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Monday, February 13, 2012

Grounds for Divorce? (Part 1: The Facts)

The mishna on Gittin 90a states:
בית שמאי אומרים לא יגרש אדם את אשתו אלא אם כן מצא בה דבר ערוה שנאמר כי מצא בה ערות דבר ובית הלל אומרים אפילו הקדיחה תבשילו שנאמר כי מצא בה ערות דבר ר' עקיבא אומר אפי' מצא אחרת נאה הימנה שנאמ' והיה אם לא תמצא חן בעיניו
Under what conditions is it permissible for a man to divorce his wife? (The divorce works, regardless of it's permissibility).
Beis Shammai: Only if he finds ervas davar (some sexual misconduct - she sleeps with another man...)
Beis Hillel: Even if she burns his food
Rabbi Akiva: Even if he finds a prettier woman

The gemara explains that this dispute is based upon a reading of the following verse in Devarim 24:1

כִּי-יִקַּח אִישׁ אִשָּׁה, וּבְעָלָהּ; וְהָיָה אִם-לֹא תִמְצָא-חֵן בְּעֵינָיו, כִּי-מָצָא בָהּ עֶרְוַת דָּבָר--וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ, וְשִׁלְּחָהּ מִבֵּיתוֹ
When a man takes a wife and is intimate with her, and it happens that she does not find favor in his eyes because he discovers in her an  ervas davar, and he writes for her a bill of divorce and places it into her hand, and sends her away from his house
Beis Shammai explains that the passuk clearly specifies that the grounds for divorce are ervas davar.

Beis Hillel argues that since the Torah did not just say “ervah” but “a matter of ervah”, we can conclude that a man can divorce because of (a) ervah or (b) a different matter.

Rabbi Akiva argues that the verse should be read as choices: either (a) “she doesn’t find favor in his eyes” or (b) “he finds in her an ervas davar”. Therefore he can get divorced even if she doesn’t find favor because he finds a more beautiful woman.

What is the svara (conceptual underpinning) for this disagreement?

More significantly, our first step should be trying to approach the problem methodically. What questions can we ask that will help guide us towards a svara?

46 comments:

  1. This project is a phenomenal idea and I really hope that it takes off.

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  2. BS and BH think that the wife must do something against the husband to make the divorce legitimate but RA argues that either she must do something negative, or she did not do enough (lack of doing something that she should have done?)

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  3. How does Rabbi Akiva read the word כִּי in כִּי-מָצָא בָהּ עֶרְוַת דָּבָר? It appears to me to restrict the pasuk to be read either as BH or BS does, as a description of אִם-לֹא תִמְצָא-חֵן בְּעֵינָיו.

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  4. good first step for BS and BH...but its seems hard according to RA to characterize a husband finding a more beautiful girl as a lacking in his wife

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  5. Great q Daniel. The gemara explains that the word "Ki" has 4 different meanings. BS and BH translate here as "because", whereas RA translates it here as "or". It's not that enlightening as to their svaras, but that's the pshat.

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  6. Matt A. FraidoffeministsFebruary 13, 2012 at 6:50 PM

    At first glance, I think the whole issue here is hard to understand. In a certain sense we say that the woman is like the man's kinyan - so why can't he just wake up one day and decide he's tired of being married and toss her out?

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    1. great question matt...it would seem that we have to answer that question first before going much further

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    2. Seems to me that there is a kinyan made of certain rights of hers though not of her person in toto (for example he may get a derivative benefit of nikhsei milug but does not outright own it). There is a contractual agreement made between he and she about the nature of those rights of hers which he acquires. Accordingly without a breach of the terms of the contract (be it explicitly in the written contract or implicit by means of halakha) then there ought not be grounds to just willy nilly dissolve the contract.

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    3. Good approach AAK. Try to use this approach to develop a full svara for the machlokes.

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  7. First steps could be trying to feel out/intuit which positions ally best with one another... I could see why at first glance one might want to say that RA is closer to BH than BS and BH are to one another, though I think it breaks down otherwise.

    Very descriptive/tentative but this is how I might sketch it. Seems like BS holds that it is restricted to a woman's actions which violates the very fabric of the marriage (kedusha, trust, however you put it). BH holds that it is restricted to a woman's actions which betray a damaging attitude towards the marriage (willful negligence whilst partaking of spousal duties, engaging in behaviors which will naturally disrupt the harmony of the home). BH is thus a more encompassing category than BS which it necessarily includes. RA seems to restrict it to the low barrier of an accident of her existence as subjectively perceived to be a defect in the man's eyes.

