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Wednesday, February 15, 2012

Grounds for Divorce? (Part 2: Questions and Methodology)

In approaching this machlokes, we have to begin by answering one question: why can’t a man divorce his wife simply because he wants to? There seems to be a premise that a man needs a good excuse to divorce his wife. What is the reason for this premise? Without an answer (or at least a general approach) to this question, it seems premature to try to define the various positions.

Two possible approaches present themselves:

(a) the Torah’s idea of the institution of marriage doesn’t allow one to just end it (maybe because of the kedusha of kiddushin...).   It demands a certain level of commitment and prohibits termination without good justification.

(b) intrinsically the Torah has no problem with just ending a marriage. However, it is an injustice against the woman to just get divorced without a good reason, being that she entered the marriage assuming a commitment (and this is the standard assumption of a marriage).

How can we resolve which of these two approaches is correct? Which way we decide will greatly impact the type of svara we give to explain the various positions. One way to choose a direction is to find a nafka minah (practical difference) between the two approaches, and then to check it against the facts. A direct nafka minah is if the woman agrees to the husband’s plan of an unjustified divorce. According to approach (a), her agreement is irrelevant - it is still against to the Torah’s idea of marriage to do this. According to (b), if she agrees, then there is no problem.

The gemara in yevamos 37b and the Rambam in Issurei Biah 21:28 supplies us with an answer.  It is totally permitted for a man to marry a woman for a short period of time, provided that he tells her in advance (Rav and Rav Nachman used to do it!). We can conclude that the prohibition to break off the marriage is clearly based upon it being a sin against the woman. In further support of this conclusion, the same gemara and Rambam clearly indicate that getting married with an undisclosed plan to get divorced is a crime against the woman.

Thus, it seems that we  must go with possibility (b). One cannot divorce a woman with no valid reason because it is violating his commitment to her. The area of the machlokes is the determination of the conditions under which it is legitimate to end a marriage without breaking his commitment to her. With this step, we have determined a framework within which we can analyze each of the positions and determine the basis for their machlokes.

Based upon this step, another question emerges. How do we understand Rabbi Akiva’s position? Does he (i) agree with the premise that it is a sin against the woman to end a marriage with no good reason, but holds that finding a prettier woman is a good enough reason? Or does he (ii) argue on the premise that one needs a good reason.

Both of these approaches seem difficult. For (i), if finding a prettier woman is a good reason, what is not a good reason?  Approach (ii), however, makes the machlokes between Rabbi Akiva and the others very fundamental and difficult to define  (In general, it is a good idea to assume that arguments between Rabbis are on a particular detail than to assume that they argue on a fundamental premise).  In formulating a svara, we will have to decide how to interpret Rabbi Akiva’s position in light of this problem.

Hopefully, this post provides some further direction to formulate a svara for this three-way machlokes.

43 comments:

  1. If we take the approach of generally they argue on a detail, not on a fundamental principle, I still think we can have the machlokes between (a) and (b) in that those two sides are not a fundamental difference per se. If we take (b) as the working approach, it still is a machlokes regarding whether, even if the Torah has no problem with just ending the marriage, there must still be a reason for ending it that the Torah accepts. So either (a) it's for something that is a fundamental issue with the marriage (violation of kiddushin) (BS) or (b) it's a subjective reason as I outlined in my post on the first part. The subjective reason being either an accident of the marriage situation (cooking as her responsibility) (BH) or simply a fully subjective reason (found someone prettier) (RA)

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    1. You said "even if the Torah has no problem with just ending the marriage, there must still be a reason for ending it that the Torah accepts."
      can you clarify your reasoning?

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    2. The Torah leads me to conclude that by not simply saying if a man takes a woman and wants to divorce her. Since it ascribes a reason, it doesn't seem to accept a reasonless divorce, even if the reason is trivial.

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    3. the torah does imply you need a reason. what is the reason you need a reason? did the torah arbitrarily decree you need a reason to divorce your wife? (the torah doesnt demand a reason to sell your house)

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    4. I would say this is an area of perfection and therefore the Torah requires a reason in order to ensure the perfection is maintained or perhaps not diminished willy nilly. Selling your house isn't an area of perfection.

