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Volume 03 : Number 082

Monday, June 7 1999

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Subjects Discussed In This Issue:
Date: Mon, 7 Jun 1999 14:21:41 -0400 (EDT)
From: micha@aishdas.org (Micha Berger)
Error in the Creation of Jewish Marriages: Part 2

The footnotes.


Micha Berger (973) 916-0287          MMG"H for  7-Jun-99: Levi, Sh'lach
micha@aishdas.org                                         A"H O"Ch 325:4-10
http://www.aishdas.org                                    Eruvin 92a
For a mitzvah is a lamp, and the Torah its light.         Kuzari III 1-4

Error in the Creation of Jewish Marriages:
Under what Circumstances Can Error in the Creation of a Marriage Void the
Marriage without Requiring a Jewish Divorce
Michael Broyde[1]


1. Michael Broyde is an Associate Professor at Emory Law School, Rabbi of
the Young Israel of Toco Hills, and a member of the Beth Din of America.

2. Indeed, one of the first systemic discussions related to kidushai
ta'ut focuses on whether or not one assumes kidushai ta'ut when a couple
marries unaware of the fact that Jewish law actually prohibits them from
marrying. This topic is discussed at great length in Otzar Haposkim 39:12-13
(pages 210-216). Indeed, as noted by Chelkat Ya'akov, infra note 60, the
proper resolution of this matter might depend on the religiosity of the
parties. See also Acheizer 1:27 who discusses the case of a divorced woman
who married a cohen.

3. For a detailed review of this issue, see Shulchan Aruch EH 39:1, and the
commentaries on this. It is clear that the formulation in the Shulchan Aruch
regarding pesulai cohanim is not fully accurate, as left handed individuals
are ineligible for service as cohanim; see Otzar Haposkim 13 at page 91. More
generally, as noted Otzar Haposkim 39:31:2, the vast consensus of halachic
authorities notes that this determination is social, and not strictly halachic
(in the sense of independent of the social reality, like -- for example --
the definition of chametz is objective.).

4. The technical term used for tranfer of title or status.

5. See Tosafot, Ketubot 47b sv shelo, as well as Tosafot Ketubot 72b s.v. al,
and 73a s.v. lo. For reasons beyond this paper, in such cases normally a
get would be given when it possibly can.

6. When exactly one is in one category or the other remains a significant
dispute among achronim; see Achiezer 1:27, and compare it to Iggrot Moshe
EH 1:79. A close read of the three Tosafot referred to in the previous note
indicates that Tosafot, too, disagreed about this point. However, Shulchan
Aruch EH 39 indicates quite clearly that the Shulchan Aruch thought that
in the case of a serious hidden defect, "mum gadol," no get was needed,
although that rule is only stated in reference to a defect found in the man
and not to a defect found in the woman. The stakes, however, are the same,
as the defect in the woman permits her to marry another man without a get
from her first husband.

7. Shulchan Aruch EH 26.

8. Shulchan Aruch EH 37. The case of kidushai ketana is a special one, in
that the Torah directed that the father is the one authorized to accept a
marriage proposal.

9. See Aruch Hashulchan EH 26:1-6. This paper notes, without directly
commenting on, the famous view of R. Eziekeil Abromsky that both in the area
of family law and contract law, requirement one is significant, and
requirements two and three are mere manifestations of one; he avers that, at
least as a matter of theory, valid transactions can occur without requirement
3. See Y. Abromsky, Dinai Mamonut.

10. See Shulchan Aruch EH 38 and 39. EH 38 addresses explicit conditions
(tenaim) and 39 addresses implicit or explicit states of mind (al manat). This
short review deals with al manat formulations; the expanded version of this
paper will explicitly address both; currently this issue is briefly commented
on in note 76.

11. See Shulchan Aruch 44:4 (first opinion). Indeed, many authorities aver
that there is no dispute between the two opinions; one is aware of the fact,
and one is not. Kidushin shelo nimsaru lebiah is a halachic concept and not
a factual one.

12. For a discussion of this, see Iggrot Moshe 1:79.

13. This is the talmudic discussion of an iylonit; for a lengthy review of
this issue, see Seredai Aish 3:33, which concludes that it is possible that
a get is not needed.