    So you can place BS and BH on one side where it is about actions of the woman and RA on the other where it is about the nature of the particular man (i.e. his idiosyncratic psychological complex, that is a pigam in him not her).

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    1. it's generally good to try to break up a 3 way machlokes into 2 steps...RA position is still a little vague, even as a description

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    2. AAK,
      We do know that the man has certain obligations to the wife (e.g. sha'ir, ksus, onaa'a) but I don't believe that there is a specific obligation for the woman to partake in "spousal duties". Certainly, these actions make for a more successful marriage but if they aren't obligations expressly written in the Torah, how can we fault her for negligence in such a matter?

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    3. Thanks for that source, very interesting halachos. I am still don't fully understand how these things, which appear not to be M'dioraysa, can effect the allowance of the man to give his wife the divorce. Unless the claim is that these duties are somehow really obligated by the Torah.

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    4. MS. See Ishus 12:1-3 and then read beginning of perek 21. These seem to come under ma'aseh yade'ha - derabanans

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  8. I am wondering if BS and BH hold there is a specific lav related to unjustified divorce, whereas RA rejects such a lav (which reminds me of Matt's question). It's hard to construe "נאה הימנה" as justification.

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    1. I hear that it's a hard justification.
      Good idea, but I don't think there is such a lav.

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    2. Now that I've had a chance to look at the gemara it seems clear that there is no lav. From Rav Pappa's question to Rava and the following gemaras it seems that the entire mishna is in the realm of aveira in midos--there is no nafka minah l'halacha (except, perhaps, for Rashba who I see quoted in the Rambam Laam who holds that the reason there is no brakha in geirushin is b/c there are divorces that occur b'aveir--as in a case where the man only divorces his wife b/c he hates her). Perhaps this is why Rambam says in Peirush HaMishnayos that the halakha is like BH, but then he cites BS l'halakha in the Yad.

      As for sevara, I would add that BS seems to hold that unless there is "mitzvah l'garsha" there is aveirah.

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    3. it's hard to say it's not a halachic machlokes, especially when the different positions are derived from psukim...also, the gemara has a hava amina that he actually would be obligated to get remarried...finally, mutar or assur is itself a nafka mina

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    4. we dont believe the rambam contradicts his psak in the yad...if he paskined like BS (which itself would be a problem), how could you divorce your second wife if you simply dont like her?

      it's an interesting approach for BS. but why isn't there some middle ground? (not a mitzva but not an issur)

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    5. Yes, it does seem like a halakhic machloket. However, an aveira in midot is still an aveira. However, perhaps I should phrase it as a question: "What kind of issur is the mishna discussing?" Though R' Pappa had the hava amina that there would be a halakhic consequence to a geirushin b'aveira, the maskana is that there is none whatsoever. That is why I leaned toward calling this an issur in middot/deot. I, of course, am open to a different solution.

      As for your second point, do you not believe this based on principal or based on your interpretation of the Rambam? Though I am hopeful for a way of interpreting the Rambam that would remove the problem, on the surface he does seem to pasken like BS in the Yad.

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    6. it would seem that according to BS, a man could not divorce any wife because he hated her, first, second, etc. in so far as the rambam holds that a man could divorce his second wife if he hates her, he would seem to be not like BS

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    7. Yes, but, is he following BH? It seems not. And, are you sure that BS would hold this for a second wife as well? I'm not sure. It would be very useful to understand the difference between 1st and 2nd wife. Based on R' Yehuda and R' Elazar on 90b, who quote a p'sukim from Malakhi as the source for the difference between 1st and 2nd wife, it seems this is not a simple "halakhic" issue (of course, deot are halakha as well).

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    8. I hear your point about Malakhi. With this in mind, it seems simpler to assume he paskins like BH (as we always do and as he says in the PHM), but holds that even according to BH, it's bad in terms of daos to divorce first wife. But the machlokes between BH and BS is an across the board halachik machlokes which applies to all wives equally (mishna doesnt differentiate).

      Your posts as replies are fine. It helps keep things organized and we can view them by time.

      Glad you are having fun. So are we.

