Volume 29 Number 87
Produced: Tue Sep 21 21:42:31 US/Eastern 1999
Subjects Discussed In This Issue:
Alternatives to Kidushin
[Warren Burstein]
Alternatives to marriage?
[Isaac A Zlochower]
Kinyan
[Shelli and Dov Frimer]
Non-mariage marriages - why the discussion?
[Paul Shaviv]
Pilagshot in Torah
[<CHIHAL@...>]
Pilegesh as alternative to Kiddushin
[Gitelle Rapoport]
Pilegesh as an alternative to marriage?!!
[Warren Burstein]
Secular Marriage (was Alternatives to Kiddushin)
[Carl M. Sherer]
The Validity of Reform Marriages
[Shelli and Dov Frimer]
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From: Warren Burstein <warren@...>
Date: Thu, 16 Sep 1999 12:56:29
Subject: Re: Alternatives to Kidushin
>From: Steven Pudell <Gmachine9@...>
>The secular marriage issue arose in the Yale 4 case. One of the women
>decided to get a secular marriage in order to be able to live off
>campus. Rabbi E. Kanarfogel (Beth Aaron Teaneck) briefly discussed this
>aspect of the case, noting that secular marriage is NOT a nullity
>according to most opinions and may necessiate a get.
What ways are there to effect kiddushin other than kesef, shtar, and
biah (compensation, a contract, or living together)? It would seem to
me that none of these were present here. And if there's no kiddushin,
why would a get be needed?
The argument against R. Feinstein's disqualification of non-halachic
marriage ceremonies, as I understand it, is that even though kiddushin
did not happen at the ceremony, the couple lives together and that is
sufficient for kiddushin. (BTW, how would these opinions rule if the
couple never took up residence together?) But that would not have been
applicable here.
Or was R. Kanarfogel discussing civil marriage in general, prompted by
this case, but not saying that in this case of civil marriage a get was
required?
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From: Isaac A Zlochower <zlochoia@...>
Date: Sun, 19 Sep 1999 16:00:41 -0400
Subject: Alternatives to marriage?
Recent and on-going discussions on the question of "pilagshut" as an
alternative to "kiddushin" reflect the continuing absence of accepted
answers to the "get" problem within the fold of orthodox Judaism.
Someone suggested that "pilagshut" is an undesirable relationship for
the woman involved since she has no protection of a "ketuba" in case the
retationship is terminated. Pray tell, what real protection is provided
by a traditional "ketuba"? Is it the 100 or 200 pieces of refined
silver that is provided the woman in case of a "get"? Attempts to
change the language of the "ketuba" to provide appropriate monetary
compensation or other protections for the wife have met with great
resistance on the part of the general orthodox rabbinate. There are
women who are frightened of marriage by the experiences of friends who
have been victimized by the halachic ramifications of a failed marriage
and an abusive spouse, and there are women who are trapped in such a
marriage because their husbands refuse to issue a "get". If accepted
answers are not soon forthcoming then, I'm afraid, that we will see many
such unofficial living arrangements with both unmarried and married male
partners.
Concerning the efficacy of a civil marriage in requiring a "get" to
dissolve that relationship, I am surprised that someone would imply that
a simple civil marriage ceremony in front of two halachically invalid
witnesses and without the giving of anything of value to the woman would
constitute anything substantive in halacha. Here there is no "keseph",
no valid "shtar", and there is no intention of entering into a physical
union with traditional "kiddushin". I don't know the young woman of
the "Yale Four" who was alluded to, but I do know that she comes from a
learned rabbinic family. Does anyone imagine that this "frum" young
woman would have consented to a civil marriage without the consent of
her family? No doubt, this is a moot point since she must be
Rabbinically married by now to her fiancee.
The above should not be considered a critique of the concept of a
traditional marriage. With all its potential problems, it has allowed
the Jewish people to survive and, even, thrive over the millenia.
Wholesale defections from that social system would be a national
disaster. If it takes a leap of faith to bind ourselves to a marriage
partner, so does it take to accept the idea of a caring G-D or the basic
accuracy of the transmitted torah. We live by faith as well as reason.
I argue only for a greater effort in cushioning the fall of those whose
faith has been betrayed.
"Gemar chasimah tovah"!
Yitzchok
----------------------------------------------------------------------
From: Shelli and Dov Frimer <greenj94@...>
Date: Wed, 15 Sep 1999 23:42:22 +0200
Subject: Kinyan
For a summary of the history and function of kinyan see Prof. Sinai
Deutch's wonderful article: "Mental Consensus ('Gmirat Da'at') and
Intention to Create Legal Relations in Jewish, English and Israeli
Contract Law," Shenaton Ha-Mishpat Ha-Ivri, Vol. VI-VII (1979-1980),
71-104, esp. pp. 81-95. Kinyan is an objective, overt act which
evidences - and therefore also creates - the subjective element of
gemirut da'at (seriousness of intent) - an necessary element in the
creation and transfer of all consentual rights (unless created by
operation of law). As Prof. Deutch explains, kinyan was initially
required exclusively for the acquisition of property (in rem) rights. As
time went on, however, kinyan was used to evidence gemirut da'at in the
acquisition of "less serious" contractual (in personum or quasi in-rem)
rights, as well. Even with contractual rights, though, the historical
name kinyan was retained for the form - as a borrowed term - despite the
fact that nothing tangible was being acquire.
