Avodah Mailing List

Volume 40: Number 83

Sun, 18 Dec 2022

• 1. Halachic process (Joel Rich)
• 2. Tamar Not Embarrassing Yehuda (Zvi Lampel)
• 3. Conditions upon a gett (Motti Yarchinai)

Jonathan Haidt uses the analogy of the elephant and its rider as a metaphor
for the relationship between our reason and our emotion (passions). The
rider helps the elephant make better choices but the rider cannot order the
elephant to do something against its will. It occurs to me this is a good
metaphor for what I?ve described as the delicate dance between the rabbis
and amcha in the halachic process (eg gzeira shein rov hatzibur yecholim
lamod ba). Thoughts?
KT
Joel Rich
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Tamar Not Embarrassing Yehuda

The following describes a problem I had that became solved by a rereading
of the pesukim. (Readers may have never had the problem because they always
understood the pesukim as I reread them.)

We are told that Tamar risked execution rather than publicly embarrassing
Yehuda. I was picturing Tamar, after being brought out to be executed,
declaring before all, that the owner of the items she produced, is the man
she became pregnant from. Yehudah, recognizing these items as his, and
realizing his part in the matter, felt compelled to admit it and to declare
that Tamar was innocent of the charge. Tamar risked execution in order to
save Yehuda from embarrassment by not openly declaring before all that
Yehuda was the impregnater, and instead left it up to Yehudah himself to
reveal his part in the matter.

But if she wanted to spare him embarrassment, she should not have said
ANYTHING!

In the end, doing what she did still led to Yehuda's humiliation. She put
him on the spot to decide between admitting to his embarrassing behavior
himself or denying the truth. Tamar's restraint from explicitly stating the
matter herself might be a lesson in speaking euphemistically about
sensitive topics, but how does it show resistance to causing someone's
embarrassment?

Rereading the pesukim, I see that the way I pictured it is plausibly
incorrect.

The pesukim do not say that any of the remarks of Tamar or Yehudah were
made publicly! They say that Tamar ''SENT THE MESSAGE'' to Yehudah. Both
her message, and Yehudah's reaction to it, could all have occurred in
privacy, unknown to the public.  (Yehudah dismissed the charges and called
off the punishment he originally called for, although the pesukim don't
divulge how.)

So, Yehudah's humiliating behavior never became public. And Tamar, by not
declaring anything in public, kept from PUBLICLY embarrassing Yehudah. Her
risk of undergoing the execution was if Yehudah would have stood on
ceremony and gone on with the punishment.

Zvi Lampel
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I have a question on the subject of making a gett subject to a condition.
There are quite a few anecdotal cases mentioned in the Talmud (Gittin),
where a condition created by the husband is attached to a gett. The
condition is usually of the form, "let this gett take effect if I don't
return by a certain date." However my question concerns something I have
not heard of before - whether it is halachically valid for a bet din to
unilaterally impose a condition on a gett, requiring the parties to the
gett to agree to it in advance by including it as a clause on the
application form that the parties must sign as a prerequisite to initiating
gett proceedings at the bet din.

Compounding this, the validity of the condition itself is highly
questionable, because it is in violation of the domestic law of the
jurisdiction in which the bet din and the parties reside and two legal
opinions have said that the clause is void ab-initio, by that law. So the
bet din is in the position of making the gett contingent (or at least
giving the parties to it the impression that it is contingent) on the
parties abiding by a clause that is legally void by the law of the land,
which, by that law, is the same as if the clause did not exist.

For details of this see this webpage devoted to this issue, which has, over
the last two weeks, become a hot topic of discussion on social media in the
country concerned. (If the above link does not work for you on first
attempt, close the browser tab and try a second time.)

This is not a hypothetical question. There is a gett application pending
before that bet din in which one of the parties has crossed out the
offending clause in the application form. This occurred in the presence of
the bet din's registrar, presumably at the signing and submission of the
application form, which must have been done in person. I don't have any
information as to whether this will result in the bet din refusing to take
on the case or whether it will proceed regardless of that party's rejection
of the offending clause.

I would like to know: (a) if the bet din would be halachically justified in
taking the former course and, (b) whether, if a couple signed the
application form without protesting that clause, but, after the gett was
executed, one or both of them violated the terms in that clause, the bet
din could, halachically, rescind the gett? My insinct tells me that the
answer to (b) is most likely no. I am not so sure about (a).

Even if the bet din never tried to enforce compliance with that clause and
would never rescind the gett in the circumstances described in (b), the
very existence of the clause is damaging, because it could put off a party
to a prospective gett from going ahead with it, and my feeling is that it
is not only dangerous to the bet din because it could get it convicted of
contempt of court, but is also bad for Judaism because of its tendency to
put off a party to a gett from participating, and the clause should
therefore be removed.

If there is no-one on this list with the necessary expertise in hilchot
gittin to give a competent opinion on this, could someone on the list refer
this to a halachic authority for a more authoritative answer?
Motti

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