Volume 62 Number 89
Produced: Mon, 23 May 16 01:06:01 -0400
Subjects Discussed In This Issue:
"Kinyan" in the Context of Marriage (2)
[Yisrael Medad Saul Mashbaum]
A shul in the Bronx
[Sammy Finkelman]
Agunah Problem (was Concubinage Relationship)
[Dr Russell Jay Hendel]
Concubinage Relationship
[Susan Buxfield]
Homosexuality
[Martin Stern]
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From: Yisrael Medad <yisrael.medad@...>
Date: Sun, May 22,2016 at 04:01 AM
Subject: "Kinyan" in the Context of Marriage
Saul Mashbaum wrote (MJ 62#87):
> In the course of the discussion of concubinage relationship, the idea that the
> man 'acquires' the woman has often been stated, based on the mishnaic
> principle that 'a woman may be acquired (nikneit) in one of three ways.' This
> in turn derives from the usual meaning of 'kinyan', purchase or acquisition,
> something one does in a store, for example. The identification of 'kinyan' with
> 'purchase', in the framework of a discussion of marriage, has lead to much
> misunderstanding, confusion, and indeed resentment by women that in Judaism
> the man 'buys' the woman, and presumably 'owns' her in some sense.
>
> Although 'purchase' is one meaning of 'kinyan', it is not the only one, and is
> not the one which applies to marriage. Most broadly, a kinyan is an act which
> formally finalizes an agreement, and makes it binding, such that neither party
> can retract on his own without consequences.
The term "kinyan" stems from the verb used to describe God's action - "koneh
shamayaim va'aretz"? Not a purchase or acquisition or agreement but a building
up, a construction of a relationship?
Also Russell Jay Hendel wrote (MJ 62#88):
> Under Jewish law, if a married woman gets into bed with her husband, she
> grants him the right to for example have unnatural relations (even though his
> wife expected the opposite) or to kiss where he wants (even though his wife
> objects). In other words, the husband has purchased certain rights on the
> woman's body. He has the right to do things even though she objects.
Shouldn't that be "she does not grant..."? And also "because she does not
agree"? As the Rambam writes, De'ot 5:4-5:
Halacha 4
Although a man's wife is permitted to him at all times, it is fitting that a
wise man behave with holiness. He should not frequent his wife like a rooster
... He should not be excessively lightheaded, nor should he talk obscene
nonsense even in intimate conversation with his wife ... [At the time of
relations,] they should not be drunk, nor lackadaisical, nor tense - [neither
both of them,] or [even] one of them. She should not be asleep, nor should the
man take her by force, against her will. Rather, [the relations should take
place] amidst their mutual consent and joy. He should converse and dally with
her somewhat, so that she be relaxed. He should be intimate [with her] modestly
and not boldly, and withdraw [from her] immediately.
Halacha 5
Whoever conducts himself in this manner [may be assured that] not only does he
sanctify his soul, purify himself, and refine his character, but, furthermore,
if he has children, they will be handsome and modest, worthy of wisdom and
piety. [In contrast,] whoever conducts himself in the ways of the rest of the
people who walk in darkness, will have children like those people.
The Shulchan Arukh, OH 210:4 is quite specific not only about a prohibition of
kissing wherever he wants or even looking at her expose private parts and
connects it to a Biblical verse. The Talmud at Niddah 17A forbids intercourse
in daylight or by a light at night.
I think the standard of "Jewish law" is not as RJH would have us think.
Yisrael Medad
Shiloh
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From: Saul Mashbaum <saul.mashbaum@...>
Date: Sun, May 22,2016 at 05:01 AM
Subject: "Kinyan" in the Context of Marriage
Joseph Kaplan wrote (MJ 62#88):
> Saul Mashbaum's thoughtful analysis (MJ 62 #87) of haisha nikneis (the woman
> is acquired) concentrates on the verb, nikneis, and argues that, in this
> context, it connotes an agreement and not an acquisition. I wonder, though,
> about the other word in the phrase - haisha (the woman) which is the object.
> When you have an agreement, there are two (or more) parties - Saul and I
> agree ... (or not J). An agreement doesn't happen to one person. Here,
> however, the syntax seems to me (and I'm certainly no expert) to mean that
> something is happening to the woman, not that the woman is doing something.