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  2. Why can't the approach to the machlokes be: what is the MOST essential nature of the relationship between a man and a woman such that when one of these three things happen the essence of the relationship is nullified and therefore you can divorce her? For example maybe you could say that the nature of the relationship is that the woman designates herself to the husband for biah, and that essence would be nullified when he finds in her an ervas davar. Or that the nature of the relationship is that the woman is supposed to complement the man psychologically(a man is a half man when he is not married) and she is not acting as that complement anymore when he finds a better woman to suit his psychological needs-the shita of a woman prettier than the first wife. The third shita would hold that the relationship at its essence is neither psychological nor sexual, but rather functional, therefore the relationship has been mufkah when she even messes up his dinner that she prepares for him. is this plausible?

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  3. Interesting approach Mio.
    However, it seems that BH would agree that BS's case is certainly grounds for divorce. Similarly, RA would agree with both BH and BS's cases. This follows from the word "afilu" being used in the mishna.

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    1. Good point I didn't see the mishna with rashi when I thought of the idea.

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    2. Can you perhaps say and I don't want to sound too dochek but maybe: BS holds it's purely a relationship where she is meyached herself for biah therefore she defies that when there is ervas davar. BH holds the nature of the relationship is for her to so to speak 'subordinate' herself to the husband through only having biah with him which doesn't happen when she has ervas davar and she messes up his dinner. RA holds that the nature of the relationship is for her to complement him and act as partner in their relationship which doesn't happen when you have biah with someone else(you've defied the partnership) or when you ruin his dinner(you're not assisting in the partnership and thus you've broken it) and when he finds a nicer woman he doesn't view you as a viable partner in the relationship anymore and therefore you don't find that she is a complement to you anymore.

      What do you think of this?

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    3. BS is good. but you need to define both BH and RA as unified positions. right now you are viewing them in parts. what is the one category that unifies each position?

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  4. according to BH the relationship is a din in subordination which is nullified when she has dvar ervah and messes up his dinner.

    According to RA a relationship essentially is a function of a joint partnership where both complement each other. That is nullified when a)she has ervah, because she has taken herself out of the partner status when she engages in another relationship. b)when she ruins his dinner, she is detracting from the partnership in which they both complement each other and enhance the relationship together. c) when there is someone out there prettier than her she is no longer viewed as a viable partner who complements him, but rather a drag.

    I'm saying the same thing i said above, I think I'm unifying each position(either a partnership, or an idea of subordination) based on the criteria they both need for him to be able to divorce her.

    I hope I'm clear.

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    1. we hear your approach. we went in a different direction which we'll show in our next post.

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  5. Question- according to your a)- a woman and man's desire to end a marriage would not be considered a good justification?

    Also, it seems to me that an obvious problem with just ending a marriage is a breach of a written contract. If men do not honor contracts that they sign, society would not be able to function properly (economically, politically, etc) so it would make sense that Halacha cannot permit this and require men to honor contracts unless an obvious breach was made or both sides decide to end.

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    1. correct. if it based on the nature of the institution of marriage, it would not be up to either party, or even if both agreed...

      what written contract are you referring to?

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    2. the ketubah doesnt say under what grounds he may divorce her

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  6. It seems difficult to say that the woman may agree to an unjustified divorce based upon the facts. The gemara and psukim seem to directly show a requirement for some kind of justification.

    I'm not sure that I follow how the gemara in yevamos and the Rambam in Issurei Biah prove (b) over (a). Those sources don't really indicate anything about consent, but rather fraud. Those sources indicate that the marriage is bad when entered into under false pretenses, not when it violates her consent. The nafka minah would be if one entered into a marriage with intent to divorce without disclosing so to the wife before-hand and the wife then, after marrying, consented to the divorce. Based upon your position it would seem that this is okay because he has gained her consent, but it seems that the gemara would conclude that he had still "sinned" against her. I feel that this demonstrates that the issue there is fraud.

    Additionally, I'm not sure that the two cases are comparable at all because there is no indication that the man who enters into a marriage with intent to divorce doesn't have a viable reason (except possibly for BS). Therefore this case may not even be an example of a "reason-less divorce"

    I have no good argument for (a) over (b) but my intuition would say (a). It is a strange position but the pasuk seems to presume a justification when it could have left the reason ambiguous to allow for any possible reason. And I feel that the opinions in the gemara seem more in line with it.

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    1. they definitely are different cases (RA position itself proves this as he would not allow the fraud, but would certainly allow it after, if they both agreed)...

