[Avodah] Having a boyfriend equivalent to being married?

[Micha Berger]

On Thu, December 20, 2007 5:56 pm, Chana Luntz wrote:
:> On Mon, December 17, 2007 7:52 pm, Rn Chana Luntz wrote:
:>: A chazaka in general is a rebuttable presumption.  That is,
:>: we assume something, usually about an existing status continuing,
:>: if we do not have the information to know to the contrary....
:
: And RMB replied:

... not very clearly, obviously ...

:> That is a chazaqah demei'ikarah, which is different in kind
:> than our case, a chazaqah disvara.

: Why is our case a chazaka d'svarah and not a chazak demi'ikara?

This isn't a lack of clarity of my part, but yet another assumption I
didn't realize I was making. Been doing that a lot lately (see my
recent response to RSZ about why Sanhedrin left the lishkas hagazis).

I must apologize for continuing without meqoros. Retaining and hunting
down citations is not a strength of mine.


While the gemara speaks of kesheirim when saying "ein adam oseh
be'ilaso..." the Rambam omits the word. Unless we think it's simple
shibush, it would seem the Rambam is making a point; that being
kasheir is a happenstance in the gemara's case, not an essential
criterion. It is unclear therefore that the Rambam would make this
connection. But the gemara seems to, so I assume someone I am unaware
of does as well.

Perhaps the Ridbaz, who ignored "ein adam oseh be'ilaso" in a case
where the chupah was a chupas nidah and the couple were meyachadim. Or
R' Chaim Ozer, who -- limiting himself to a case of agunah, where a
get couldn't be obtained -- who said the chazaqah doesn't hold where
the man was known to have had pre- and extra-marital affairs.

Neither of these two teshuvos "shtim" with RYGB's take on chazaqos.
But then, for him to hold like the Rambam should come as no shock.


There are a list of such assumptions about man being essentially good,
all of the "ein adam" phrasing -- ein adam chotei velo lo, ein adam
mei'itz panav lifnei baal chovo, etc... I took them to be statements
of human nature, and thus chazaqos disvara. Looking back at that ShSh
(6:22), his example of CdS bemaqom terei uterei is one!

You're right that if the assumptions about being essentially good is a
derivative of chezqas kashrus, that's not as clear. Man is essentially
good, but because we're born that way and we would need to change to
say otherwise. However, if they really are of parallel phrasing
because they're of a kind, there is also "ein adam lomeid ela bemaqom
shelibo chafeitz" -- and for someone within EY whose chosen rebbe is
in chu"l, this has a nafqa mina lemaaseh.

Misevara, it would seem we're making both kinds of chazaqos, not one
or the other: a CdM that the person would still be kosher, and then a
CdS that a kosher person wouldn't behave in a particular manner. I
would think it obvious chezqas kashrus doesn't mean a chazaqah
demei'ikara that he was sinless when we last checked, so assume he is
still entirely without sin. Which means that assuming kashrus is only
enough to compell assuming a tendency, not a reality.

Now to get to my terseness leading to confusion:
: I confess I don't understand this Sheiv Shmatesa.  Two eidim are the
: sina qua non of establishing a change of status - marriage spring to
: mind exactly.  Isn't that the whole point of the pasuk, that by the
: mouths of two eidim the matter is established?

The case is terei uterei. We say it's a safeiq shaqul even in the face
of a CdS. Eidim, and yet a question requiring

In http://www.aishdas.org/book/bookA.pdf I divide the whole world of
safeiq and birur into two, by extending a teshuvas RAEiger beyond his
topic of safeiq (which follows rov) and kavu'ah (kemechtza al
mechtza). In short, once there is human observation (eidim, kavu'ah),
etc.. the din exists, but it unknown. Until observation, it's the
establishment of a din where the safeiq is on the metzi'us. We can
only rely on rov or CdS in establishing metzi'us well enough for
pesaq, not in resolving a safeiq in known pesaq. (All this from RAE
making this chiluq WRT rov and why it isn't a factor in qavu'ah.) I
even argue that terei kemei'ah is part of this same "don't look at rov
once there is an observation".

Physics efficianados: I blame this bit about metzi'us being a product
of observation on halakhah dealing with the world-as-perceived, rather
than saying it's a foreshadowing of QM.

Now, for the above mentioned unclarity:
:> That said, I think that RYBS's position inclines us to say
:> that neither kind of chazaqah is a form of rov.

: You don't need RYBS's position - the gemora in Yevamos that I quoted
: expressly gives a case where the chazaka points one way and the rov
: points another.  The chazaka if a man leaves town childless is that
: his wife is roi for yibum if he then dies....

This is a chazaqah demei'ikarah, I would think.

What I was trying to day, with caps to show emphasis, was: I think
that RYBS's position inclines us to say that NEITHER kind of chazaqah
is a form of rov.

We know that in the case of a CdM, as in the case of the chalaf used
to chop bones, but RYBS would require we say it for a CdS too. So,
when RtCL writes:
:  You seem to have lost your distinction between Chazaka d'svara and
: Chazaka d'mikara here - this is clearly a chazaka dmikara....

I didn't so much lose it as intentionally write that it was not being
made WRT the applicability of rov. That doesn't work with my own
theories, as my extension of RAE requires that if CdS doesn't
influence bemaqom terei uterei, then it can't be on the same plane as
rov. But I think we all agree RYBS needn't buy into one of my
chidushim.

My point was that given the existence of one law of birur that defies
rov, we can't assume that we can dismiss another because today it
violates rov. That only works if we naively assume CdS is just a fancy
kind of ruba deleisa leqaman. Which is why I introduced an alternative
mechanics (laws of nature are assumed to play themselves out).


:>  And thus he
:> could still say tav lemeisav is a law of human nature, even
:> if that law might come into play rarely because of the
:> prevalence of other laws. Or, it could be that he insists
:> that tav lemeisav is true even in rov women today, and the
:> women who think otherwise are just in denial.

: I think he has to be saying the latter. The context in which RYBS made
: his famous statements about tav lemeisiv was to rebut an idea that one
: could use mekach taus as a way of uprooting marriages, on a regular
: basis, that had ended and where the husband was withholding a get.  If
: there is a general principle that a woman really truly wanted to get
: married (even if she subsequently doesn't think so) then there is no
: mekach taus involved.

Either would work. Her testimony, as a baalas davar, doesn't mean
much. So, we're left with safeiq and matters of birur.

First possibility:
We could have a law of birur that regardless of majority, we assume
that she felt tav lemeisav and the qidushin weren't a meqakh ta'us.

Second possibility:
We could have a rov who deep down want the marriage and are in denial,
and thus the qiddushin weren't a mekach ta'us.

SheTir'u baTov!
-micha

-- 
Micha Berger             One who kills his inclination is as though he
micha at aishdas.org        brought an offering. But to bring an
offering,
http://www.aishdas.org   you must know where to slaughter and what
Fax: (270) 514-1507      parts to offer.        - R' Simcha Zissel Ziv