14. A ma'ase kinyan.

15. See Shulchan Aruch, CM 232:3-9. CM 232:6 reads:
     Anything which is agreed by the members of the city (state) as a defect
     that one must return the item for, one must return the item when that
     defect is found. Anything which all agree is not a defect, one need not
     return the item for as it is not a defect, one need not return the item
     unless one made it explicit [that such was a condition]. Anyone who does
     business unconditionally, does so in reliance on common commercial custom.

16. Chulin 50a. "If one sells a cow and it turns out not to be kosher, the sale
is void." Kosher here refers to a physiological defect in the cow that prevents
it from ever being kosher, rather than a defect in the slaughtering process.

17. Many trefas cannot be detected until after slaughter.

18. As noted by Tosafot (Bava Kama 110a) this does not apply to the case
where a person purchased a cow, and then it became teref, even though it
is true that when he purchased it he desired that it neither be teref nor
become teref, the later is not subject to disclosure, and thus cannot be
an implied condition in the deal. Of course, as noted at the end of this
paper (see note 76) this could be a formal tenai, but formal tenaiim require
very specific formulas, and cannot be implicitly created. For more on this,
see Bet Halevi 3:3 who explicitly discusses this issue.

19. In the sense of intentional misrepresentation.

20. Of course, it is easier to prove the lack of agreement when there was
actual intent to defraud. However, that is merely evidentiary in nature and
not directly relevant. Consider the discussion found in Avnei Chafetz 30
about one who contracts marriages with the intent to defraud the woman or
Mari HaKohein Tenyana 13. The same approach can be found in the discussion
of one who marries a woman and does not inform her that he is already married
to another (See for example Talumot Lev, 3 Shelichut 1, and other sources).

21. Consider, for example, the discussion found in Yabia Omer EH 2:9 concerning
the case of a woman who represents herself as a virgin but is not. He concludes
that the marriage remains valid, and a get would be needed if they choose
to separate over that issue.

22. It might not apply to the yibum relationship, in that yibum, like divorce
according to Torah law, does not require the consent of the woman in order
to be valid. Thus, the position of those rishonim concerning the apostate
brother not voiding the marriage is not inconsistent with this.

23. Rama EH 39:4.

24. Id.

25. Shulchan Aruch EH 39:3.

26. For examples of this, see Otzar Haposkim 39:17-27, which discusses a
variety of different hypothetical cases.

27. Shulchan Aruch EH 39:1-8.

28. Iggrot Moshe EH 4:83(2) in the last sentnece of that section.

29. Rambam, Ishut 6:1-5; for an excellent short essay on this topic, see
"Mepi HaShmu'a" Mesorah 2:39-42 (5744).

30.  Consider the case of a couple that goes through a perfectly proper Jewish
wedding ceremony for the sake of allowing one of the two parties to acquire
a residency permit (green card, in America) based on the citizenship of
their spouse. As Rabbi Moshe Feinstein notes in Iggort Moshe EH 4:112 even
in a case where the ceremony was completely proper in form (chupa kedin),
if neither party had any intent to enter into a valid wedding, even if the
putative couple takes up residence, commences a sexual relationship, and acts
as husband and wife after the ceremony, they are not married, since they
both agreed that they would not be married by this ceremony. (Of course,
as a matter of proof to this proposition, they would have to demonstrate
that they had told that to others before the ceremony took place that the
ceremony was bogus.)

31. Even Haezer 38 and 39 (en passant); but see Rama, Even Haezer 157:4.

32. EH 157:4.

33. See the extensive analysis of this topic in Pitchai teshuva, Even Haezer

34. Either through a formal ceremony or through living together sexually with
the intent to marry; see Even Haezer 31:8-9.