I do not think that this presents any difficulty to my thesis. In many (perhaps
most) agreements, one party is the 'active' party in establishing the agreement and
the other is the passive party. The mishna is stating that the woman is the passive
party in *establishing* the agreement - putting it into effect and
making it binding. The gemara explicitly inquires why the first phrase in the
mishna is phrased in the passive and says it indicates that the woman, although
passive in the *act* of kiddushin, must consent (another indication that we're
talking about an agreement).
If a lawyer were to tell a prospective client, "I can be designated as your
attorney by signing this 'Power of Attorney' form, which will empower me to
represent you and act on your behalf", it is clear that if the client signs the
document, he does not own the lawyer. What's being done is establishing the
client-attorney relationship, with all its legal ramifications. The act of
kiddushin does not purchase the woman but does establish the husband-wife
relationship, with all its legal ramifications. The *intent* of the mishna, what
it is telling us, is how a woman (and therefore a couple) becomes married.
Analyzing the concepts of "purchase", "buyer", "seller" and "ownership" is
missing the point.
Furthermore, the mishna goes on to say "v'konah et atzma bishnei drachim". This
*means* that the marriage relationship is *terminated* in one of two ways.
Indeed, the woman is essentially passive in both of these two ways, indicating
that the active/passive voice in the formulation of the mishna does not mean
that the party cited is active/passive in the action. Here too, "acquires
herself" as a translation of "konah et atzma" misses the point.
Thus, the beginning of the mishna specifies the acts or situations which
initiate and terminate a marriage. The mishna chooses to put these ideas in
terms of "the woman" and "kinyan", but the subject at hand is "getting married"
and "becoming a widow or divorcee", not "purchase".
Strictly, "kinyan", as used in the mishna, may refer to "establishing a
legal relationship and making it binding" even if the relationship involved
is not an explicit "agreement". This is the case of yevama, who may become
married to the yavam in one way, even if she did not explicitly agree to marry
the yavam. It is possible to understand this as when a woman agrees to marry
someone, she is implicitly consenting to marry her brother-in-law if her husband
dies childless. In the Torah's terms, if a woman does not consent to be married
to any of the proposer's brothers, she must decline the proposal; if she does
consent to the marriage, this consent applies, in one very restricted and quite
rare case, impliictly to her husband's brothers.
Thus, looking at the first mishna of Kiddushin in its entirety, "konah" refers
to several concepts
1. "an act which establishes a marital relationship"
2. "an act or occurrence which terminates a marriage"
3. "an act which establishes a levirate marriage" and
4. "an act or occurrence which terminates the relationship between a childless
widow and her late husband's brother".
In all these cases, the "relationship" is what we are talking about, and no
"purchase" of any object or person is being discussed.
Saul Mashbaum
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From: Sammy Finkelman <sammy.finkelman@...>
Date: Fri, May 6,2016 at 05:01 PM
Subject: A shul in the Bronx
Saul Mashbaum wrote (MJ 62#83):
> The sifrei Torah of the old shul [Young Israel of Claremont Parkway in the
> Bronx] were transferred to the new one, as were the impressive, weighty
> bronze memorial plaques
This reminds me of something that happened with another shul in the Bronx that I
didn't know about when I was there. It moved first within the Bronx from
somewhere east of Claremont Park to a place on Sheridan Avenue and then moved
or merged with a congregation on West 8th St. in Brooklyn after that shul's Rabbi
- a Rabbi Adler - retired to Israel circa 1970. Rabbi Moshe Soled was the Rabbi.
He knew the Chofetz Chaim, I think, and at one time had wanted to do something
with Shifra Hoffman (who worked for him) to make Jewish education free.
All the plaques from both shuls were in there, including one memorializing
people killed in Pinsk (between the wars, by the way, Minsk was in Russia but
Pinsk was in Poland). There were also two books giving the history of both shuls.
With time, the shul was shrunk two times in the 1980s and early 1990s.