      However, the idea of (a) is the torah defined marriage as a permanent institution. this would preclude the two parties stipulating otherwise (masneh al ma shekasuv batorah, tnei butal)

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  7. Hope I’m not repeating anyone else:

    A divorce is caused by a relationship being fractured. However, the Torah mandated that the cause of a divorce should not be based on the whim of the man but rather by an objective event.
    Q: What kind of event is required to express the fact that the relationship is breached to justify the man in divorcing his wife?

    BS (similar to Matt’s idea I think): Has the highest standards- the event must be one that directly contradicts the halachik institution of marriage i.e. she is halachically forbidden to other men. Her action is one that breached this halachik contract and thus serves as sufficient grounds for divorce.
    BH : The event must simply express the state of the relationship. The relationship is so fragile that the simple event of a wife burning a meal has introduced a real rift in the relationship. According to BH the action isn’t require to be one that undermines the institution- rather, it must exist highlight that the purpose of the institution- a cohesive relationship, isn’t really existing.
    RA: The objective event does not even need to express anything about the undermined relationship of the spouses. Rather it must exist as an objective marker for the fact that a partner in this relationship (the husband), no longer wants to be in the relationship. Finding a more beautiful woman, can serve as an objective event signifying that the man has withdrawn his emotional energies from his wife and has diverted it to other women.
    In summary:

    BS vs BH: Given that the objective event must be one in the framework of the relationship, does the event need to show that the halachik institution of marriage has been undermined or is it enough to show that the Torah's purpose/idea (or psychological institution of ezer kenegdo?) of the institution of marriage is undermined.

    RA vs. BS- Must the objective event signifying that the relationship is undermined be in the framework of the relationship or not as long as such event exists?



    I’m still working on why the Torah mandated an objective event and I will hopefully add that in shortly.

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    1. when we were trying to define the 3 positions, we realized that we couldnt give a clear definition of the machlokes until we had explained why the torah mandated any reason at all...what we mean to say, is that you are reversing the order of operations...first seek to understand the underlying framework (the reason there is a demand for a reason at all), and only then define the machlokes in that framework

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    2. This sevara has an intuition guiding it that I didn't define outright:

      The torah isn't here to force people to be in relationships in which they are unhappy being in. However, a man should not be destroying the relationship on any whim of his. People have mood swings, so the Torah needs a way to force an individual to be objective about the marriage. It does so by forcing the man to find an objective criteria i.e. actual event, that illustrates that the relationship has actually failed and that it is not just in his head.
      This way the Torah is doing justice to the woman because it protects her from being completely subject to the husband's whims and forces the husband to have objective evidence so that the woman can appreciate the need for divorce and can also see that the relationship has failed.

      The 3 positions disagree what kind of objective criteria (event) the Torah demands of an individual.

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    3. How would you explain the fact that if they agree in advance that it is short term, then it's ok to break it, even on a whim?

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  8. sorry just to clarify- for RA- by "the objective event does not even need to express anything about the undermined relationship of the spouses" I mean that the event does not need to occur within the domain of spousal interaction but can occur outside of that realm. The way I phrased it was very vague.

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    1. Levi-r u unifying all of the the shitos with your svara. Meaning RA holds also of BS and BH, and BH also holds of BS. You have to give an idea that expresses all 3 according to RA, first 2 to BH, and one according to BS. this is based on the "afilu" in the mishna.

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  9. Let me start off by saying the idea for blogoshiur is exciting.

    Here are my thoughts:

    First, we must analyze whether the discussion relates to whether the geirushin is chal/not chal, or whether it is speaking about an isur dirabanan to divorce you wife under inappropriate situations, or whether it is simply an eitza tova and the Tana'im are giving advice about relationships.

    Teshuvas HaRashba (Chelek alef siman 18) addresses the famous question as to why there is no bracha for the mitzvah of geirushin. He answers that at times a person divorces his wife "b'aveira", and gives the example that unless a person divorces his wife "im matza ba ervas davar" he is over an aveira. However, the geirushin is nonetheless chal. This is similar to discussion Rishonim have as it relates to takanas Rabbeinu Gershom, about geirushin ba'al korcha and marrying multiple wives, and they explain that if one is migareish ba'al korcha or marries more then one woman, the geirushin and kidushin are nonetheless chal, and the man violates an isur.

    While there are achronim (Kneses Hagedola) who learn that the Mishna is discussing eitza tova, we will follow the approach of the Shut Rashba that the discussion involves defining the isur, and not the chalos geirushin.