35. When exactly does one assert that there is an implicit tenai, and when
is there a mistake (ta'ut) is, at the margins, a matter in dispute. Rambam,
cited above, limits tenai to cases of explicit invocation of the conditions,
following the explicit doubling formulations (the doubling formulation requires
that one mention both what happens if the condition is fulfilled, and if it
is not); all other cases fall under the rules of ta'ut. Ra'avad (Ishut 6:1)
disagrees, and allows for cases of implicit condition in all matters other
than marriage and divorce. Ramban (Gitten 45b, and other places) categorizes
all prospective stipulations as tenai and all retrospective conditions
as ta'ut. Tosafot (Kiddushin 45b) avers that all implicit conditions are
really cases of ta'ut when the conditions are the normative ones expected
in any transaction, and the only time one can have a condition is if it is
made explicit as a tenai. Rabbi Chaim Soloveitchik (Chidushim) argues that
Rambam actually distinguishes between those conditions that are designed to
prevent the marriage from taking effect immediately (me'achshav), and those
stipulations that are immediately fulfillable at the time of the marriage are
merely a form or ta'ut; Rabbi Moshe Feinstein (Iggrot Moshe EH 1:79-80 rejects
this view, and accepts the formulation of the Rambam mentioned above. For more
on this, see note 17, which discusses this in the context of commercial norms.

36. Why that should be so can be readily explained on a social level, and
should not be understood to mean that the absence of this discussion indicates
anything halachicly. Indeed, one can explicitly find such a discussion
among the rishonim who discuss ach mumar. I will leave for another time an
explanation of why the Shulchan Aruch does not address that problem in the
context of husband, and only brothers of husbands.

37. Even Haezer 154:2.

38. Beit Meir on id. stands alone in arguing with this approach conceptually
and is inclined to accept that there can be no concept of kidushai ta'ut for a
woman for defects found in a man. He argues that the talmudic language seems
to be limited to defects in the woman. One could respond to this objection
by noting that the linguistic reference in the gemera is to the typical case.

39. See for example, Terumat Hadeshin 223. It is important to closely read
Rashi's explanation of the Bava Kama 110b case, as Rashi indicates quite
clearly that a social judgment is being rendered. Indeed, the language of
"annan sadi" ("we attest") is very consistent with a statement of social
reality and not rabbinic decree.

40. Consider the case of the man who is deathly ill, hides this fact from
his fiancee, dies soon after the wedding and leaves only a brother who is
6 months old to do chalitza. As noted by Rabbi Chaim Berlin (Even Shoham,
Kuntress Haagunot), this states a strong case in that in such a circumstance,
one is fairly certain that this woman would not agree to marry this man.

41. The strongest such statement by a modern posek can be found in Rabbi
Henken's Perush Ibra at page 41, which clearly is discussing the facts of
marriage and not the halacha.

42. Iggrot Moshe EH 1:80 and Acheizer 1:27.

43. "Tav lemativ tan du, melemativ armelo."

44. "anan saadi deminach necha la bekol deho."

45. Bava Kama 110b-111a and Ketubot 75a.

46. See for example, Iggrot Moshe EH 4:113 or EH 4:83 or Acheizer 1:27, each
of which reach this result, which is fully consistent with the discussion
found in the various rishonim about the ach mumar problem.

47. For example, Iggrot Moshe is inclined to state that the principle is
completely inapplicable to people who are not religious; Iggrot Moshe EH 4:83.

48. See Eruvin 82a, Ketubot 59b, 65b, 122b-123a.

49. Even Haezer 82:7.

50. As the facts of this particular case indicate that a child is better
off being placed with the mother or father in any particular case, even if
the talmudic presumptions might not place this child with this parent at
this time. For more on this topic see Eliav Shochatman, "The Essence of the
Principles Used in Child Custody in Jewish Law", 5 Shenaton LeMishpat HaIvri
285 (5738) (Hebrew) and my forthcoming article "Child Custody in Jewish Law:
A Conceptual Analysis of the Issues."

51. Terumat Hadeshen 223.

52. That one can take possession of something for a person when it is an
unmitigated benefit for them.

53. "tav lemativ tan du, melemativ armelo."

54. Such can also be implied from the view of Rava in Ketubot 75a. This is
also consistent with the practices of batai din throughout the world who
permit the use of the get zekui procedure in cases where it clearly is of
benefit for the woman to be divorced.

A number of readers have referred me to a recorded lecture Rabbi Soloveitchik
gave in which he indicated that the principle of "tav lemativ tan du, melemativ
armelo" is an immutable presumption that cannot change and is applicable to
every person and every marriage under every circumstance. As has been noted
throughout this paper, that view cannot be correct, and there is a wealth
of halachic literaure to suggest that even if this presumption is immutable
on a general level, it is not applicable to every marriage and under every
circumstance. Indeed, I suspect that Rabbi Solovietchik's formulation at
that particular lecture is limited to opposing the wholesale abandonment of
the principle, rather than the mere assertion that it did not apply in any
given case or set of cases.

