[Avodah] Kiddushin and Bigamy

[Zev Sero]

On 7/12/2010 10:22 AM, Hankman wrote:
> Given your current response to me, your previous response ("It makes
> sense to me that "das moshe veyisrael" means the law of *all* yisrael,
> not including local takanos of recent vintage and set to expire soon,
> which is what R Gershom's cherem was at the time. ") is simply a red
> herring and not relevant as even without these points, you now argue
> that the kedushin would be chal.

> You also wrote: "He wasn't to know that it would spread to the majority
> of Jewry, and be made permanent by minhag."

> You seem to be soser the idea you espouse in your reply to me. What
> difference would his knowledge of future acceptance make, as you argue
> in your reply to me in "getting back to basics."

Please reread my original response. I made two points: 1) I'm skeptical
that R Gershom could, or at least would have felt that he should, give
his takanah such an extraordinary chizuk as to annul any marriage that
defies it. 2) Whether he could have done so or not, the fact is that
he didn't.

Perhaps, had he known that his little local regulation would turn into a
major and permanent part of halacha for the majority of Jewry, he might
have added such a chizuk to it. Or perhaps he wouldn't have, even with
that knowledge. But the fact is that he didn't have that knowledge,
and therefore I strongly doubt that the thought ever crossed his mind.
At any rate, we know that he didn't do it, so the whole question is moot.

Your position, on the other hand, seems to be that any kiddushin that
violates a rabbinic law is automatically invalid, without the need for
a specific rabbinic takanah to that effect. If that were so, then it
wouldn't matter what R Gershom did. But I don't think that's tenable,
because if so rabbinic laws would be stronger than Torah laws, since we
know that many marriages that violate explicit Torah law are still valid.

> While in your response to me you make a valid point, in that clearly
> not every kidushin b'issur is batel adatei d'rabanan, eg., cohen who
> marries a gerusha etc. So we now need some very clear guidelines as to
> which cases are included in "daas Moshe v'Yisroel." We now need to ask
> whether nidan didan would or would not be included. I am not suggesting
> I know the answer, just that it is a valid question in my mind. But if
> you definintely feel that nidan didan is not included under "daas Moshe
> v'Yisroel," then you need to explain under what set of guidelines you
> came to this conclusion.

My position is that I reject the whole idea that a marriage that is
contrary to "das moshe veyisrael" is invalid. I don't know where such
an idea can be found. AFAIK the source for your idea is the gemara in
Gittin, which says that "kedas moshe veyisrael" is equivalent to "ada`ta
derabanan". But all that means is that the rabbanan are *able* to say
"no" and invalidate the marriage; not that they have to, let alone that
their disapproval automatically invalidates the marriage without their
saying anything at all!

Let's forget the complications of R Gershom's situation, and instead
consider laws of Chazal, which are certainly binding on klal yisrael.
The rabbanan definitely disapproved of anyone who is mekadesh without
prior arrangement (aka "shiduchin"). They made it very clear that this
is pritzus, and forbidden, and anyone who does so gets makas mardus.
Could they have gone further and said that such kidushin are invalid
because it's on their da`as and they say "no"? Of course they could.
But did they? No, they didn't. And therefore to this day such a
kidushin would be valid, and after his makas mardus the chasan can go
back to his kallah and live happily ever after.

-- 
Zev Sero
zev at sero.name