Kinyan in marriage - including kinyan kessef as a form - is an
example of the latter. There is no acquisition by man of the women's
person! The phrase ha-isha nikneit is nothing more than the utilization
of the borrowed term.(Apropos, the women is requires to perform a kinyan
on the ring which she receives during the marriage ceremony, most
commonly executed by her closing her hand or switching the ring from
one finger to another.) The nature of kinyan in Jewish marriage has been
discussed at length by the Rishonim and Aharonim. For excellent
summaries and discussions of this material see: Rav Judah Leib Graubart,
Resp. Havalim ba-Ne'imin, Vol. I, Sugya 5; R. Koppel Kahane, Theory of
Marriage in Jewish Law (Lieden: Brill, 1966, esp. pp.28ff. and Birkat
Kohen (Jeruasalem:Mossad Harav Kook,1972), pp.101-123, Prof. Shalom
Albeck, Dinei ha-Mamonot ba-Talmud (Tel Aviv: D'vir Co.,1976),
pp.392-397.
For further discussion of the basic elements of marriage in Jewish
Law, see: Norman E. Frimer and Dov I. Frimer, "Reform Marriages in
Contemporary Halakhic Responsa," Tradition, Vol. 21, No. 3 (Fall 1984),
7 at pp. 9-11 and sources cited therein; reprinted and updated in Norman
E. Frimer, A Jewish Quest for Jewish Meaning: Collected Essays (N.J.:
Ktav Publishing House,1993), 144 at 146-149.
Dov I. Frimer
----------------------------------------------------------------------
From: Paul Shaviv <pshaviv@...>
Date: Fri, 17 Sep 1999 07:22:54 -0400
Subject: Non-mariage marriages - why the discussion?
Without commenting on the halachic validity or otherwise of the
suggestions for 'non-kiddushin marriages', I think that one or two
contributors are missing the wood for the trees. There is only one real
reason why this topic has arisen, and it has nothing to do with straying
Orthodox husbands; it is the unsolved get / agunah situation, which it
seems to me is likely to threaten the entire fabric of Orthodox life. A
contributor recently wrote: "So long as women have the *option* of full
marriage with a ketubah (and there are no market or other forces
restricting that option), Judaism has done its part to ensure that
women's rights are protected."
Unfortunately, in contemporary society, that is simply not true. A woman
entering into Orthodox marriage is putting herself in the most
appalling vulnerable position. There are many circles where it is now
considered the norm for a woman (or her family) to pay heavily for a
get. (A few months ago, one of N America's most prominent rabbonim,
lecturing on the get/agunah problem, opened his analysis by saying that
there really wasn't such a problem "because most women or their families
can find the money".)
It is impossible not to agree with those who say that if the situation
was reversed (ie that the male partner would be at the mercy of the
female in the granting of a get) then a halachic device would have been
promulgated a long time ago to deal with this monstrously unjust
situation, which is, incidentally, a function of changing historical
circumstance. Halakha has not caught up with it. Were it not for love,
normally present at the time of marriage, what young girl would enter
Orthodox marriage today? And what responsible parent should let her?
Paul Shaviv, Toronto
<pshaviv@...>
----------------------------------------------------------------------
From: <CHIHAL@...>
Date: Thu, 16 Sep 1999 10:05:18 EDT
Subject: Re: Pilagshot in Torah
Shana Tova, All:
With all the mail-jewish debate over whether a pilegesh
(concubine) needs a Get or not, let us turn to the most famous Torah
example of a pilegesh being dismissed from the household, without any
mention of a Get or K'tuba. I refer, of course, to Avraham and Hagar.
At Sara's urging he "ran her off the property," and no mention is made
of a divorce, dowry etc.
While it is true this took place before the giving of the
Torah, we are also told that our forefathers observed the precepts of
the Torah via knowledge gained by Ru'akh HaKodesh ("Holy Spirit").
Hence, the absence of any mention in the Torah of Hagar getting a Get or
cash settlement -- just bread and a bottle of water -- could indicate
that a concubine did not need a Get.
"But wait," you say, "although Hagar certainly had the 'job
description' of a pilegesh, in the Torah she is referred to as 'Sara's
servant'." Nonetheless, she was a de facto concubine. And when we come
to the episode of Reuven taking Bilha, his father's concubine, she was
first referred to as Rakhel's servant when Rakhel gave her to Ya'akov,
but when Reuven took her years later she is referred to as Ya'akov's
pilegesh.