55. Iggrot Moshe EH 4:113.

56. 1:79 concerns kidushai ta'ut in the case of impotence and 1:80 insanity. In
both cases, Iggrot Moshe concludes that the marriages are void, as no one
would marry one who is a sometimes lunatic or impotent.

57. Id. Emphasis added.

58. See Iggrot Moshe EH 4:73 and 4:13 for the cases of heart disease and
sterility (or even, perhaps compelled abortion). Rabbi Feinstein, surprisingly,
enough does not consider it kidushai ta'ut in the case where a 20 year old
woman was seeking to marry, and did not wish to reveal that she had not
yet begun to menstruate. See Iggrot Moshe EH 3:27 where he argues that
such conduct can be explained as within the framework of normal. However,
I believe that Rabbi Feinstein is less inclined to consider defects in the
woman to be relevant for kidushai ta'ut than defects in the man, as defects
in the woman can be grounds to compel her to receive a get, thus reducing
the need for this rationale. This important and logical insight is first
noted by R. Chaim Ozer Grodzinski in Achiezer 1:27.

59. "tav lemativ tan du, melemativ armelo."

60. "anan saadi deminach necha la bekol deho."

61. Besides the many halachic authorities cited throughout this paper,
one can see a discussion of the relationship between the state of mind of
the parties, the intent to marry only a person of a particular character and
the rules of "tav lemativ tan du, melemativ armelo" and "anan saadi deminach
necha la bekol deho." The following list is not intended to be complete,
and should not be taken to indicate that each teshuva permits each woman
to leave each marriage without a get. Rather these poskim discuss whether
one does or does not assume that given the social reality of the couple
and the society, one can consider whether there was enough of a failure
in understanding the agreement that the marriage was not validly entered
into when any particular defect is present. Ain Yitzchok 24 who discusses
impotence as grounds for hidden error; Avnai Chefetz 30 who discusses marriage
to a criminal as grounds for hidden error; Berchat Retzai 107 who discusses
epilepsy and what perhaps is polio as grounds for hidden error; Bet Halevi
3:3 who discusses serious defects generally as grounds for hidden error;
Chaim shel Shalom 2:81 who discusses apostasy as grounds for hidden error;
Chavat Yair 221 who discusses impotence as grounds for hidden error; Chelkat
Yaakov 3:114 who discusses apostasy by the husband when the wife is secular as
grounds for hidden error; Divrai Malkeil 1:86 who discusses whether there is
a difference between intentional fraud and accidental misleading information
as grounds for hidden error; Even Yekara 53 who discusses epilepsy as grounds
for hidden error; Hari Besamim Mahadura 2 EH 147 who discusses insanity as
grounds for hidden error; Mahari Hacohen Tenyana 13 who discusses marriage to
a criminal as grounds for hidden error; Meluai Even 29 who discusses insanity
as grounds for hidden error (he is makil for a reason that is astonishing,
and beyond the scope of this paper); Nodah Beyehuda EH 1:88 who discusses
apostasy as grounds for hidden error (this is at tension with his Tenyana 80);
Seredai Ash 3:33 who discusses impotence and apostasy as grounds for hidden
error; Sharit Yosef 44 who discusses apostasy as grounds for hidden error;
Tashbetz 1:1 who discusses impotence as grounds for hidden error; Yad David
(Piskai Halachot) 186:3 who advances a general rule that any illness that
would be grounds for compelled divorce after marriage, if hidden would be
grounds for kidushai ta'ut if hidden; Yeriyot Shlomo 1:8 who discusses what
appears to be syphilis as grounds for hidden error.

62. The reason that one would have to know beyond a doubt, rather than
some lower standard, is that after what appears to be a valid and proper
wedding ceremony the couple is presumed married and the woman bechezkat
eshet ish. Halacha would not allow one in that presumptive status to remarry
without a near certain insistence that the presumptive status is wrong. For
more on this, see Perushai Abira (Rabbi Henkin) at page 41.

63. umdana demuchach.

