to Kiddushin (3)
[Janet Rosenbaum, Joseph Tabory, Eli Turkel]
Cutting Boys' Hair from Age 3
[Neil Saffer]
Eye for and Eye
[Wendy Baker]
High Priest in Holy of Holies
[Yisrael Medad]
Kiddushin, Kinyan, and the Agunah Problem
[Avi Feldblum]
Kinyan = ownership? (3)
[Carl M. Sherer, Janet Rosenbaum, Oren Popper]
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From: Janet Rosenbaum <jerosenb@...>
Date: Sat, 28 Aug 1999 23:36:26 -0400 (EDT)
Subject: Re: Alternatives to Kiddushin
To clarify: I know that bi'ah can effect kiddushin. I just meant to ask
whether the intents of the parties that this relationship was pilagesh
and not kiddushin would be sufficient not to require a get.
Janet
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From: Joseph Tabory <taborj@...>
Date: Sun, 29 Aug 1999 16:31:30 +0000
Subject: Re: Alternatives to Kiddushin
I think that there is a general consensus of poskim that if a couple does
not want to be married according to halakhah, their living together as man
and wife will not create a halakhic relationship. This has been used by
authorities in freeing women from their husbands without a get. It is not
totally analagous, but very few people will argue that a reform wedding
creates a halakhic relationship or that such a relationship is created due
to the couple living together after the ceremony. Where couples did not
have the option of a religious ceremony, such as in Russia, it has been
argued that they actually did want to have a Jewish marriage and so there
marriage may be considered halakhically valid. But it they do not want a
halalkhic relationship, I don't think it can be forced upon them
Joseph Tabory
Department of Talmud, Bar Ilan University, Ramat Gan, 59200, Israel
tel. at home: (972) 2-6519575
email: mailto:<taborj@...>
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From: Eli Turkel <turkel@...>
Date: Sun, 29 Aug 1999 10:58:41 +0300 (IDT)
Subject: Alternatives to Kiddushin
In the latest issue of Tradition there is an article by Rabbi Bleich
"Can There be marriage without marriage?"
His basic conclusion is that any status that allows a couple to live
together also requires a get.
Eli Turkel
[I think that this article is in part at least a response to my fathers
article referenced in my submission below. As I do not currently get
Tradition (I need to subscribe again), if anyone in the US has a copy of
the issue referenced above who would be willing to photocopy and mail it
to me, I would appreciate it. Also, if they have a page that says how to
subscribe, please copy that as well. Thanks in advance. Avi Feldblum,
Mod.]
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From: Neil Saffer <neilsaff@...>
Date: Sun, 29 Aug 1999 02:33:30 +0200
Subject: Cutting Boys' Hair from Age 3
In South Africa, and other parts of the world, it is customary to allow
a boy's hair to grow, uncut, until the age of 3. At this time, it is cut
in a small and happy ceremony, where the boy is presented with his first
pair of tzitzis and kippah. While I have heard some lovely explanations
for this and view it as a chinuch landmark in the child's life, I have
never seen a source for this minhag. Does anyone know where it
originated and have a source for its continued practise? Any other
insights into this minhag would be greatly appreciated (we are cutting
my son's hair, B"H, in a week and I would love to have something half
decent to say :-) )
Kol Tov,
Neil Saffer
<neils@...>; Sunny South Africa
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From: Wendy Baker <wbaker@...>
Subject: Eye for and Eye
Something that seems missing in this discussion is the fact of the
importance of eye for an eye-etc. as a limiting factor in what you can
get for an injury. I think of it as no more than an eye for an eye etc.
This serves as a limiter and a equalizer of all humanity. A rich man's
eye is not worth more than a poor man's eye. Even if monetary payment
was the intent, perhaps for all but life for a life, this concept rules
the maximum amount. I think that this interpretation fits the simple
pshat of the pasuk. What a lovely idea in a time of harsh punishments
and general inequality in the ancient world surrounding the Israelites.
Wendy Baker
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From: Yisrael Medad <isrmedia@...>
Date: Sun, 29 Aug 1999 22:15:42 +0300
Subject: High Priest in Holy of Holies
At 01:52 29/08/99 Jonathan Marvin <jonx@...> asked:
>Does anyone know the source for the oft-repeated dictum that as the
>office of high priest became more corrupt / sadducidic, a rope would be
>tied around the high priest before he entered the kodesh hakodashim on
>Yom Kippur so he could be pulled out if he died during the avodah?
