[Avodah] Halachic who is right from "The Lost Scotch"

[Chana Luntz]

RMBwrites:

> On Mon, Mar 19, 2007 at 11:34:54PM -0000, Chana Luntz wrote:
> : First of all, and only being slightly cute here - at the 
> time that this
> : all occurred, Yehoshua was already married to Devorah and 
> ishto k'gufo.
> : Yehoshua may have been surprised by the appearance of Chaim 
> ben Zundel,
> : but the Yehoshua/Devorah combination was not.
> 
> I think this is meaningful, and wish you hadn't stated it so 
> cutely. It deserves serious consideration.

I think you are missing my point here.  While I agree with you that we
need to look at the combination and not ignore the effect of the kala
(which is why I referred to the derech of Devorah later in that post) -
the question that this particular piece raises is whether the fact that
they were married made a difference.  Ishto k'gufo is a technical
halachic term which results in real halachic differences in psak.  But
in this case, should the fact that the story occurred half and hour
after they were formally man and wife, rather than half an hour before,
make a difference?   Some of the concern expressed here has been about
the use of technicality rather than more general moral principles.  But
that criticism works both ways.  If one does not want to look too
closely at the technical halacha, morally it should not make a
difference that they were formally man and wife at this point.  They did
not in reality know each other any better than they did a half an hour
ago.  That is why I phrased it the way I did, I was using technical law
to answer technical law.

But in general I think some of the critism of what the book is trying to
do is misguided.  In this particular case, I do not agree with the
analysis of the applicability of the si'if in the Shulchan Aruch.  But
it is very normal to have a system of technical law onto which is
layered more moral (and yet legal considerations) - the common law
system works exactly this way, with its division between law and equity.

For the last couple of days I have been hoping to respond to the last
point in RMK's post about middus chassidus, which in this case is
probably more correctly called lifnin meshuras hadin - but have not had
a chance, and as I have a very wriggly baby on my lap at the moment, it
is not going to happen now, maybe tonight.   Not that I think you need
it in this case, but it is arguably the equivalent of equity (especially
if you follow the side of the machlokus brought by the Rema in Hoshen
Mishpat 12;2 that a judge can impose lifnin meshuras hadin).  But you
need to know law first before you can apply equity correctly, and the
same here.

The other factor you need to bear in mind is that in general, in matters
of contract, local law and custom will prevail, so that in this
particular case, if it occurred in America, American contract law
probably governs, making it even more theoretical.  That is why,
espeically given the general level of ignorance of this area of halacha,
I suspect that any contribution is likely to have value in generating
debate.

Regards

Chana
>