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Saturday, February 18, 2012

Grounds for Divorce? (Part 3: The Svara)

We’ll start off by trying to understand the difference between Rabbi Akiva and the other two positions.

Since we determined last time that the problem of an unjustified divorce is based upon his commitment to her, let us analyze the nature of this commitment and of commitments in general. Conceptually, there are two different types of commitment:  
(a) a commitment to the integrity of the maaseh (act) one is doing;  
(b) a commitment as a binding obligation that is created when one commits to something (viewing a commitment
as a cheftza, an abstract entity).


For example, consider one who buys an item from a store with a fairly liberal return policy. (This policy allows you to return the item under any conditions, including finding a different item that you like better). Despite the policy, one who buys from such a store must still have the good will of intending to keep the item.  If he buys it with the intent of returning it after using it once, that would violate the good will assumption between the parties in the very nature of the act of purchase.  He is being deceitful in that he is presumed to be purchasing the item, when he is in truth borrowing it. (Note: This example is for illustration of an idea - whether a particular store allows or does not allow for such a behavior, and certainly cannot prove and enforce it, is not relevant). The commitment of a buyer in this store is of type (a) - a commitment to the integrity of his action of buying. Assuming he bought it in this proper manner, there is no lasting commitment to keep the item in the future. He has full rights of return.

A different store might have a more stringent return policy. (This policy only allows you to return the item if it is defective).  Buying the item in this store creates a lasting commitment on your part, to the purchase of this item (type (b) commitment).  Only if the item fails to meet the initial assumptions of the purchase is it permissible to return it.

With this introduction, let us turn to our machlokes. Rabbi Akiva understands marriage as demanding (a) - a commitment to the integrity of the act itself.  If one marries a woman, he must be sincere in his intent of a life-long relationship.  If he has in mind (without her knowing) to divorce her soon thereafter, he is acting disingenuously and is in violation.  However, according to RA, no underlying commitment is created by his actions.  If he finds a prettier girl after he is married, such that he is no longer happy in the marriage, he is free to end the marriage with a divorce. (It would seem that, for better or worse, American society has “paskined” like RA). This explains why any seemingly trivial reason suffices for RA. Any reason that comes about after the marriage started, shows that the act itself of getting married was a genuine act.

In contrast, Beis Shammai and Beis Hillel both maintain that getting married creates (b) - an underlying commitment to stay married for life, unless the woman fails to uphold her end of the deal.  The machlokes between them is about what constitutes such a failure.

It is worth pausing here to see if we are able to define the disagreement between Beis Shammai and Beis Hillel in light of this new framework.

8 comments:

  1. This is a nice idea. Some thoughts on BS/BH question:

    As hinted at in the above post, it seems that implicit in the concept of commitment to an object is the idea that only if the object is not functioning in the appropriate capacity can the commitment be voided. For example, if I bought an electric tea kettle at the (strict return policy) store, it would be ridiculous for me to attempt to return it on the grounds that it could not microwave food for me since that is simply not the nature of the object. However, if I were to return a tea kettle on the grounds that it doesn't boil water that would seem rather reasonable.

    Moving from store items to marriage, it would seem that essentially the institution of marriage is one where a woman is meyuchad to her husband for biah. That being said, marriage also contains the secondary component of a social/interpersonal relationship between man and wife. Somewhat descriptively, I would say that BS is holding that there needs to be a breach in the essential nature of the relationship while BH is holding that even a breach in the secondary component suffices. This obviously needs some further definition.

    I think that there is an analogy to this situation in the store example. Suppose I buy a tea kettle that is supposed to whistle when the water boils and let us further imagine that the tea kettle succeeds in boiling water but does not whistle. Would you say that I should be able to return it? I could see going both ways. On the one hand, the tea kettle functions in its essential capacity - namely, it boils water. It's true that it doesn't whistle but that is really a secondary feature and not a reason to allow a return. On the other hand, someone may really feel that the product is defective since it cannot whistle as advertised and thus a return is justified. I think that if the intuition behind the above two sides can be defined then it may be possible to carry over to the BS/BH question.

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    1. Matt

      Look at my post in the earlier segment, I had the same idea as you in BS. I think the description you have of marriage(social/interpersonal) is conceptualized in my understanding of BH. I was also masbir RA in a similar( I think) light.

      Thanks for the comment.

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    2. Good approach. I think BS is hard though. Any store would take back the tea kettle...

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    3. Not the conceptual tea kettle stores that I go to. Just kidding - I hear the point.

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  2. From the first post:

    (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.

    What is this kedusha in kidushin. I thought the reason why it is called kidushin, is because she is seperated, not because there is some sort of halachik kedusha in the relationship(other than the fact that they can't cheat on each other)

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    1. Bracha of Kidushin is "mekadesh amo yisrael al yedei chupa ve'kidushin". See Rambam first few halachos in ishus. The institution of Kiddushin takes marriage from the model of before matan Torah and imbues it with kedusha- it is now grounded in kinyan and all the sugyos in kiddushin that come with it. One could've argued that this institution does not allow for divorce without good justification.

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  3. Methodology question: When a three-way machlokus is broken up into a main machlokus (between 1 side and 2 others) and a sub-machlokus (within the 2 sides) do you guys advise tackling the main machlokus first, as you've done here? This does seem reasonable since if the main machlokus can be understood then one has a framework within which to work for the sub-machlokus.

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