According to Rav Ariel's Yom Kippur Machzor HaMikdash, p. 279, the
source for the rope-tie relates to all High Priests with no conditions
attached (sorry for the pun) is Zohar Achrei Mot, 67, a and Zohar Emor
102 a that if he dies he can be pulled out as no one else can go in.
He notes that there is a problem as the rope would present a probelm of
chatzitzah and would be an extra garment - all prohibited. And Halacha
is not decided by the Torat HaNistar.
Yoma 19B does note the death of a Tzaduki who placed the kitoret on the
coals according to his custom and an Angel bopped him one on the face.
But that the death was on the way out already.
He brings the Genara in Yoma 53B from which one can presume that the
High Priest who took too long at prayer had his fellow priests come in
after him. But if he had a rope tied tro his leg, why did they need to
come in? why not just yank? So there wasn't a rope is the conclusion.
Rav Ariel notes that the area between the Curtains was dark and a rope
could possibly trip him up.
His bottom line: it doesn't fit; it's problematic; the Zohar source is
one we usually don't use for Halacha as no one else of the Rishonim
mention it.
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From: Avi Feldblum <mljewish@...>
Date: Wed, 1 Sep 1999 11:53:09 -0400 (EDT)
Subject: Kiddushin, Kinyan, and the Agunah Problem
There have been a few postings recently on the questions related to Kinyan
(the legal forms for effecting binding obligations), kiddushin (the
halachic legal bond between husband and wife) and whether they impact the
Aguna (an abandoned wife, who cannot remarry, because she is neither
divorced nor is it known whether her husband has died) issue.
It is somewhat interesting for me that the topic has come back into
discussion at this time. Some of the discussion is likely indirectly, at
least, the result of a proposal my father has made that was published in
hebrew in a Tel Aviv University journal (Dine Israel, vol XIX, 1997-1998).
My father has now adapted that article into an english language version
which he has given me.
He has agreed to my making the article/proposal available via the
internet. I am currently transcribing it from the paper copy I have to
electronic form, and will make it available, at via the web site and the
listproc. I'm not sure whether to send it out to the list, as it will
be about 2-3 times the size of a regular posting. I figure I need about
2-3 more days before I have it transcribed, and then I will make the
decision. If anyone has any suggestions, please feel free to let me
know. The title of the work is: The Problem of abandoned Wives and
Mamzerim - A Proposal for a Comprehensive General Solution (A Proposal
for Discussion in Terms of Jewish Law and Values) by Meir Simcha
Feldblum (Professor, Department of Talmud, Bar Ilan University).
Avi Feldblum
mail-jewish Moderator
<mljewish@...>
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From: Carl M. Sherer <csherer@...>
Date: Thu, 26 Aug 1999 12:53:52 +0300
Subject: Kinyan = ownership?
Perry Zamek writes:
> I would like to suggest an alternative interpretation -- "Kinyan" in the
> sense of undertaking, or obligation. (as in, he "made a kinyan to carry
> out a certain act") In that sense, the Kohen's wife (the daughter of a
> non-Kohen) may eat Terumah because he (the Kohen) has made an
> undertaking or commitment to her, by virtue of the Kiddushin act -- to
> relate to her with a sense of Holiness (Kiddushin from Kadosh?) within
> the marriage framework. Thus, she is not his property, but the
> beneficiary of his commitment. (And her acceptance of Kiddushin is not
> in the sense of "selling herself", but in the sense of accepting, or
> even reciprocating, his commitment.)
The only problem with this is that mid'oraysa (from the Torah), the
woman is permitted to eat Truma from the time of erusin (roughly
translated as engagement, although it was more of a commitment to marry
than what we commonly call engagement today), but the Rabbis prohibited
it out of fear she would give it to the other members of her father's
household (see Rambam Hilchos Trumos, Chapter 6). This makes it clear
that the woman could eat from Truma notwithstanding the fact that she
did not yet live in the Cohen's house, and that he was not yet relating
to her within the marriage framework.
Might one not argue, similarly
> (although I have never seen this written), that if a Kohen has
> determined to divorce his wife, then she might not be allowed to eat
> Terumah, since *he* has "backed out" of his original commitment? (On the
> other hand, maybe the comparison doesn't work, since eating Terumah is
> different from sexual relations, in that the latter goes to the
> fundamental basis of marriage.)
