[Avodah] : Re: Kofin Oso

[Chana Luntz]

I wrote:

> > Note also that from a straight reading of the maskana gemora, there
> > is ultimately no requirement of beis din to be the one forcing, just a
> > Jew rather than a non Jew (although in the hava mina there is, since
> > there is clearly only a mitzvah to listen to the Chachamim if they are
> >genuinely Chachamim)
> 
> How so?  How is "tolah atzmah beviryonim" any better than "biydei
> akum"?
> The undesirable result is the same, "mafka'as atzmah miydei ba`alah".

Most people appear to link Rav Mesharsha's concern to going to arkos ie
l'fnehem vlo l'fnei akum.  With a yisroel hediyot there is no such concern.

Note this is all according to the Rambam - since we started off by
discussing the Rambam's understanding of rotze ani.  And further as
explained by the Kesef Mishna/Beis Yosef who understands the Rambam to
priorise this gemora over the one that I quote later in this bulletin (ie
Gitten 88b)) and to posken like Rav Mesharshia and say that a get produced
from force of a non Jew if the din notei is "posul", ie invalid d'rabbanan,
but valid d'orisa and not "ano get" which would mean it was invalid d'orisa.
Note by the way the big nafka mina (which is also of key relevance to the
case which started this all off).  If a get is only pasul d'rabbanan, while
a Rav will not let her remarry l'chatchila, if she did remarry "lo tetze" ie
they will not force to to leave and the vlad is kosher.

Of course the majority of other rishonim posken like the gemora in Gitten
over the gemora in Baba Basra, especially given the strong language of the
rejection of Rav Mesharshia there and hold that as non Jews are just not
involved in matters of gitten, any involvement (except just hitting him and
saying do what the Yisroel tells you to do) completely invalidates the get
d'orisa.  

> BTW, thank you for citing this gemara, I've been trying to recall where
> I'd seen it, because it's a major part of the source for the position
> I've been advocating here, that a woman is not entitled to a get just
> because she wants one.  Here the gemara says it explicitly; that the
reason a
> get me`useh is pasul is so that a woman who wants out of her marriage
> should not be able to simply hire goons and force her husband to divorce
her.

Nobody is saying that she is entitled to a get just because she wants eg to
go off with somebody else.  What is being said is that, if she finds having
relations with him repulses her, she is entitled to a get.  That does not
mean she can go off to the non Jews and get them to arrange matters even if
she is entitled to it.  And note, this is as true of any of the crystal
clear cases in the gemora where a get can be forced, eg a muke shchin. Even
though she is absolutely according to everybody entitled to go to beis din
and demand a get, she cannot hire non Jewish goons and beat it out of him.
That get would be just as posel.  


> Now if BD were able to force any husband to give a get just because his
> wife wanted one, then why would it occur to any woman to go to the
> akum?
> She could go to beis din and get the same result!  Obviously a BD lacks
> the power to order a get in ordinary circumstances;

There are several leaps in logic here. 

Firstly, while most people see a large spectrum between "because his wife
wanted one" at the one end and "where the marriage is objectively determined
to be one that no reasonable woman could put up with".  Your assumption is
that there is no middle ground.  Once middle ground is acknowledged, then
wherever Beis Din sets the bar on the middle ground, there will always be
situations where the woman will get no benefit from going to Beis Din.

Secondly your assumption is that there are no disadvantages to a woman (or
anybody) going to beis din due to beis din procedures and evidentiary
requirements.  So long as beis din operates as a court system, requiring
evidence (and possibly the attendance of, or the ability to find the other
party) there will always be an advantage, were it to work, to hiring a goon,
as that can be quicker, easier and cheaper (and can search the man out, even
in different countries, as we have seen).  

Thirdly there are often other advantages to using a non Jewish court system
(or even non Jewish goons), such as monetary divisions etc even if the get
was not an issue (as we see in many cases today where the get itself is not
contested but where there is a preference to go to non Jewish courts).  Were
the get not required to be in beis din, a lot of the leverage that the beis
din has in dealing with other aspects of the divorce disappear.  Especially
in the time of the gemora, there was no assumption that a get was given in
beis din.  It had to be properly written in front of witnesses with all the
halachos, but if a bunch of non Jews beat him up and then rounded up a
couple of knowledgeable witnesses and a scribe, then it would be all done
and dusted.  At least if a Jew does the beating up, there is no reason not
to go to Beis Din for the monetary aspects, but if one is getting into the
non Jewish system, the logical next step is arkos.

> Zev Sero        If they use these guns against us once, at that moment

Shabbat Shalom

Chana