[Avodah] forcing a GET

[Daniel Eidensohn]

I think I am getting an understanding of where you are erring.

*The Shulchan Aruch (E.H. 154) is discussing the issue of what force is 
allowed where the GEMORA KESUBOS 77 MENTIONS  that a divorce is either 
forced or required.*  It is not talking about cases where the Gemora 
says or indicates that husband has the perogative whether he wants to 
get divorced. [BTW the Beis Yosef in 154 says that he discusses the case 
of forcing for ma'us alei in simon 77].  Since in case of ma'su alei a 
get is not required by the Talmud to give or be forced - then it is not 
being discussed in simon 154. The harchokos of rabbeinu Tam are 
mentioned in 154 because according to Rabbeinu Tam they don't constitute 
force and thus are relevant in a divorce case where force is not allowed 
or where you want to be machmir to avoid a get me'usa. Thus at most you 
can conclude  is that in a case where a get is totally optionally 
according to the gemora - that the Rema would allow the use of harchakos 
of Rebbeinu Tam if beis din saw a need for the divorce. No word of what 
the Shulchan Aruch would say. *So when you insist that simon 154 is 
referring to all divorces - that is a major error.* It is only dealing 
with all cases of divorces where the gemora uses the term "force" or 
"required" or that "she goes out".  it is not dealing with cases where 
Get is totally optional according to the gemora.

In contrast you start with the assumption that the Shulchan Aruch must 
hold like the  Rambam that in a case of ma'us alei  the Talmud ( Kesubos 
63b) itself requires a divorce. In fact the Shulchan Aruch says no such 
thing and but clearly states regarding ma'us alei  in 77 -  "if the 
husband *wants* to divorce" . Thus he clearly disagrees with the Rambam 
who says he *must* be divorced in ma'us alei - see Be'er Hagola and 
Magid Mishna . You explain this difficulty away by claiming that simon 
77 is only dealing with the issue of kesuba. But the Beis Yosef says 
otherwise. And the Otzer Haposkim would not attach a whole kuntres of 
"Forcing in a case of ma'us alei "- if it weren't relevant to the simon. 
If you are correct then the Shulchan Aruch would have to say that even 
though the halacha is that we can force the husband - but the minhag or 
the takana of the sages is not to. But he doesn't. In the Beis Yosef - 
there is no statement that he agrees with the Rambam - and in fact he 
brings a list of poskim who reject the Rambam.

You also have a problem why those who are maikel in ma'us alei and allow 
harchakos of Rabbbinu Tam - when they list those who agree with the 
Rambam - do not mention the Shulchan Aruch or the Rema! The Tzitz 
Eliezar in particular has a major dispute with Rav Eliashiv about who 
agrees with the Rambam - he greatly expands Rav Eliashiv's list of 
Rambam and Rashba - but does not include the Shulchan Aruch and the Rema 
[He does say he has a diyuk which could be understood in one place that 
Rema allows the use of force in those places where the Rambam is 
accepted - hardly a support for your position].

Tzitz Eliezar 4:21 [see also 5:26]

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On 5/13/2012 6:08 AM, Micha Berger wrote:
> 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.
>
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