64. Chazon Ish EH, Ketubot 69:23. He immediately thereafter makes reference
to the difference between a diseased person and an apostate, and how the
presumption is that she would not desire the second, but perhaps would
the first.

65. How exactly one demonstrates the presence of an categorical presumption
is a significant halachic dispute amoung the poskim as to the relationship
between presumption, categorical presumptions, and near certain knowledge
that has no witnesses. It is generally accepted that an umdana demochach,
in terms of percentages, is somewhat more than 90%, with some halachic
authorities asserting the percent to be 95% and some to 98%. This note is
to be expanded on -- MJB.

66. Her ability to leave without a get.

67. The minimum amount of consideration needed to validly marry according to
Jewish law; Kiddushin 2a.

68. I.e. that witnesses know that they are living together and are married.

69. Such as one of them is not aware of the fact that the marriage was void
to begin with, or does not wish to marry again.

70. See Otzar Haposkim 31 notes 52 and 56 (pages 340 and 343) for more on
this issue.

71. Otzar Haposkim 31:54.

72. Such is our practice, for example, when individuals who are married in
a civil ceremony and become religious. When they realize that their civil
marriage was void in the eyes of halacha and yet continued to stay married,
they are married.

73. See Chelkat Mechokek 31:20 and Bet Shmuel 31:22. This case derives from
Teshuvot Mammoniout 19. A simple commercial law analogy helps explain this:
Consider the case of a person who purchases a car for $1,000 and after
one day notices that the engine badly leaks oil. He returns to the dealer,
and wishes to return the car, void the transaction and be given back his
$1,000. Assuming that the defect is one that one could return the car for,
the initial transaction was void, and the dealer should return the $1,000. If
the dealer, when the purchaser sought to return the car, explained to the
purchaser that even with the oil leak the car was still an excellent car
and worth the purchaser keeping, and the purchaser accepted that assertion,
that too would be valid and the sale properly created on that day. However,
if the dealer were to lie to the purchaser and tell him that "one cannot
return a car just because of an oil leak," and the purchaser accepted that
as true when it was not, the sale would never be valid, and the purchaser
could return the care whenever he found out about his rights.

74. Aruch Hashulchan EH 39:13.

75. Seredai Ash 3:33.

76. A sexual relationship being one of the three ways the couple can create
a valid kinyan. In the alternative, the couple could actually have another
wedding ceremony. For more on this, see Yabia Omer 2:9.

77. Aruch Hashulchan EH 39:13 quoted above, and others. It is for this reason
that there is a greater consensus that kidushai ta'ut in cases of impotence
is easier than any other case, as there is no possibility of post discovery
ratification of the marriage through a sexual relationship, which given the
nature of the ta'ut here cannot happen.

78. In the case of a relatively non-significant defect, there is a dispute
about whether the first marriage continues or a second marriage is created;
compare the views of Beth Shmuel EH 68:6 and the Beit Meit (EH 68). However,
a strong case can be made that Rama argues, based on how he rules in the
case of a "marriage" to a lunatic who recovers, which is discussed in EH
67.  For more on this issue, see Yabia Omer EH 2:9.

79. Aruch Hashulchan EH 39:13.

80. The word "known" is vitally important, as a consensus has developed that
when the couple does not know that the marriage is deficient, they do not
cure the defect by continuing to live together as husband and wife, as they
lack any intent to ratify the marriage or create a new one. One cannot ratify
that which one does not think is deficient. A similar concept is present in
the conversion of minors.

81. This is the dispute between Rabbi Moshe Feinstein and Rabbi Yosef Henkin,
and has been explained well by others. The near unanimous practice in America
is to rule like Rabbi Feinstein, at least in the case where a get cannot
be procured.

82. The first is important because it goes to the question of whether a woman
would accept a marriage proposal from one who is sexually unfit for purely
economic reasons; the second is relevant as it goes to the question of whether
a woman would accept a marriage proposal from one who is unfit for other
reasons so as to have a licit sexual outlet. The first of these factors is
considered in Iggrot Moshe EH 1:79, and the second is EH 4:83. Rabbi Moshe
Feinstein is prepared to consider the possibility that the principles used
by halacha in these circumstances differs very very significantly when the
couple is not generally religious, and even more so when they are promiscuous.

