[Avodah] forcing a GET

Micha Berger micha at aishdas.org
Sat May 12 20:08:09 PDT 2012


On Sun, May 13, 2012 at 12:52:56AM +0300, Daniel Eidensohn wrote:
> 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...

In fact, it doesn't limit itself to any particular subset of divorces.
If you think the SA isn't referring to all divorces, show where he
says so or at least any of the nosei keilim do.

> Shulchan Aruch And Rema do not say that kefiya can be used when the  
> gemora doesn't explicity requre a divorce....

>From your own translation:
> *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

The yeish omerim talk about a case in which the gemara doesn't explicitly
require a divorce. That's the case under machloqes. The case where
the gemara does, the SA allows kefiyah, where it doesn't -- machloqes.

Which is why your brackets in the Rama are simply wrong:
>                                              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  ...

No, the Rama says:
>                                              Rema: Since this is a  
> dispute of the sages [whether all cases where the sages DO NOT 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 ...

So, it's appropriate to be machmir, not the essence of the law, not to
use qefiyah when the gemara doesn't explicitly require divorce. If the
gemara does require one, the Rama writes:
>                                    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  

So, qefiyah is allowed when the gemara requires a gett, and *ra'ui to
be machmir*, not mandatory, to avoid qefiyah when the gemara does not.
Exactly what I wrote.

How do you get from ra'ui lehachmir to the Rama saying the get would
not be valid? Or from the SA's yeish omerim to thinking that's his
own pesaq?

None of which touches your brother's understanding that nearly everything
is kefiyah rather than harchaqas RT, despite the rest of the Rama:
>                                    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...

...
> 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." ...

77:2 talks about her receiving her kesuvah, not gett. A moredes does
not get her kesuvah. And BD doesn't need to force a divorce, so "im"
is correct.

Our case is one where the moredes's husband doesn't want her or can't
be with her, and whether BD can choose to push him into divocing. And
you're asking us to ignore a very clear se'if about the limits of
such compulsion.

>        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 Rambam doesn't allow a husband or BD to decide the marriage is
salvagable. The SA says they can -- not that BD lacks the power to end
the marriage if they think it is unsalvagable. Therefore "im" -- they
could choose to allow the marriage to continue despite her revolt.

We see from the se'if you bothered to translate that the SA and Rama
do say the majority opinion is that the BD could use qefiyah even where
Chazal do not require a get

Gut Voch!
-Micha

-- 
Micha Berger             Today is the 35th day, which is
micha at aishdas.org        5 weeks in/toward the omer.
http://www.aishdas.org   Malchus sheb'Hod: What is soul-like about
Fax: (270) 514-1507                  submission, and how is it glorious?



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