    Therefore, this analysis isn't going to get in to the fundamentals about the nature of the mechanism of geirushin, rather, it will be a local discussion about this specific isur.

    The Gemara in Shabbos brings the pasuk of "bareich ni'eitz Hashem" as the source for not saying a bracha of hafrashas chala on wheat you stole. There is debate whether this applies by aveiros min hatorah or also aveiros m'dirabanan (see Rav Elchanan for long discussion this matter).

    It is unclear what the Rashba's position on that matter is, so we can't work back to infer whether the isur in our mishna is dirabanan or dioraiysa. Moreover, if one were to say that they quote pesukim, there is no indication of whether they are a makor for a dioraiysa or an asmachta b'alma.

    Next, we must ask whether the isur applies across the board to all situations, and there are heteirim, dispensation for divorce, a license to divorce in certain circumstances. Or, alternatively, the isur isn't applicable in all situations since the definition of the isur itself is limited in scope. This will affect how we formulate our definitions. In other words, we will either be formulating what the heter is or we will be formulating what the precise scope of the isur. (example of such a question is if one were sick and needs to eat niveila is pshat that there is an isur, but there is a heter of choleh, or was the isur never said in such a scenario. Since there are no indications in the Rishonim which tzad in this "kler" we will define both possiblities.

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    1. Here is the continuation. Have a limited amount of characters per post:


      The easier approach is the heter one. BS learns the heter applies when the fabric of the kidushin is no longer fully functioning on a halachik plane. Once she sleeps with someone else she becomes asur to her ba'al and he becomes asur to her. Therefore, the chiyuv of "ona" that he haves can no longer be fulfilled. So the heter can be formulated as a dispensation to undo a lacking marriage.

      RA holds the heter is "gzeira like". What I mean to say is that when we see that he finds another women he is more attracted to, there is obviously a concern he will sleep with her, so the torah (or chazal) created a heter to avoid this projection/possibility of isur.

      Lastly, BH learns that a man can't divroce his wife for no reason. The heter is to be migareish your wife if you have a reason, any reason.

      This concludes the first approach.

      If you take the other limited isur approach one must define the isur. Here is how that can be done.

      Starting bottom to top. RA learns the isur is to divorce you wife for no reason/ with no Basis. Therefore, if there is a reason, even burnt food, the isur doesn't apply. BS learns the isur is to break a functioning marriage. Therefore, if she sleeps with someone else, since she is asur, the marraige is no longer functioning on all cylinders and the isur doesn't apply. Lastly, RA learns that the isur is to divorce one's wife without promoting the avoidance of aveira. When one is attracted to another woman, that projection and possiblity of hims leeping with her b'isur is avoided so the isur discussed in our mishna doesn't apply.

      Thank you for reading. I welcome all comments. Gut Shabbos

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    2. good research in approaching the machlokes...

      Why, according to both versions of RA, should the torah be concerned with him sleeping with another woman? there is no doraiysa issur for a married man to marry another wife (see rambam peirush hamishna here)?

      you said "BH learns that a man can't divroce his wife for no reason. The heter is to be migareish your wife if you have a reason, any reason."

      why isnt finding a prettier girl "any reason"?

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    3. To address your first question. There is a lot of ink which has been spilled in the discussion of isur kdeisha. Ra’avad holds that the issur only applies to a woman designated to zenus for everyone. Ramban argues that the issur only applies to a woman that kiddushin would not be tofes with. Then lastly there is shittas Rambam which there are different explanations for but the one I think you were referring to is the explanation by the Gra that the issur of zonah is any hefker biah, so if the panui and penuyah had biah in a non-hefker manner – even if it was not halachically permitted – it is not considered zenus.

      As I discussed above, there is room to be "dan" whether the isur of our mishna is dioraiysa or dirabanan. If one were to take the approach that the isur is dirabanan, then while there may be no isur dioriaysa in all situations of the ba'al sleeping with another woman, according to all 3 shittos noted above, there is most certainly an isur dirabanan. If the isur of our mishna is dirabanan then it is mistaber for the isur dirabanan to be built in such a way, either with a heter or be defnition, excluding a scenario which could lead to isur dirabanan of kdeisha.