After Rabbi Soled died suddenly on the afternoon of the 7th day of Pesach 1992,
and the services further diminished, the shul was sold to someone who betrayed
the Rebbetzin. He was supposed to use part of it for something Jewish, I don't
remember what or never knew. Maybe a kindergarten. He sold it to a mosque. They
were in court for many years, but lost. And the mosque had no outward signs for
many years. One day the plaques were thrown out in the street (circa 1998 -
still before the mosque had outward signs). The person who saw them told me
he didn't rescue them because (not his exact words) what counted was what was in the
cemetery.
They also used to sing "Hayom, Hayom, Hayom" every Shabbos. It was included in
the small Shabbos siddurim they had, I think (we didn't say it by heart).
Many years later, when Cantor David Fastag, I think, was back again one Rosh
Hashonah and Yom Kippur at Congregation Bnai Isaac, he saw that I knew it and he
remarked on how I remembered it just from Rosh Hashonah/Yom Kippur. I said this
had been sung every week. He said it was only sung on Rosh Hashonah and Yom Kippur.
Now I don't know if this was ever sung anywhere else every Shabbos besides the
Young Israel of Claremont Parkway....
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From: Dr Russell Jay Hendel <rashiyomi@...>
Date: Sun, May 22,2016 at 12:01 AM
Subject: Agunah Problem (was Concubinage Relationship)
I just a heard a delightful lecture from a visiting scholar, Rabbi Breitowitz,
who spoke about the Agunah problem. During the lecture, Rabbi Breitowitz
outlined certain Jewish legal positions on the ease (or lack thereof) of women
obtaining divorce. Based on these opinions, I must clarify certain comments I
made about a man's right on a woman's body (MJ 62#84/88).
First, let me explain what Rabbi Breitowitz said about the Jewish legal sources
on a woman's right to obtain a court order for divorce. According to Rambam,
*all* a woman has to do to obtain a court order is say "I find him repulsive; I
can't stand living with him." She needn't give 'evidence.' The Rambam uses very
harsh language: "She is not a captive that can be forced to have relations with
someone she hates." I had always thought that this was the position of normative
Jewish law.
However, Rabbaynu Tam dissents. A women can only obtain a court order for
divorce in 4 specific cases mentioned in the Talmud, such as a specific
profession or sickness leaving the person with intolerable body odors.
Although the Code of Jewish Law, Shulchan Aruch, decides like the Rambam in 9
out of 10 cases, this particular time, both the Shulchan Aruch and the Rema
decided like Rabbaynu Tam.
Today in Israel we take a mellowed down position of Rabbaynu Tam. A women
suffering from abuse may obtain a court order for divorce. Abuse used to be
defined as physical abuse, but lately courts have allowed emotional abuse. The
Toanot (Jewishly ordained female lawyers) have been very helpful in pushing such
cases through. She may have to bring evidence, but the evidentiary standard is
not that of two Jewish witnesses (women and non-Jews may provide evidence).
The above lays the grounds of allowing a court order. In practice, in any
particular case a court may or may not order the divorce. In Israel, the
religious courts are considered agents of the state, which means that a woman who
obtains a court order has certain rights, through the court's actions, against
her husband, including the capacity to revoke his license, revoke his passport,
fine him or place him in jail. Thus, a court order significantly helps a woman to
obtain a divorce.
Rabbi Breitowitz expressed his opinion that in practice court orders may depend
upon place. He believed 10% of cases in Jerusalem result in divorce while in Tel
Aviv it might be 20%-25%. Much more was said but this is all we need for now.
In my previous posting (MJ 62#84), I mentioned that the act of marriage is an
act of purchase of participatory rights on the woman's body: She does not waive
her right not to be damaged or have pain inflicted on her however within those
restrictions; she waives her right to stop her husband from any bedroom
practices. All this was said under my assumption that if she really did not like
the behaviors, she has a right to a divorce. In other words, if a woman wants to
stay in the marriage but wants the courts to 'order' against certain bedroom
practices that do not involve bodily harm or pain, then the courts should
rightfully abstain. They have the right to interpret the simultaneous desire to
stay in the marriage and to endure certain practices as part of the marital play
of that marriage. If you like, they interpret the situation as that particular
couple's way of ensuring the husband gets sufficiently aroused. Again: All this
is based on the fact that she doesn't walk out of the marriage by walking into
court and declaring that she now finds him repulsive.