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    9. Yes, the choice of p'sukim and the fact that that b'raisa is brought in the midst of what we normally call aggada (and the fact that this is the end of the m'sekhta) makes me think this halakha is a kind of deot hybrid. It's also interesting the Rambam embeds this halakha in between "לא יישא אדם אישה, ודעתו לגרשה; ולא תהיה יושבת תחתיו ומשמשתו, ודעתו לגרשה." and "אישה רעה בדעותיה, ושאינה צנועה כבנות ישראל הכשרות--מצוה לגרשה, שנאמר "גרש לץ, וייצא מדון" (משלי כב,י). ואישה שנתגרשה משום פריצות--אין ראוי לאדם כשר שיישאנה, שאין זה מוציא רשעה מביתו וזה מכניסה לתוך ביתו." These are all דברים המסורים ללב. It's hard to know if R'Yehuda and R'Elazar are arguing on the mishna (as an interesting aside, they were 2 out of 5 of R' Akiva's famous students שבדרום).

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  9. The idea of אפי' מצא אחרת נאה הימנה in a pre-Rabbeinu Gershom era seems like it ought be an irrelevant factor that I don't understand. His pursuit of another woman is not intrinsically delimited by his current marriage. So how is this potential 3rd party a relevant factor? Is it possible that the intention is that he has a prospect on the horizon and that his first/current wife objects to his acquisition of another wife and that it is her objection that is the grounds for the divorce?

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    1. that would be reading quite a story into RA...the Rambam says in perush ha'mishna that RA position is pushed off for that very reason (that he could just marry the second wife in addition to the first)...we could not find the source for the Rambam

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    2. Yes, it rather admittedly does require reading a bit into RA... but thanks for bringing the Rambam's peirush to my attention on this :)

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  10. RAZ/REF:

    Can you provide a couple points of clarification? (I haven't looked into the mefarshim so perhaps they take this up).

    1) Regarding RA's position, my initial assumption was that he holds that one does not need an actual objective justification to divorce his wife, but rather he can do so simply out of personal preference. (But from the Rambam in his Pirush Hamishnayot that doesn't seem to be the case). What is your understanding of this point?

    2) Regarding BS, would you say that they hold that the husband's accusation of adultery must be formally proven in beis din order to justify divorce? If so, then wouldn't she simply be killed (or at least have to undergo the sotah process) rather than get divorced? If not, and the justification for divorce is simply based on the husband's say-so, then doesn't that reduce BS's standard for divorce to one based on the husband's subjective suspicions and not on any objective criteria?

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    1. 1) we agree with how you initially understood RA. Truthfully, we don't really understand how the rambam knocks off RA without the support of a gemara.

      2)the yerushalmi explains BS position in more detail. see top tosfos in sota 3a (he requires witnesses and expands it to other licentious deeds)

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  11. All argue that there must be grounds for divorce- husband cannot throw wife out for not reason. BS and BH hold that (wife) breaking the contract that husband and wife made when they married are grounds for divorce, while RA might say that the contract was not valid to begin with (husband not fully satisfied with what he got) and that is also grounds for divorce. BS and BH seem to argue about what constitutes breaking the contract.

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    1. good approaches for BS and BH. see if you can take it further...its hard for RA to say that finding a prettier girl invalidates the first contract.

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    2. Normally husbands do not leave wives because they meet a more attractive woman- there must be a deep dissatisfaction with the wife in order to do that, and that dissatisfaction, might be enough for RA to say that the original contract is invalid.

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    3. Although that is one possible psychological interpretation of his desire for divorce, there can be others. Also, it seems hard to say that this deep dissatisfaction can render the contract invalid.

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  12. I would like to be able to give credit to the people who post their svaras in this blog, therefore, please post your name, or tell me who you are.

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  13. Just wondering if you are able to notice when I post a response way up there or if it is better to post it at the bottom when the thread has progressed. Also, I wanted to thank you for setting this up--it is great fun!

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    1. we see it...we can view the comments in chronological order of their entry

