By Rabbi Yair Hoffman
Most of our readers have read about the FBI sting against the Rabbis who perform what we can now call “The Cattle Prod Get.” In this column we will not be dealing with the aspects of Chilul Hashem and the breaking of American law. Rather, we will focus on whether these Gets are kosher or not in the first place.
The Mishna in Ksuvos (77a) lists a number of illnesses and professions in which a qualified Beis Din may force the husband to give a Get. The Gemorah both in Ksuvos and Yevamos provides further cases, and the final halacha regarding forced cases has been quantified in Shulchan Aruch Even HaEzer chapter 154.
There is a fundamental debate among the Rishonim, however, as to whether the cases discussed in the Talmud are the only such cases where a get may be forced upon the husband or whether they are examples of cases that may include other cases too. We will see that the final disposition of a forced get in most contemporary cases is dependent upon this debate among the Rishonim. The first view is that of the Rambam (Ishus 14:8), who rules that there are other cases where a get may be forced.
The next view is that of the Rosh and the Rashba. The Rosh, Rabbi Asher Ben Yechiel, rules in his responsa (43:3) that one may only force a get in the cases specifically mentioned in the Talmud. The Shulchan Aruch cites the Rosh in 154:5. The Rashba agrees with the Rosh in this respect as well.
Most cases of divorces that appear in our times do not deal with the issues of these illnesses and professions. They rather deal with cases where the wife allegedly finds the husband disgusting. This is termed in halacha as “Ma-oos alai” — he is disgusting in my eyes. For these cases, the Rambam rules that a get may be forced, while others disagree.
HOW DOES A FORCED GET WORK?
The essential question behind this debate may lie in how a forced get really works. What is the principle behind the mechanism? The Mishna in Yevamos (112b) clearly states that a man can only divorce his wife of his own will and accord. It cannot be done against his will. Yet we find that the Mishna in Eirachin (21a) states that the way it works in divorces is that we can force him until he says, “I want [to do it].” How are we to understand how this works?
To answer this question, there seem to be four different approaches.
The first, and most famous one, is that of the Rambam found in the laws of Geirushin (2:20). He explains that since the husband essentially wishes to be part of Israel he does not truly wish to go against the Torah. He wishes to fulfill the Mitzvos and distance himself from sin. It is just that he is subjugated to his evil inclination. However, once he receives corporeal punishment, his evil inclination is weakened and his true desire comes forth.
The Rambam’s view as mentioned earlier, is certainly the most well-known explanation to how it works. It is interesting to note that most people who have studied in Yeshiva are only familiar with the Rambam’s resolution to the question. Often, they are entirely unfamiliar with the other explanations and do not realize that the Shulchan Aruch’s position is more than likely like the position of the other Rishonim!
THE RASHBAM’S APPROACH
The Rashbam in Bava Basra (48a “Hasam”) explains that it is tantamount to the case of a forced sale when the seller receives consideration. He writes that just as the seller does not end up losing anything so too this husband doesn’t lose anything since his wife hates him anyway and without a get as well she will not remain with him — he loses nothing. The get is only a means that permits her to others and has no bearing upon him.
THE RADBAZ’S APPROACH
Another opinion is that which we find best explained in the Radbaz (responsa 1228) that the way a forced get works is dependent upon the power placed in the sages of Israel – that the Rabbis were empowered by the original formula of the marriage ceremony, “Behold you are betrothed to me in accordance with the law of Moses and Israel.” The law of Moses is Torah law, while the law of Israel refers to the rulings of the sages of Israel. In the cases of a forced get in the Mishna, the Radbaz explains, the Rabbis essentially revoked the marriage from the onset. In the language of Rabbinic Hebrew this is called, “Afkinhu Rabanan l’kidushin minei — the Rabbis revoked the marriage from him.”
Most Achronim understand that the Rosh’s position explained earlier is virtually the same as that of the Radbaz.
Another opinion is that of the Tosfos in Bava Basra (48a “Eelayma”). This position is somewhat unclear but it states that since the giving of the get under such circumstances is a Mitzvah it is likened to a sale, which is effective when forced. Some Achronim (see for example Rav Shlomo Streisan) understand the Tosfos to mean that the Mitzvah has a financial value to it and thus it is like the sale.
According to the Rosh and Radbaz, which the Shulchan Aruch seems to rule with, the case of Ma-oos alai would not be included in the cases where force may be used and the principle of Afkinhu Rabbanan l’kiddushin minei would not apply. Thus the marriage would still be intact and the cattle prod get would be ineffective. According to the Rambam the cattle prod get would work, but only in the circumstances that it was truly the correct Torah thing to do.
THE POSKIM WHO QUALIFY THE SHULCHAN ARUCH RULING
There are also Poskim who draw a distinction between the cases in the Gemorah and Shulchan Aruch and cases where the wife is no longer under the same roof as the husband. These Poskim write that the entire issue of limitation of forcing was only when they were under the same roof, but otherwise forcing when there is a concern that the wife would be an Agunah, left alone, is always permitted. The responsa of the Chacham Tzvi Siman 1 seems to indicate that he holds of this distinction. He writes that one may force a get either because of igun or because of the issues that Chazal enumerated. This is also the position of the Z’kain Aharon (Rabbi haLevy) in his responsa (#149). According to these Poskim the cattle prod get would be kosher.
It is pretty clear, however, from the writings of Rav Elyashiv and Rav Shlomo Zalman Auerbach that they do not seem to subscribe to this view.
Indeed, a friend of this author was once present when Rabbi Mendel Epstein’s name came up in front of Rav Elyashiv zt”l, and Rav Elyashiv zt”l said, “Oh him? His Gittin are invalid.” This was said in reference to his forced Gittin. Whether Rav Elyashiv’s ruling applies to each person’s individual case is another story and a competent Posaim should be consulted regarding each case.
The author can be reached at firstname.lastname@example.org