[Avodah] Your brother's a Mumar; here's the solution!

[Zev Sero]

Micha Berger wrote:
> On Wed, Jun 18, 2008 at 01:21:37AM -0400, Zev Sero wrote:
> : >Couples in love sign prenups all the time.
> : 
> : And it's a big question how serious they can possibly be...
> 
> The kesuvah itself is a prenup.

But it simply provides for what will happen after the marriage is over,
as it *inevitably* will be unless "bila` hamavet lanetzach" happens
within the next few decades.  Every marrying couple knows that their
marriage is unlikely to last literally forever, and they must provide
for what happens afterwards.  There are three ways a marriage can end,
and the ketuba provides for all three (if it ends with her death, but
she leaves sons, they will eventually receive her ketuba money).
That's different from a prenup that focuses only or primarily on the
event of divorce, something that he doesn't really believe will happen.

That's why I distinguished this tnai from the AhS's, which is
*exclusively* about the possibility of the husband dying before they
have their first child.  *That* is a possibility every husband can
certainly take seriously; nowadays people buy life insurance for this
precise reason, and they pay good money for it, so they certainly take
it seriously.  It *may* therefore be reasonable to assume that every
man is capable of making such a tnai, each and every time, even in the
heat of passion, and mean it.


> The AhS proposed this idea for avoiding her becoming a yevamah, and RMYG
> asked why the same tenai couldn't be used to avoid agunos. I think what
> RZS is now saying boils down to ein adam oseh be'ilaso be'ilas zenus,
> and not even bitenai.

No.  Ein adam oseh... is about people's yosher.  A person doesn't
leave a chaticha dehetera to take an identical chaticha de'isura.
That's why RMF says it doesn't apply to secular people today, since
it's quite obvious that they think nothing of be'ilat zenut.
But an honest and upright person may very well agree to do a be'ilat
zenut in order to save his wife from a terrible fate.  Ein omrim
la'adam chatei bishvil sheyizkeh chaver'cha, but he may well be willing
to do so, especially when it's not just chaver'cha but ishto kegufo.
The AhS's position isn't muchrach, but at the same time it isn't
mushlal.


> I think this latter formulation is more tenable than his earlier post
> which presumes a young couple in love. Using Shalom Aleichem as a cultural
> source, he found it plausible to tell an audience of the AhS's day that
> (as the songwriter later put it) "the first day I met you was on our
> wedding day..."

And yet I think even those couples were in love; at first not with the
actual person they were marrying, whom they didn't yet know, but with
the *idea* they'd formed of that person.  They knew each other's names,
even if not their faces, and I assume they did hear general descriptions
of each other's appearances, on which they could hang their fantasies
of what married life would be like, so by the time they actually met
it's quite shayach that they felt enough love that they didn't go into
it like a cold business transaction, with the possibility of divorce
looming high in their minds.   Especially if they didn't see a lot of
divorces around them, so that possibility was mostly theoretical in
their minds.  


> is trying to save her from someone he believes could really keep her an
> agunah -- his meshumad brother would would never consent to yibum.

You mean chalitzah.  Yibum he might very well consent to, or even insist
on, but that's precisely what the husband wants to save her from.


-- 
Zev Sero               Something has gone seriously awry with this Court's
zev at sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas