Marriage contract (ketuba), ring
Marriage contract (ketuba), ring(Flash 90)

Since this week’s parsha notes that divorce is possible in the halakhic tradition, it is a good time to address the need for prenuptial agreements to solve the modern problem of igun, a shorthand for the difficulties that arise when a man and woman marry in an Orthodox ceremony and then the man refuses to give the woman a get, a Jewish divorce, leaving her chained to her absent Jewish husband.

In the last 40 years, the approach we actually used regularly in our community in American is a prenuptial -- a contract signed by parties before they married that encourages the husband to give and wife to receive a Jewish divorce so as to avoid paying $150 a day in support until a get is delivered.
But why a contract? Why not legislation? Or case law? Or something else? Why have all the other seeming great solutions failed?

Indeed, any quest for solution to the agunah problem starts from a point that is very important: halakha has confronted deep challenges before to its very system of rules in specific areas – such that some people living at those times and places were not sure halakha could continue to function unless somehow the halakha as practiced was changed in this area or that area – and it survived that process of change without being ripped asunder. How did it do that?

The answer is clear: Halakha actually has provided a rich history and context of contract law for us to work with here to solve the agunah problem.

Five distinctly different examples are provided to persuade the reader of the range of uses of contract in halacha.

The first is debt forgiveness and Prosbul: The halac\khic system of debt forgiveness assumed a landed economy and the mercantile economy was being deeply hindered by the inability to make loans with any assurance that the money would be repaid. Hillel decrees that there is a mechanism to be used to solve this problem called prosbul, which works by contract – since a bet din does not have to discharge debt during shemitta, a creditor will sell or give his debt to bet din which will collect on his behalf.

How does this work? One has to use the prosbul (a contract) in order for it to be effective. If one does not actually use the contract – sign it in front of a bet din – it does not work. No contract, no solution.

The second is owning bread on Passover and Mechirat Chametz: With the popularity of whiskey trade among the Jews, Jews found themselves in a Pesach bind: they had large amounts of valuable but not perishable chametz and the classical idea of discarding all chametz for Pesach proved very economically challenging. Halakha adopts a contract based solution: A person will sell his chametz to a gentile by contract, while keeping functional possession so as to make sure that the gentile does not sell it or drink it. In order for this to work, the Jew has to use the contract of sale before Pesach. No contract, no solution.

The third is levirate divorce and Agunah from Yibum: During the early and late medieval period, the Jewish tradition confronted an enormous practical challenge from yibum, the Torah directive (also in this weeks parsha at Devarim 25:5-6) that if a husband dies childless, his brother may marry his widow (yibum), and if he does not, then the chalitza ceremony should take place. Widows were awaiting chalitza from a brother who was far away or an apostate or otherwise unfit or would not appear.

Halakha adopted a contract based solution: at the time of marriage, husband and wife enter into what we would now call a pre-nuptial agreement grounded in conditional marriage. Husband and wife agree that if he should die without children, the marriage is void; if they did not actually make such an agreement, then this solution did not work. No contract, no solution.

The fourth is charging interest on loans and Heter Iska: In more modern times and with the rise of the interest-driven economy, the halakhic prohibition of interest was proving to be economically impossible to observe. The absence of interest payment was simply making the economic situation impossible to function. The solution adopted and accepted is the contract one. The parties sign an agreement recasting their loan as a business deal and the interest payments as profit payment. To make this work, what do the parties have to do? Make an agreement. No contract, no solution.

The fifth and final example is the most modern: not farming every seven years in Israel and Heter Mechir a for Shemitta: The modern settlement in Israel has restarted about 150 years ago and it was an agricultural enterprise. Rigorous observance of the prohibition against farming every seven years, it was claimed, might jeopardize the resettlement of the land -- what to do?

The answer again lies in contract and agreement: sell the land to a gentile to putatively avoid the prohibited activity, with the understanding that after shemitta, the owner will buy the land back; If one does not sign the heter mechira contract for shemitta, then it does not work. No contract, no solution.

Why contract law to fix halakhic complexities?

The basic answer is that halakha has much more dynamic contract doctrines with deeper systemic ambiguities or loopholes– even in areas that impact ritual or family law – than it has in other areas. Dramatic changes in the halakha on the ground is possible even in many inter-personal areas of halakha (even when they directly affect areas of marriage) when the parties agree to rules by contract.

Halakha recognizes that if two people agree to do something, it creates a deep sense that the individuals should try to honor such an agreement, if at all possible, even if the agreement might be less than ideal sometimes or even sinful. Why exactly this is the case is for a separate article, but one can point to six interwoven Jewish Law ideas:

(1) Jewish Law’s broad and deep acceptance of conditions in almost all agreements, including marital ones;

(2) Jewish Law’s general enforcement of agreements even that violate Jewish Law – so even a conditional marriage that results in an after the fact arrangement of non-marital intimacy, is a valid condition;

(3) Jewish Law’s emphasis on formalism as an important type of legal reasoning;

(4) Jewish Law’s flexible consideration (kinyan) doctrines;

(5) Jewish Law’s like of “workaround” solutions to complex problems that avoid direct resolution of intractable halakhic disputes;

(6) The acceptance of the idea that a self-imposed penalty validates an otherwise invalidated divorce agreement.

All together these have created a “perfect storm” within Jewish Law for contract law to be very powerful. And it is.

So, what is the solution to the agunah problem? The answer is clear -- and has been for a while – It lies in contract law. The excellent Beth Din of America agreement still in use works very well in nearly all cases, although it does depend on secular law and enforcement.

Just remember to sign it!

Rabbi Michael J. Broydewas rosh kollel of the Atlanta Torah Mitzion Kollel for many years and is now a law professor at Emory Universitycomments: [email protected]

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