To cry Mum or to say mum

by Dr. Jacques Abourbih

Understanding how Halachah is decided seems to be shrouded in mystery even for learned Jews. People mistake Talmudic halachic analysis for a mathematical theorem proof. This is not the case. A halachic interpretation does not apply hard logic to a set of unassailable rules. The fundamental guiding principle is applying reasonableness and practicality that will allow a point of Law to remain valid and relevant in the daily life of a Jew. In fact the interpreters will err towards a more lenient interpretation to allow more people to follow the Halachic ruling.

There are several instances when the Talmud records divergent opinions between the more stringent Shammai and the more lenient Hillel, yet it concludes with the term: “but the Halachah is according to Hillel.” Although often the ruling chooses the more lenient interpretation of the Law, it does not mean a free for all when anybody interprets the Law to suit his or her purpose of the moment.

I would like to digress for a moment to correct a historical perspective that is wrong. To do this I must first explain that rabbinical Judaism, which comprises about 95% of all Jews today, is the spiritual successor of the pharisaic Judaism in existence before the destruction of the Temple in the year 70 CE. Contrary to the historical perspective of the Pharisees commonly accepted, the Pharisees were the liberal Jews of their time. Sadducees and Essenes of the Dead Sea scrolls never allowed any possible interpretation of the laws in the Torah. The Pharisees on the contrary looked at interpretative opportunities to keep the relevance of the Torah laws in the life of Jews wanting to remain faithful to them. This process continues today at the hand of rabbinical poschim who have a solid grounding in rendering halachic decisions. Otherwise one can float so far off as to develop the most ridiculous ideas, all in the name of halacha. And we certainly have all seen examples of this.

I would like to illustrate the psak Halacha process from an example from the perasha of this week. The Torah prescribes the divorce procedure such that the husband must participate voluntarily. If the man refuses to grant a get the wife remains in the difficult position of an aguna, or in limbo. This situation, though unfair and tragic for the wife, is essentially the creation of the husband who has shown himself to be an evil criminal, and is abusing his wife in this contemptible way. Over the many years of our history the rabbis have done whatever they could for any woman so trapped in this lamentable predicament. Unfortunately, no categorical or general solution to the problem emerged.

One solution proposed recently was to apply the process of harat nedarim or annulment of vows which is presented in Matot, this week’s perasha.

The reasoning with regards to circumventing the issue of the get goes like this. A woman must obtain a get to be divorced, but only if she is married to that man. Hence if we find a deception by one or the other party there never was a marriage and therefore a get is not required.

This is similar to harat Nedarim where our rabbis explained that a man pronouncing a vow he cannot keep presents himself to the beit Din. The individual points out that his
lack of adapt or knowledge (or, more commonly, lack of foresight) of some aspect of the neder he had not considered would render the neder to be invalid.. The beit din declares the neder as lacking da’at (or awareness) at the time it was formulated, and therefore the neder is not binding. This is ruling is an example of a rabbinical adaptation to the laws in the Torah portion and is not in the Torah, as pointed out in tractate Chagigah.

An astute person may come up and say that he wants to annul a certain business transaction on the basis that he was not aware of the all consequences when he negotiated the deal. “Not so fast” says the bet Din.  The Beit Din’s annulments have jurisdiction only on contracts between Man and G-d, as we emphasize every year when we read Kol Nidre. But for contracts between Man and Man the two parties must work it out between themselves. As far as a neder or vow between Man and G-d, a person may have uttered it without full appreciation of all the consequences. But it is expected that an individual entering a business contract has exercised due diligence in foreseeing the consequences of the transaction.

Well what about divorces? Does the bet Din have jurisdiction to annul the marriage therefore obviating the need of a get? Marriage is referred to as Kiddushin, a holy act. It is a sacred vow of Man and Wife before G-d. Therefore the beit din should have jurisdiction to annul the marriage if one or the other party claim a lack of Da’at when either one entered in marriage.

The Ran explains that Kiddushin or the vows of marriage require a higher level of diligence or higher level of Da’at than would be exercised even in the case of a business transaction. Therefore the Beit din is powerless in the case of granting an annulment, even if theoretically it falls under the same category as nedarim.

The second argument against the beit din authority over annulment of marriages is raised by the rambam. He states that an individual who continues to use an object after he became aware the object to be defective after he bought it cannot claim mekach ta’ut an erroneous sale. Continued use of the item indicates that the level of the ta’ut is insufficient to warrant voiding the transaction.

Therefore a woman who remains in marriage with her husband and did not walk away from the marriage upon discovering a mum gadol or serious defect cannot claim the case of mekach ta’ut an erroneous sale, according to Rabbi Moshe Feisntein.

The counter-argument to this explanation is that marriage is not an object that you can discard if you find fault with it. A woman may not be able to walk away from the relationship even upon discovering a mum gadol, a serious defect.

And the debate goes on, with the sole intent to render halachah adaptable in fulfillment of the Torah when it says: “I have given you these laws to live by them” and our rabbis add:  “Not to die for them.”