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Date: Mon, 7 Jun 1999 12:04:59 -0700 (PDT)
From: Moshe Feldman <moshe_feldman@yahoo.com>
Fwd: [israworld] Re: A cultural question on Jewish theology

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Anybody know the cites for the attached message?

Note: forwarded message attached.

Do You Yahoo!?
Get your free @yahoo.com address at http://mail.yahoo.com

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From: "Ehrlich, Ed" <Eehrlich@ndsisrael.com>
To: "'israworld-announce@egroups.com'" <israworld-announce@egroups.com>
Cc: "'moshe_feldman@yahoo.com'" <moshe_feldman@yahoo.com>
Date: Sun, 6 Jun 1999 09:19:53 +0300
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Hi Moshe,

Thanks for setting me straight on this.  Can you please tell me the source
of your information.


Ed Ehrlich

> -----Original Message-----
> From:	Moshe Feldman [SMTP:moshe_feldman@yahoo.com]
> Sent:	03 June, 1999 7:21 PM
> To:	israworld-announce@egroups.com
> Subject:	[israworld] Re: A cultural question on Jewish theology
> --- "Ehrlich, Ed" <Eehrlich@ndsisrael.com> wrote:
> > First of all regarding a Catholic priest, I believe that Rambam
> > declared
> > that followers of both Christianity and Islam qualified as
> > observers of the
> > Noachide laws, despite the fact that Christianity does not have
> > same strong
> > monotheistic tradition of Islam and Judaism.  
> Actually, Rambam believed that Catholicism is considered idol
> worship.  It was the Tosafot (living at the same time in northern
> France) and the Me'iri (living in Provence) who disagreed.
> Kol tuv,
> Moshe
> ------------------------------------------------------------------------
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Date: Mon, 7 Jun 1999 16:31:12 EDT
From: C1A1Brown@aol.com

>>>Jewish Woman divroces in court w/o a get.  Marries a 2nd husband.  Is the  
resulting mamzer a problem of metzius or halocho?  Psyclogically speaking she 
feels no "guilt" since she thinks she' divorced.<<<

But who says this din has anything to do with psychology???

>>>Brothers separated at birth, can they be combined as eidim?  As krovim 
they have litte emotional ties, so what is the psul?<<<

Chazal already precede you: Moshe and Ahron are pasul despite the fact that 
they would not let their emotional ties interfere with their testimony.  
CLearly the din is not based on emotional ties.

>>>What about gays who are presumed to be genetically programmed to feel 
attracted to their own gender?  Is the halocho a "real world" issue?<<<

And if they are genetically programmed - who says that should change the din?

>>>What about 3 pieces of meat 2 kosher and 1 treif. Is kol deporsuh merubbo 
porush a physical reality?<<<

You confuse kol d'parush with chad b'trei, but that's besides the point.

The common denominator: YOU have assumed psychological motives where the 
Torah never stated them.  I do not pretend to read G-d's mind, and read each 
of these cases as gezeirat hakatuv.  There are halachot with STATED 
psychological/physical assertions - however, none of your cases fit into that 


Go to top.

Date: Mon, 7 Jun 1999 22:11:35 -0400 (EDT)
From: Zvi Weiss <weissz@idt.net>
Re: Avodah V3 #81

> From: Moshe Feldman <moshe_feldman@yahoo.com>
> Subject: re: Psychology
> > 
> > ===> By Chilul Shabbat, it is not clear that a procedure that is
> > "not
> > accepted" can always be used.  
> I didn't refer to a procedure which is *not* accepted.  Rather, I
> referred to a procedure which is not necessarily accepted by the
> *entire* medical community; i.e., a case where there is a difference
> of opinion among doctors.  Moreover, my point wasn't evaluating *how*
> controversial a specific treatment is; rather point was that for the
> purpose of chilul Shabbat, a patient is allowed to rely on his doctor
> as to the efficacy of specific procedure without investigating
> whether the procedure has been accepted by all.  Similarly in the
> case of LH: one may rely on the assumed efficacy of psychotherapy
> (aside from the medical community, many rabbanim recommend it too) to
> create to'elet.