      In terms of your second question, here is a clarification of what I meant above. To formulate BS precisely, pshat isn't that there needs to be "any reason", instead, he is of the opinion that there needs to be a reason spurred by an action of the woman he is married to herself. In other words, when she cooks something burnt it is a ma'aseh that she performed which is the reason for divorce. In the situation of a prettier girl, his current wife didn't do a ma'aseh which is the reason for the divorce.

      RA learns that she needs to be the cause of the impetus for him to divorce her. There is a comparative analysis that her husband is involved in. Namely, she, the second women, is prettier then you, my current wife, so he can divorce her in such a scenario lifi RA since his wife is the cause.

      Lastly, assumption of the question all together can be debated. When the mishna says "afilu" it can either be referring back to the initial shitah of BS in both the metzia and seifa or as you are assuming the afilu in the seifa refers to the metzia and the afilu in the metzia refers to the reisha.

      Again, gut shabbos

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  10. we meant there is no doraiysa or drabanan issur for a married man to marry another wife (see rambam peirush hamishna here).

    for RA: its hard to say that your wife is the cause of you finding a more attractive woman. true, you are judging the new girl relative to her, but that doesnt make her the cause.

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    1. Gut vocht.

      After thinking over the best most precise way to formulate the machlokes here are my final thoughts.

      As said above, BS learns the heter applies when the fabric of the kidushin is no longer fully functioning on a halachik plane. Once she sleeps with someone else she becomes asur to her ba'al and he becomes asur to her. Therefore, the chiyuv of "ona" that he haves can no longer be fulfilled. So the heter can be formulated as a dispensation to undo a lacking marriage. Or if we were to define it as an isur BS learns the isur is to break a functioning marriage.

      To formulate BH precisely, he is of the opinion that there needs to be a reason spurred by an action of the woman he is married to herself. In other words, when she cooks something burnt it is a ma'aseh that she performed which is the reason for divorce. In the situation of a prettier girl, his current wife didn't do a ma'aseh which is the reason for the divorce.

      Lastly, RA learns that the current wife must be involved in the decisino making/reasoning of the ba'al in divorcing her. As explained above due to the comparative analysis she is most definitely involved. Note the subtle language chance from "root cause" to "involvement".

      This is assuming one reads the mishna k'pshuto and in a davka fashion. This davka read of the mishna seems to be the way the Bartenura learns. There is a machlokes rishonim though as to how to learn the mishna.
      One of the yungaliet was miorer me the shittas Meiri on the sugya who has a revolutionary pshat. Due to limited number of characters per post view the next comment for the continuation.

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    2. Firstly, I would like to ensure that the reader has noticed I have abandoned the "gzeira like" pshat i offered above.

      Meiri learns BS and RA, as follows. BS learns burnt food is reflective of a wife's attitude towards the ba'al that she rejects his will. RA learns even a prettier woman means "afilu b'lo shum ta'am" - that one can divorce his wife b'heter with no reason whatsoever.

      To formulate, BS is same as above. BH learns heter to divorce wife is when she rejects his ratzon. RA learns there is no isur all together and one is free to divorce his wife at any point even with no reason at all. (Please see Meiri)

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    3. Lastly, RA learns that the current wife must be involved in the decisino making/reasoning of the ba'al in divorcing her. As explained above due to the comparative analysis she is most definitely involved. Note the subtle language chance from "root cause" to "involvement".

      How does the comparative analysis of what's going on the baal's mind make her involved? I mean she is the subject of his thoughts, but she is not involved per se with him comparing the 2 women?

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    4. RA learns there is no isur all together and one is free to divorce his wife at any point even with no reason at all. (Please see Meiri)

      There has to be a deeper understanding of that Meiri when he says "without any reason" because RA in the mishna is bdavka giving a reason for why a person can divorce his wife. In other words maybe the meiri is saying that there need not be a substantial taam for divorce, but I don't think it's possible to read the meiri without rereading what he literally says as "even without any reason" considering that finding a prettier woman is definitely a reason(though perhaps not a substantial one at all-why? Because she didn't do anything wrong, as opposed to BH and BS) Just a thought without looking at the Meiri inside.

      Thanks for the comments.

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  11. Gut Voch. Interesting approach. Interesting Me'eri. We went a different way based upon the methodology in this post. See our next post for our formulation.

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    1. Good morning,

      From a methodological standpoint what did you gain in your approach over the one I offered? Was there a reason you specifically went the way you did or are there multiple possiblities?

