[Avodah] Just what ARE the rules of p'sak anyway?

[Yitzhak Grossman]

On Sun, 25 Nov 2007 16:18:25 -0000
"Chana Luntz" <chana at kolsassoon.org.uk> wrote:

> I wrote a bit inelegantly and totally unclearly the other night:
> 
> > Nor should you, it doesn't make sense.  What I realised I had 
> > done in the paragraph was conflate the two kinds of afkinu.  
> > The one that might be able to be used in the case of a frum 
> > couple who seemed to have a perfectly normal marriage until 
> > things go wrong and he starts refusing to give her a get.  
> > And the second of a non frum couple, where it can be shown 
> > that - eg they or he had no intention of keeping taharas 
> > mishpacha.  If such a person then starts refusing to give a 
> > get, there are arguably other weapons in the armory.  I have 
> > not read Rav Moshe's teshuva effectively and in blanket form 
> > annulling Reform and Conservative marriages, but at root that 
> > seems to be a form of afkinu.
> 
> The teshuva I was thinking of but couldn't recall exactly was Iggeros
> Moshe, Even Ha'Ezer chelek 4 siman 13, particularly si'if 4.  See the
> way he dances around afkinu without directly saying it.  But that seems

I don't see any hint here to afke'inhu.

> at root to be what is being done here.  Rav Moshe cannot eliminate the
> possibility that there were kosher witnesses, and while there are all

Agreed.

> the kat arguments, basically what seems to be going on is that the
> wedding has been held in such a way that it is not k'hogan (look at the
> way he uses this term) and in a context that is not k'hogan, and that is
> what makes it invalid.  In a sense, therefore, I think afkinu is

I disagree with your reading; on the contrary, the "she'lo ke'hogen" in
question is apparently a technical infraction of the rules of
kiddushin.  Rav Moshe's basis for the suspicion of "she'lo ke'hogen" is
the "Rabbi's" [the quotes are my rendering of his transliteration of the
non-Hebrew term "Rabbi" into Hebrew] ignorance of or disregard for the
laws of kiddushin, and the example he gives of a possible "she'lo
ke'hogen" is an exchange of rings, yielding an ambiguity over the
intent of the participants as to the actual "ma'aseh kiddushin".  Once
again, I see absolutely no allusion whatsoever to afke'inhu.

[snip]

> Now I agree it is quite a leap to go from uprooting conservative and
> reform marriages to uprooting Orthodox ones, just where the couple are
> only doing it because that is what is expected, and not because of any
> commitment to Torah.  But it is a lot less of a leap than going from a
> situation such as the DM described.

According to my reading of the responsum, your suggestion is much more
than a leap;  the leniency is totally inapplicable to kiddushin
administered by an Orthodox rabbi [sans quotes / transliteration], who
has presumably overseen that they have been done correctly.

[snip]

> > > Yitzhak
> 
> Regards
> 
> Chana

Yitzhak
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