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  14. Following up on my question from before, maybe one would argue that the reason why a man can't divorce his wife on a whim is because that's simply not the nature of the institution of marriage. Marriage is a certain life-long relationship that two people have entered into. In fact, with regards to marriage, the phrase "until death do us part" is a common one. A man can't toss his wife out because implicit in the relationship he has decided to enter is the idea that even if he is very upset with her they remain a unit. Given that the relationship of marriage itself presents an issue with respect to divorce, perhaps BS and BH hold that there must be a breach in that relationship if the man is to gain the ability to divorce his wife. That is, the intact marriage relationship is one that presents the problem of divorce but if there is a severance in the relationship then the problem dissolves. As to the machlokus between BS and BH, I think it is first worth noting that there are two spheres in the realm of halachik marriage, ishus - the first is the social, interpersonal relationship between man and wife, while the second is the halachik status of their union. Maybe the argument between BS and BH hinges on which of these spheres does the idea that marriage is a life-long commitment stem from. BS holds that the halachik status of ishus contains this idea of commitment and in general will prohibit a man from divorcing his wife. Therefore, he requires an objective break in this halachik status, which can really only be brought about by her sleeping with another man, if a man is to divorce his wife. However, according to BH the idea of commitment is a product of the social, interpersonal relationship between man and wife. Thus, he does not demand an breach in the objective halachik status of ishus it suffices if there is a break in their interpersonal relationship. This can be achieved, for example, if she burns his food since the fact she cooks for him is a part of their social relationship although it has nothing to do with their halachik one.

    I'm still trying to flesh out what exactly RA says to all of this. Does he deny the fact that the nature of marriage is a life-long commitment? If not, does it find expression elsewhere if not in the halachos of gerishin?

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  15. excellent thoughts about BS and BH. in the next post we're going to use a similar chiluk, not as the definition of the machlokes, but rather as laying the foundations of the sugya.

    as regards to RA, you said it perfectly. he seems the odd man out.

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  16. Sorry for disrupting the flow, but I just wanted to clear something up. Several people have asked me whether I (Matt S.) am the one who has been posting as "Matt A. Fraidoffeminists" or "Matt." The answer is: NO. I will only post as Agur bin-Yakeh.

    Back to your regular programming . . .

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  17. I'm a little late to the party here and while part 2 is well underway, I wanted to comment here since I don't want to skip ahead.

    I was thinking along these lines originally that BS and BH break down on one side and RA on the other. However, after reading a few ideas here, I think I might buck the trend and group BH with RA.

    It seems to me the question is whether the violation of marriage must stem from the objective framework of marriage (ie kiddusha, ishus, etc) where a violation such as an affair or other davar ervah breaks the essence of the marriage (BS).

    On the other side, the machlokes is on the subjective side. Marriage is a union entered into by two people who share a common value and goal. It has certain rules regarding what is and is not allowed (issurei biyah, etc). It has certain rules about what is required (onah, etc). So the machlokes is what subjective criteria is sufficient to dissolve this union. Is it simply enough to find someone else more attractive and therefore you want out in order to pursue that person (RA)? Or do you require a reason that stems from the marriage itself and the arrangements that are part and parcel of the institution (laundry, dishes, cooking, taking out the garbage, etc) (BH)? Meaning, that these are all subjective "requirements" of the relationship. In different marriages people have different responsibilities. So a violation of the responsibility doesn't negate the essence of what the marriage is (again, BS) but negates the subjective aspects of it. Therefore, BH wouldn't side with BS and as a result, it's easier to understand why they use the same part of the pasuk without having to account for the other side's use of it.

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  18. Good thoughts Merm. I think that in order to concretize your svara, you must address the all important question(Matt's) of: why can't the guy just end the marriage because he wants to? What is the framework within which your 3-way question of what dissolves the marriage is meaningful? (see next post for more discussion of this point).

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    1. I thought we don't ask why questions. :-)

      I would say the Torah has a vested interest in marriages staying intact. There are many things revolving around family from yerusha to kehuna, etc. Knowing a familial lineage is important. The Torah views marriage as a stabilizing factor in a person's life and in society. "Al ken yaazov ish... levasar echad" is that a man clings to his wife and becomes a new person with her. However the Torah recognizes that sometimes that situation changes and it becomes an intolerable situation for the people involved. Therefore it allows you to leave the institution rather than to be miserable.

      So when does the Torah allow that is the focus of the machlokes. Does it require you to stay in it unless the kedusha of the institution is violated? Or does it allow you to leave when it's psychologically harmful for you to stay in it?

      Generally speaking, I believe the Torah forces a person to hold off on impulse actions and requires you to use your mind. The process of giving a get comes to mind as one example. Kashrus where you can just run and grab a snack before deciding if you're milchig or flieshig. The Torah requires you to do the same before getting divorced.

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    2. Good approach. However, the halacha mentioned in part 2 post which says that if the woman agrees, then it's ok, seems to go against this. This is why we rejected (a) and went with (b).

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    3. Is the halacha part of the outcome of this machlokes? The halacha seems to reject BS's view.

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    4. see the tread above 'Yehuda Feb 13, 2012 04:48 PM' where we discussed this issue

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