      It could be that I am biased since I offered the explanation but in learning isn't the "simplest" approach usually the one we take? Or to say it another way, in analyzing Halacha we try as much as possible not to speculate and to have hechrech for what we say.

      So in my approach I broke things down based on a machlokes rishonim between Teshuvas Rashba vs Kneses Hagedola and then continued to break it down to a machlokes rishonim between Bartenura and Meiri. After proving the din being discussed is either an isur or an eitza tova I went on to define precisely what the isur is based on Bartenura and Meiri.

      Isn't that that the approach to the analysis on a halachik plane? Just curious.

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    2. After thinking over the best most precise way to formulate the machlokes here are my final thoughts.

      As said above, BS learns the heter applies when the fabric of the kidushin is no longer fully functioning on a halachik plane. Once she sleeps with someone else she becomes asur to her ba'al and he becomes asur to her. Therefore, the chiyuv of "ona" that he haves can no longer be fulfilled. So the heter can be formulated as a dispensation to undo a lacking marriage. Or if we were to define it as an isur BS learns the isur is to break a functioning marriage.

      Anonymous,

      You

      To formulate BH precisely, he is of the opinion that there needs to be a reason spurred by an action of the woman he is married to herself. In other words, when she cooks something burnt it is a ma'aseh that she performed which is the reason for divorce. In the situation of a prettier girl, his current wife didn't do a ma'aseh which is the reason for the divorce.

      Lastly, RA learns that the current wife must be involved in the decision making/reasoning of the ba'al in divorcing her. As explained above due to the comparative analysis she is most definitely involved. Note the subtle language chance from "root cause" to "involvement".

      Me

      In RA, as I asked you in the earlier post, how is she involved per se when he is doing a comparative analysis, she isn't doing anything/involved at all, he is the one who is doing the thinking.

      Also when you quote the meiri"Meiri learns BS and RA, as follows. BS learns burnt food is reflective of a wife's attitude towards the ba'al that she rejects his will. RA learns even a prettier woman means "afilu b'lo shum ta'am" - that one can divorce his wife b'heter with no reason whatsoever."

      As I asked above how do u understand the Meiri when he says "even without any taam", when RA is bdavka giving a taam. Also according to the meiri why is the fact that she goes against his will a grounds for divorce?

      I think, if you read my pshat earlier, that according to BH the reason why the woman going against his will is important is because it shows a lack of subordination from the woman to the man, which is the essence of the relationship between man and woman.

      Perhaps when the meiri says "without any taam", he means without any substantial taam, ie because there is a prettier woman. Why is this not substantial? Because she didn't do anything to the husband as opposed to BH and BS.

      I think Rabbi Feder is muchrach because he has a proof from the gemara in yevamos that it is a crime against the commitment against the woman to divorce her without any grounds, and then he goes on to explain the machlokes between on that factor.

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    3. needed another post for anonymous

      Sorry the "anonymous" and the "You" in the begining of the last post were supposed to go before your first quotation.

      You

      As said above, BS learns the heter applies when the fabric of the kidushin is no longer fully functioning on a halachik plane. Once she sleeps with someone else she becomes asur to her ba'al and he becomes asur to her. Therefore, the chiyuv of "ona" that he haves can no longer be fulfilled. So the heter can be formulated as a dispensation to undo a lacking marriage. Or if we were to define it as an isur BS learns the isur is to break a functioning marriage.

      Me

      Why is only them not being able to have biah the only form of a non-functioning marriage. I would venture to say that also when a woman burns the dinner of a husband(if the mishna is referring to a case when it is was done on purpose) is also a form of a non-functionable marriage/lacking marriage.
      Maybe?

      You

      To formulate BH precisely, he is of the opinion that there needs to be a reason spurred by an action of the woman he is married to herself. In other words, when she cooks something burnt it is a ma'aseh that she performed which is the reason for divorce. In the situation of a prettier girl, his current wife didn't do a ma'aseh which is the reason for the divorce.

      Me

      Interesting idea. I just have one question on it: if according to BH the reason for divorce is because she did any maaseh for him to have reason to divorce her, why pick one of the most extreme examples such as burning dinner? Wouldn't it more of a chidush just to say something like, she didn't smile the right way to him in the morning, and that even that maaseh he could divorce her. If the idea is any maaseh, it should be the most mechudashdic. No? Perhaps BH is trying to explain a certain type of maaseh allows for divorce, as the meiri(and I) explained earlier, a maaseh which reflects a lack of subordination the husband. It's not just any type of maaseh, it's a maaseh which is oker the essenceof the relationship which allows for a divorce. What do you think?
      Thanks for the comments.

