[Avodah] forcing a GET

[Daniel Eidensohn]

On 5/9/2012 10:45 PM, Micha Berger wrote:
> Both the SA and the Rama say that iqar hadin is like the Rambam and we may use kefiyah even when the gemara doesn't explicitly require a
> divorce. However, the SA has a "some say" not to, and the Rama lauds the minhag of some areas not to allow kofin oso ad sheyomar "rotzeh
> ani", and avoid the dispute. Where the gemara*does*  require a divorce, which I am not insisting is our case, there is not even a "yeish omerim"
> against the Rambam. So yes, we do hold like the Rambam -- we just prefer lemaaseh not to rely on him lekhat-chilah for beyond iqar hadin
> reasons.
  The above paragraph is a serious misreading of  the Shulchan Aruch and 
Rema.

It says *nowhere* in the Shulchan Aruch or Rema that they hold like the 
Rambam in the case of where the wife claims Ma'us Alei (he disgusts me) 
- the case under discussion  Furthermore contrary to your  reading - the 
Shulchan Aruch And Rema do not say that kefiya can be used when the 
gemora doesn't explicity requre a divorce.  What they do say is that: 
"Where the gemora says that a get must be given it means beating with 
sticks. While some say that that beating can only be used where the 
gemora said to force the husband to give a get but where it only says a 
divorce should be given - no beating is allowed." It does not address 
the issue of "where the gemora doesn't explictly require a divorce" It 
is talking about cases where the gemora explicity says to either force a 
get or give a get. The case of ma'us alei is neither because no get is 
required at all as is clearly spelled out in the teshuva of Rav 
Eliashiv, Rav Sternbuch, Minchas Yitzchok etc that I have translated.

The issue of using force in a case of ma'us alei is addressed EH 77:2 - 
there the Shulchan Aruch says - "*If* the husband wants to divorce his 
wife." As the Otzer haposkim points out the Shulchan Aruch uses the 
Rambam's language  except it makes one major change - Ramam says in 
ma'us alei he is forced to give a get but Shulchan Aruch says "if the 
husband wants  to divorce"  Thus clearly the Shulchan Aurch does not 
hold like the Rambam! The Otzer haPoskim has a major kuntres on the use 
of force in ma'us alei for simon 77. It does not cite a single source 
that agrees with your assertion that the Shulchan Aruch and Rema agree 
with the Rambam!

*Shulchan Aruch (**E. H. 154:21): *All those cases which the gemora says 
that the wife should be given a divorce -- that means that the husband 
can be forced by being beaten with sticks. However some say that all 
those cases in which the gemora does not explcitly say the husband is 
forced to give a getbut only says the wife should be divorced -- the 
husband is not to be forced with sticks, but is only told ,"The sages 
require you to divorce your wife" and if he does not divorce his wife 
then it is permitted to call him an avaryan. Rema: Since this is a 
dispute of the sages [whether all cases where the sages say to divorce 
one's wife the husband may be forcing by a beating] it is appropirate to 
be machmir and not beat him in order to avoid making a get me'usa 
(invalid get because of coercion). But if the marriage constitutes a sin 
then everyone agrees that the husband can be forced to divorce with a 
beating. As a general rule all cases where beating is not permitted we 
also do not use nidoiNevertheless in these cases [where beating and 
nidoi are not permitted]it is possible to decree on all Jews not to do 
any favor for him or do business with him or to circumcize his sons or 
to bury him -- until he divorces his wife. Any chumra that beis din 
wants to do they can do -- as long as it doesn't consitute nidoi. 
However one who doesn't fulfill his sexual obligations to his wife it is 
possible to place him in nidoi or cherem until he fulfils his obligation 
or divorces his wife. This is not force except to motivate him to fufill 
his obligation...
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