===> Is the reference to a procedure accepted by either MOST doctors or
the "most expert" doctor(s) even if such constitute a minority?  If
neither, then how is "acceptance defined in the criteria above?  Because
of this, is it possible to cite more accurately when one may rely upon the
"assumed eficacy" of a procedure when many oppose such a procedure?  (I am
not including the to'eles" aspect of L"H since that had already been shown
to have support among contemporary poskim...)

> > Is
> > there a
> > specific source that one merely has to *believe* that something is
> > effective for it to be considered "to'eles"?  
> I would think that there must be reasonable basis for the belief
> (since LH involves some damage to others, and in this regard is
> different from chilul Shabbat, which according to many poskim is
> "hutra" rather than "d'chuya" when there is pikuach nefesh; moreover,
> chilul Shabbat is bein adam la'makom rather than bein adam
> l'chaveiro).

===> Who defines the "erasonable basis"?

> > I would also note
> > that given
> > the general suspicion that I have seen vis-a-vis the Mental Health
> > profession (because they "profession" has taken such views as the
> > "acceptance" of homosexuality) 
> Outside charedi circles, it is my impression that there is no general
> suspicion of the Mental Health profession (again, I recommend Rabbi
> Moshe Halevy Spero's books and articles on this issue), other than
> making sure that a frum patient does not go to a psychologist who
> will try to draw him away from religion.  Any methodology can be
> misused (as in the case of psychology's view of homosexuality); this
> does not necessarily undermine the methodology itself.  In the case
> of psychotherapy, it is my impression that there have been been
> actual double-blind trials proving its efficacy in more than 50% of
> cases.  (Just recently, there was a study showing that psychotherapy
> coupled with certain antidepressants is substantially more effective
> than antidepressants alone.)

==> I distinguish betweent the *profession* (where Rabbi Dr. Spero has
done a magnificent job) and its *practitioners* -- to whom (I think)
suspicion still attaches....

> Psychologists--to my knowledge--have not been able to "prove" that
> homosexuality is "natural."  Rather they assume that as a postulate
> and work accordingly (i.e., they do not try to "cure" a patient
> suffering from homosexuality).  In fact, Anna Freud did consider
> homosexuality a sickness and claimed to have been able to cure many
> of her homosexual patients of their homosexuality.  (I believe that
> modern psychologists dispute her findings.)

===> Understood -- but the net effect is -- I think -- perceived as a
deliberate effort to "rehabilitate" the "image" of something that the
Torah described as To'evah.


> Kol tuv,
> Moshe

Go to top.

Date: Mon, 7 Jun 1999 22:16:11 -0400 (EDT)
From: micha@aishdas.org (Micha Berger)
The to'eles in venting

Harry Weiss <hjweiss@netcom.com> writes:
:                        I attended a lecture by R. Leibl Wolff.  ...
:                                             He felt that on the contrary, 
: venting just increased the anger and caused more harm then good.

In contrast, R' YB Soloveitchik had much to say about the role of catharsis
in halachah.


Micha Berger (973) 916-0287          MMG"H for  7-Jun-99: Levi, Sh'lach
micha@aishdas.org                                         A"H O"Ch 325:4-10
http://www.aishdas.org                                    Eruvin 92a
For a mitzvah is a lamp, and the Torah its light.         Kuzari III 1-4

Go to top.

Date: Mon, 7 Jun 1999 22:19:55 -0400 (EDT)
From: micha@aishdas.org (Micha Berger)
Re: Ba'al Nefesh (redux)

Shoshanah M. & Yosef G. Bechhofer <sbechhof@casbah.acns.nwu.edu> writes:
:> Are you saying that a B"N is interested in sur meira and a Y"S is
:> working on asei tov? 

: No. because the terms are not exclusionary. A BN may be a YS, or not, and
: vice versa.

I miss how that rules out my assumption. Can't someone pursue both sur meirah
and asei tov to an extent of being lifnim mishuras hadin? Wouldn't such a
person be both a BN and a YS by the definitions I thought you were proposing?
IOW, they aren't exclusive either.


Micha Berger (973) 916-0287          MMG"H for  7-Jun-99: Levi, Sh'lach
micha@aishdas.org                                         A"H O"Ch 325:4-10
http://www.aishdas.org                                    Eruvin 92a
For a mitzvah is a lamp, and the Torah its light.         Kuzari III 1-4

Go to top.


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