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    4. Anonymous, our critique of methodology was not because you went through the sugya through the eyes of the rishonim. that was an excellent and proper thing to do. what we criticized, was that we felt that you failed to clearly define the underlying framework in which to understand all 3 shitos (i.e. the role commitment plays in the torah's formulation of marriage). it does not have to be the idea we formulated, but to our minds, that was a necessary step in understanding the mochlokes. we hope that helps clarify. we appreciate the questions as well as the svara's you've been giving.

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  12. Another way to see it is that you tried to define the parameters of the issur without going into the nature and basis of the issur. We first questioned what the issur is based upon and what is its nature(not discussed in the rishonim as far as we know). Is it an intrinsic issur to divorce (based on Kedusha or the like)? It cant be because she can be mochel. Therefore, it must be based upon the commitment to her. Then we pursued the different positions regarding the formulation of the commitment to her, which results in when it can and cannot be broken.

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    1. Good evening,

      Can you please clarify what you mean by "basis of the isur". The two conceptual points in the sugya, as discussed in our back and forth, is step one of what the nature of this din is - an eitza tova, a chisaron in the chalos kidushin, or an isur. Then we discussed in our back and forth the conceptual point of what the nature of the isur is - whether there is a heter or an isur limited in scope. After that point, the last step left on a halachik analysis level is to be magdir the shittos.
      I may be misunderstanding your critique, but asking what the "basis of the isur", heads in to the speculative world of philosophy. It is a fair and interesting question to contemplate, but shouldn't be discussed as part of the halachik discussion.

      While I think that the philosophical theorem of marriage demanding commitment is a true idea and can be proved by Tosfos in the begining of gittin who asks why there are 12 lines in a get and says it represents the 12 blank lines between sefarim of breishis, shemos, vayikra, and bamidbaar. The idea being, that the cheftzah shel torah is b'yesod 5 books joint together to form a new entity called "torah". Kidushin as well, creates an entity, a bond. The bond being severed is like a Torah's books being detached from one another - meaning, there are individual parts joint to form a new entity. Also, see the chinuch in the SHORESH hamitzah of geirushin.

      Tosfos there though, is discussing what 12 lines represent - a philisophical question, which actually brings out a chiddush in how we view a cheftzah shel Torah. THe halachik analysis revolving around lines of a get, discussed by various rishonim, is whether they are a chelek of the shtar etc.

      Here as well, the halachik questions about the isur deal with conceptually how the isur is structured and then the process of being magdir the exact isur. Asking, what the basis of the isur is, is a fair interesting question, which I think you explained in a meaningful and enlightlning way and can be proven as I have mentioned from the shittas tosfos on gittin 2a + chinuch in shoresh hamitzvah, but please help me understand what type of question it is.

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    2. defining the basis of the issur is not a philisophical question. it has halchik nafka mina's as stated in the above post. asking why each position holds their veiw of commitment, or what the benifit of each shita is, would constitue a philisophical question.
      knowing when to stop defining the halacha and any further being philisophy is one of the more difficult skills to aquire in learning. just like any other area, it is subject to the shikal hadaas of the learner. this is what we believe to be halachik structure. we cant, nor do we want to, force that idea on someone else.

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    3. Can we define the terms "philosophy" versus "halacha". I think there is confusion as to what these terms mean when we say them. If we can define them, maybe we'll have a better understanding of eachother.

      In my opinion, philosophy is the perfection of the mitzvah. For example when we are shomer shabbos we through our actions of shmirah recognize that God has dominion over all, and is mashgiach bklal. That is a deeh(apprehension of the intellect) according to the Rambam that perfects the soul. I think Rabbi Feder means that commitment is that lack of commintment is the Halachik basis for the issur. The perfection of the soul gained through committing to your wife is philosophy of the mitzvah.

      Maybe you can coin this question as a halachik "why", meaning why does halacha in a halachik sense have such an idea that you can't randomly divorce your wife.

      What do you guys think?

      Thanks for the comments.

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    4. Sorry for the mistake in the last post: I said "I think Rabbi Feder means that commitment is that lack of commintment is the Halachik basis for the issur."

      Correct version: I think Rabbi Feder means that lack of commitment is the halachik basis of the issur.

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