It's different for a lot of other reasons also. The wife's permission to
eat Truma derives from the Cohen-husband's obligation to support
her. The fact that he has decided to divorce her does not free him from
the obligation to support her (at least until there is a get and her
ksuva is paid off) and therefore she would (I think - I didn't find this
explicitly either) be allowed to continue eating Truma.
Moreover, if the husband dies after the couple had children together,
the wife is able to continue eating Truma by virtue of the
children. That is because the children now have an obligation to support
her until they have paid her ksuva (marriage contract) or she has
remarried. If she remarries to a non-Cohen, she is no longer permitted
to eat Truma, because the obligation to support her has devolved upon
someone else who is not a Cohen.
I think it's clear that the ability of a woman who is not from the
lineage of a Cohen, but who is married to a Cohen, to eat Truma derives
from the husband's obligation to (financially) support his wife, and not
from any emotional commitment in the marriage.
Carl M. Sherer
mailto:<csherer@...>
Please daven and learn for a Refuah Shleima for my son,
Baruch Yosef ben Adina Batya among the sick of Israel.
Thank you very much.
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From: Janet Rosenbaum <jerosenb@...>
Date: Wed, 25 Aug 1999 17:05:51 -0400 (EDT)
Subject: Kinyan = ownership?
Perry Zamek <jerusalem@...> writes:
> I would like to suggest an alternative interpretation -- "Kinyan" in the
> sense of undertaking, or obligation. (as in, he "made a kinyan to carry
> out a certain act") [..] Thus, she is not his property, but the
> beneficiary of his commitment. (And her acceptance of Kiddushin is not
> in the sense of "selling herself", but in the sense of accepting, or
> even reciprocating, his commitment.)
it is interesting, also, if we look at the direction in which the
document is passed. (as i understand the issue), in a real estate
transaction, it is the buyer who receives the document; in the case of a
wedding, it the the woman who receives it, so if we make it parallel, it
is the woman who is the buyer. perhaps the other two aspects of the
ceremony are the "down payment". (i have no idea if such exists in
halacha.)
i'm not sure how well we can carry the analogy: is there a parallel
anywhere to a get?
janet
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From: Oren Popper <oren@...>
Date: Wed, 25 Aug 1999 17:28:06 -0400
Subject: Kinyan = ownership?
> From: Perry Zamek in MJv29n63 writes:
> Zvi Weiss, in MJv29n57, writes:
>
> >Perhaps, I
> >can INCREASE his discomfort by pointing out that the Gemara states that
> >the WIFE of a Kohen (who is not a Bas Kohen) may eat Teruma (which is
> >normally prohibited to non-Kohanim on pain of death!) because she is the
> >PROPERTY of the Kohen ("Kinyan Kaspo", I believe is the term used..).
> ....
> The same applies to the concept of "Kinyan". In its literal sense, it
> does seem to imply acquisition, and on that basis the wife of the Kohen
> is his "property".
>
> I would like to suggest an alternative interpretation -- "Kinyan" in the
> sense of undertaking, or obligation. (as in, he "made a kinyan to carry
> out a certain act") ...
I did indeed give this some thought, and I appreciates Zvi's direction
in thinking about this. However, my problem with Zvi's interpretation is
that I cannot see this interpretation applying to Kinyan in different
contexts.
I would therefore suggest another interpretation to Kinyan - "to legally
bind to...". In the few moments of thought I've given to this
definition, it does seem to make sense for an appropriate interpretation
to Kinyan across various contexts, both in passive and active forms
"koneh", "makneh" "mekabel kinyan", etc..
[Just a quick note on the meaning of Kinyan: See the translation I used
in my submission above, it is copied from my fathers article, and you
will see that your interpretation is very close to what he used. Mod.]
Using this definition I would translate "Kinyan Kaspo" as "bound to him
legally via a monetary transaction". When one "makes a kinyan to carry
out a certain act" he is "legally binding himself to his commitment to
carry out a certain act". Also think of "bishlosha drachim ha'isha
nikneis", all three means create a legal binding of the man to the
woman.
Unlike Zvi's definition, which would imply the obligations of the
"koneh" and the rights of the "kinyan" - "object", this definition can
imply both the "koneh's", "kinyan's" and "makneh's" obligations and
his/her/its rights.
I think the problem of misinterpreting Kinyan, is that we often try to
apply modern Hebrew interpretations, to original Loshon Kodesh words as
used in TaNaCh or in the Mishna and Gemara.
Oren Popper
Brooklyn, NY
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End of Volume 29 Issue 72