Yeshaya Halevi (<Chihal@...>)
[Actually, what I would say is that while it may be interesting to see
what the text of chumash my say about Hagar, it would have no
significant contribution to the topic under discussion, which is focused
on the Halachic catagory of Pilegesh, and is determined by the talmudic
and post-talmudic decisors writings on the topic. Mod]
----------------------------------------------------------------------
From: Gitelle Rapoport <giteller@...>
Date: Fri, 17 Sep 1999 13:00:55 -0700 (PDT)
Subject: Pilegesh as alternative to Kiddushin
Regarding the requirement of a get for a pilegesh, this may have been
mentioned before, but according to R. J. David Bleich's article in the
current issue of Tradition (Winter 1999, "Can There Be Marriage Without
Marriage?), there are different opinions on that. In his words, "Some
decisors have asserted that a concubine requires a get in order to
establish a new relationship." His conclusion, however, is that
"concubinage has been dismissed as a viable option" by poskim, both
because some do require a get and because some consider the concubine
relationship halachically unacceptable to begin with. In his last
paragraph, the position is even stronger: "...concubinage is
prohibited." How similar the relationship previous generations of
poskim had in mind would be to what the current generation is
discussing is an interesting question.
Kol tuv,
Gitelle Rapoport
----------------------------------------------------------------------
From: Warren Burstein <warren@...>
Date: Thu, 16 Sep 1999 13:02:37
Subject: Re: Pilegesh as an alternative to marriage?!!
>From: Nosson Tuttle <TUTTLE@...>
>... normative Orthodox
>Judaism (to say nothing of other groups) would not even consider
>"Pilegesh" as a likely candidate for marriage alternative today.
I did not see anyone propose pilegesh for O marriages. The suggestion
was that perhaps non-O marriages might seem to them to be marriages, but
not be halachic marriages, requiring a get, so that if the non-marriage
ends without a get, mamzerim won't be born.
We wouldn't have pilagshim, we would have kiddushin. They wouldn't
think they have pilagshim, either. But we would think they have
pilagshim (or some other status).
----------------------------------------------------------------------
From: Carl M. Sherer <csherer@...>
Date: Thu, 16 Sep 1999 17:59:39 +0200
Subject: Secular Marriage (was Alternatives to Kiddushin)
Steven Pudell writes:
> The secular marriage issue arose in the Yale 4 case. One of the women
> decided to get a secular marriage in order to be able to live off
> campus. Rabbi E. Kanarfogel (Beth Aaron Teaneck) briefly discussed this
> aspect of the case, noting that secular marriage is NOT a nullity
> according to most opinions and may necessiate a get.
I don't recall all the details of the Yale 4 case, but it seems to me
that secular marriage OUGHT to be a nullity so long as that is the only
thing between the couple (i.e. that they are not living together). I
know several people who had secular marriages in the States (before a
justice of the peace) before their actual weddings because they needed
to be "married" so that a non-US spouse could apply for a green card. I
don't think any of those people would have been considered halachically
married for any purpose.
OTOH, I have not seen what Rabbi Kanarfogel wrote, and my assumption
could be wrong....
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.
----------------------------------------------------------------------
From: Shelli and Dov Frimer <greenj94@...>
Date: Wed, 15 Sep 1999 23:42:08 +0200
Subject: The Validity of Reform Marriages
Joseph Tabory wrote:
> 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.
Carl M. Sherer responded:
'There was a dispute about this between R. Moshe zt"l and R.
Eliyahu Henkin zt"l, but I do not recall the exact details. Perhaps
someone else does."
The entire matter - including the debate between Rav Feinstein zt"l
and Rav Henkin zt"l - is discussed at length in an article which I wrote
together with my father zt"l: Rabbi Norman E. Frimer and Dov I. Frimer,
"Reform Marriages in Contemporary Halakhic Responsa," Tradition,
Vol. 21, No. 3 (Fall 1984), 7 - 39; reprinted and updated in Norman
E. Frimer, A Jewish Quest for Jewish Meaning: Collected Essays, N.J.:
Ktav Publishing House,1993, pp.144 - 183. Apropos, I will be teaching a
year long course on the subject, this year at The Hebrew University
Faculty of Law.
Moshe Feldman added:
"However, it is my understanding (and Rav Aharon Lichtenstein stated
this at a Shabbaton at YU
around 1989) that R. Moshe was in the minority on this issue."
While I have not discussed the matter with Rav Lichtenstein, I would
guess that Rav Lichtenstein was refering to the time when Rav Moshe
began writing on the subject, i.e.the late1950's (although others had
written earlier on the subject of Civil Marriages and many came to the
same conclusion as Rav Moshe). At that time, most Halakhic authorities
required a get mi-safek for either a Civil or Reform marriage. As time
went on, however, and especially since Rav Henkin's passing in the
mid-sixties, Rav Moshe's position has gradually become the dominant -
although not the only - view, both in Israel (where Chief Rabbi Herzog
also came to the same conclusion as Rav Moshe within the context of
Civil Marriages) and the Diaspora. In practice, most poskim and batei
din today will require a get mi-humrah where readily possible. If there
are any significant difficulties, however, - e.g. iggun, a recalcitrant
spouse, or possible mamzeirut - then a get will not be
required. Needless to say, each case needs to be examined on a
case-by-case basis.
Dov I. Frimer
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End of Volume 29 Issue 87
