[Avodah] A Mamzer Marrying a Shifchah

[Zev Sero]

On 10/02/2012 2:51 PM, Micha Berger wrote:
> On Fri, Feb 10, 2012 at 02:38:33PM -0500, Zev Sero wrote:
>>> My "that" was vague. Are you denying that halakhah is a matter of going
>>> to a poseiq rather than going with whichever sevara you personally find
>>> compelling, no matter whether anyone agrees?

>> Halacha is about sources.  Lo bashamayim hi.

> Lo bashamayim hi means quite the reverse -- it means we follow the
> majority DESPITE any heavenly or other knowledge about the sources.

Huh?  The sources are here on earth.  And in the absence of smicha
they are our authorities.


[Email #2. -micha]

On 10/02/2012 1:04 PM, Micha Berger wrote:
> I think RZS's invocation about "kol tenai shebemamon qayam" does address
> this concern. One doesn't need to discuss norms if both parties agreed
> to do the abnormal.

But is it valid? Is DdM just another variant on Minhag Hatagarim, or
even like Choshen Mishpat, stating the default rules from which anyone
is entitled to deviate? Or does it establish basic realities of baalus,
so that if DdM says this object belongs to A and not to B, and that this
doesn't depend on their will, then A may give B permission to use it, and
may agree not to sue him or challenge him and to act in all ways *as if*
B owned it, but it remains A's property because that's what the DdM says?


[EMail #3. -micha]

Further to my last message:

It seems to me that the basis of "kol tnai shebemamon kayam" is that
"hoda'at baal din keme'ah eidim", and that it's in someone's hands to
decline to press a valid claim, or to give permission for what would
otherwise be torts against him.

So if this woman, having consented to be a slave, were to sue her master
for making her work and stealing her earnings, or for disciplining her in
a manner that is consistent with hilchos eved kenaani, then her consent
should prevail in beis din, at least until she gives him clear notice
that she has withdrawn it. (And then it becomes a question of whether
this is one of those matters where irrevocable consent can be given,
or not. It would seem obvious to me that it is not, but both categories
exist in halacha, so it would have to be decided.)

However here we are not concerned with whether she can sue him or not,
but whether she *is* in fact a shifcha.

Let's do another thought experiment. Suppose he hits her in public,
and two eidim warn him, and he continues to hit her, explaining that
she is his shifcha and is entitled to exercise reasonable discipline.
So they take him to a beis din of smuchim, who are authorised to judge
dinei knossos and give malkos. (Never mind that such a beis din can't
be found today.) Upon being questioned, she openly states that she is
his shifcha, and she therefore accepts his right to discipline her as the
Torah authorises him, and has no complaints. But if she is not in fact
a shifcha then while her consent to be hit prevents her from suing him,
it doesn't prevent him from being prosecuted for the crime of hitting a
fellow yid, which is a lav in the Torah and carries a sentence of malkos.
So the beis din must decide whether she is in fact a shifcha, in the face
of our assumed DdM which says such a status can't exist. Does "kol tnai
shebamamon kayam" apply? This is no longer dinei mamonos. So how far
is the tnai in fact kayam?

I remind everyone, though, that this whole discussion applies only in
those countries where DdM in fact nullifies such baalus. Whether that's
the case in any specific country requires detailed research into its
laws, and quite possibly the history of those laws. In the USA, the
constitution does not prevent what we are discussing, but it may very
well be that there are statutes which do.

-- 
Zev Sero
zev at sero.name