But I found out today that this is not the current view. In light of this I must
reevaluate the woman's refusal. First, I point out that Rabbaynu Tam does not
disagree with the Rambam's statement that this woman has become like a captive
who must have sex with those whom she hates. Indeed, both Rambam and Rabbaynu
Tam agree to this. They disagree on whether this is grounds for divorce. The
Rambam holds it is. Because Rabbaynu Tam interprets the Talmudic cases for divorce
restrictively, only those cases and no others, he does not consider general
repulsiveness as grounds for divorce.
It follows that we can separate the moment in the marriage when the man no
longer has participatory rights on the woman's body from the actual moment of
divorce. Indeed, since Rabbaynu Tam and Rambam agree that a woman can enter a
state where she finds her husband repulsive, they must agree that at that point
even though she is not yet formally divorced her initial waiver of non-damaging
non-pain bedroom practices is revoked. (For again: The entire point of the
waiver was the understanding that men may need a certain amount of a sense of
possession to arouse themselves and the woman, if she really loves him,
accepts this and waives her right to protest provided she is not damaged nor has
pain and he satisfies her at the required frequency. Such a waiver does not
exist if the woman requests a divorce before a court, even if all she has is a
statement of repulsiveness.)
In passing, I was shocked that Rabbaynu Tam's position is held today, seeing all
the suffering it causes.
Dr Russell Jay Hendel;
Rashiyomi.com
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From: Susan Buxfield <susan.buxfeld@...>
Date: Sun, May 22,2016 at 05:01 AM
Subject: Concubinage Relationship
Dr Russell Jay Hendel's narrow interpretation of RamBaM's Ishut 1:4 (MJ 62#80
and earlier posts) seems to contend that there are only two types of women a
male can have relationships with, a Kadeishah (prostitute) or a Mekudeshet
(married woman), while ignoring other places in the RaMBaM that permit
relationships with women such as a Meuyedet (Amah Ivriah), Meyuchedet (Pilegesh)
and, in the case of a Mamzer, a Shifchah Kena'anit (a non-jewish female slave).
While a relationship with an Amah Ivriah is not possible today, Pilegesh has
become a viable option for those who have the means to maintain an independent
financial life and wish to avoid future possible intrinsic disadvantages to the
female spouse in a mekudeshet relationship.
As Martin Stern wrote (MJ 62#81):
> Nowadays people live together without being married
> and this usually carries little if any social stigma.
While the issue of Shifchah Kena'anit with a Mamzer is much more complicated,
due to the Takana of Dina DeMalchuta Dina, apparently there are ways to acquire
(Chazaka) that are used by some reputable Batei Din in a limited and not
publicized manner to permit such a union.
Susan
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From: Martin Stern <md.stern@...>
Date: Sun, May 22,2016 at 02:01 AM
Subject: Homosexuality
Dr Russell Jay Hendel wrote (MJ 62#88):
> Martin Stern (MJ 62#87) mentions certain (non-Jewish) suggestions that the
> prohibition of homosexuality in Lev. 18:22 is only a prohibition of homosexual
> relations connected with idolatry, a sin mentioned in Lev. 18:21. Martin then
> gives an exhaustive analysis and invites comments.
Unfortunately some Jewish persons, mainly Reform et al. but also those of
the "gay Orthodox" persuasion, try to make this argument.
> I just wanted to make some extra points:
>
> 1) The Molech ritual mentioned in Lev. 18:21 involves passing children through
> a fire and does not involve any homosexual practices. Consequently, one can't
> see in the juxtaposition of Lev. 18:21-22 a prohibition of homosexuality
> related to idolatry since the biblical text is not speaking about it.
I fear that Dr Hendel has missed the point: neither I nor the Anglican
theologian to whom I referred were suggesting this. The point he was making
was that by inserting the molekh prohibition before those of sodomy and
bestiality, the Torah may have wanted to indicate that the latter were
separate in nature from the preceding transgressions (hefsek ha'inyan) and
were, therefore, basically idolatrous rather than sexual. My analysis was to
counter THIS perception.
Martin Stern
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End of Volume 62 Issue 89
