Double Standards and Religious Disparities in Marriage Bava Kama 109-111

109

When Second Place is First Class

Our Gemara on Amud Aleph discusses the status of the Biblically penalty of an extra fifth imposed for one who confesses that he denied a theft under oath. The particular case is regarding someone who stole from his father, and then denied it under oath, and before he can make restitution, his father dies. Technically, he inherited part of the fine due to his father, and one might think that his percentage of the inheritance should be deducted off the fine, while paying the balance. However, the actual rule is that he must pay his brothers the full fine so he fulfills the requirements for penance.  Rav Yosef discusses what he should do if he is unable to find any relatives. In such a case, he should give the fine to tzedakah.

Tzedakah seems to be an all purpose solution, when the regular channel for a mitzvah is unavailable, so as to make up for the payment due his kin.

Sefer Chassidim (764 and 765) offers guidance to an individual who sought counsel regarding being denied a mitzvah.  In his town, the kibbud of rolling the Torah (which probably includes what we call Hagbah) was auctioned off in exchange for a donation to the local indigents. This individual had a consistent practice of purchasing this privilege, and he was attached and devoted to this mitzvah.  One time, a group of unsavory individuals ganged up on him and outbid him by a large margin, monopolizing ownership of this mitzvah throughout the year. The petitioner was in a moral conundrum: On the one hand, he felt this contingent was not worthy of the mitzvah due to their poor character, “and some of them cannot even read a verse.” But on the other hand, if he intervenes, in the end, the impoverished folks will lose out on the extra money.  Apparently, due to his stature and recognition in the community, the person had the ability to protest and retain his chazakah on the mitzvah, despite not being able to outbid his competitors.

The answer given was, even though the bidders were not worthy and insincere, he should let them win, so as to increase the amount of funds made available for charity.  Then, he adds an important line:  If he will continue to give what he used to give to tzedakah, even though he is now losing the bid, it will be considered a zechus for him as if he gave the larger amount of his opponent bidders.  

This is a fascinating idea, which may have practical applications. Consider a situation where one is outbid for an Aliyah.  There is no obligation, but I wonder if, based on this, he chose to pay his last offered amount. Would he get the same zechus of tzedakah as if he was the highest bidder?

Sefer Daf al Daf brings down the MIshnas Avraham commentary on Sefer Chassidim who goes even further.  He says we see from Sefer Chassidim that in regard to any mitzvah that involved a payment but is unable to fulfill, if one gives that payment to tzedakah, he receives the merit as if he performed that mitzvah.  For example, if you would normally buy an Esrog for $100 and one year there are no Esrogim available, if you gave that $100 to charity, it would count as if you did the mitzvah of Esrog!

I wonder if we may extrapolate beyond money, and broaden it to any effort. Say a person is unwell and cannot fast on Yom Kippur, but his doctors say that he would be fine just drinking water.  Would abstaining from solid food, which is the farthest effort he can make, count as if he fully fasted?  Or, perhaps there is something special and redemptive of tzedakah, and thus this principle only applies when you donate the amount of money you would have expended on the mitzvah.  Then in the case of fasting, while it might be meritorious to abstain as much as possible, it still does not count as the mitzvah.  While there is also a halakha that certain fasts can be redeemed by giving the value of the food that he eats to tzedakah (Shulchan Aruch 334:26), that may not be related to this zechus. As the case in Sefer Chassidim involves giving a payment equal to what he would have paid for the mitzvah, in our situation, fasting costs no money. So while a sign of sincerity and devotion, it is unclear if these actions would ensure the same merit of the mitzvah itself. 

110

Religious Disparities in Marriage 

Our Gemara on Amud Beis considers the scenario where a woman’s husband dies childless, and therefore she now is incumbent to a levirate marriage with her brother in law who was smitten with a repulsive skin disease.  Can this be seen as grounds to undermine the valid intent of the original marriage, as surely she never would have agreed to this marriage had she known that it could lead to her being beholden to this person? The Gemara rules that the need for companionship is generally too strong, as the rabbis believed that there was enough ambivalence toward the idea of being alone, that we could not declare with certainty that the original marriage was under false pretenses.  Apparently, to annul a marriage and invoke a claim that a marriage was under false pretenses, there must be absolute certainty that no one would have agreed to such a marriage. So long as there is some doubt, annulment cannot be granted.

Tosafos rules that even in the Gemara’s consideration that the marriage might be annulled, that was only if she was an arusa (betrothed without nisuin, which permits cohabitation.) Tosafos argues that the immediate benefits of marriage to her husband of choice coming from cohabitation outweigh any future possibility of being stuck in a levirate marriage to a repulsive brother.  We see from Tosafos that in relationships, one takes the good with the bad.  Once she is a full wife through nisuin, whatever the future may hold, she is too pleased with the present that we would consider that she absolutely would never have agreed to marry.  The good times and good memories may make it worth it, despite the later problems.

Yet, even this principle has limits. The poskim discuss a case where the brother was not physically repulsive but instead morally repulsive, such as being a mumar (one who totally rejects Torah observance.)  Noda BeYehuda (EH I:88) argues that even Tosafos would agree that in the case of the mumar brother, even if she was a nisuah and had a full marriage, the outcome of being stuck attached to a non-observant person is so unthinkable that we can use this as a basis to annul the marriage. The basic intent and agreement to be married is undermined by the certainty that she would surely and unambivalently feel it was not worth it.

This had me thinking about a not uncommon challenge that comes up with some married couples. Sometimes people get married with an assumption or explicit commitment to a level of religious observance. We see from these halachic discussions that those disappointments and gaps are felt more deeply than physical features and qualities. For a religious person, the dilution of observance is too steep a price to pay, and cannot be contextualized. In the words of Tevye, when faced with how to respond to his daughter’s impending intermarriage: “On the other hand…what IF THERE IS NO OTHER HAND?”  Tevye could not put his daughter before his religion. 

Sometimes there is a way through. When I work with couples who are suffering from conflict over major religious disparities, I encourage them to explore the distinction between values and practice. The Torah consists of practices and observances, but also values.  For example, the mitzvah is to give tzedakah, but the value is kindness.  If one does not observe the mitzvah of tzedakah, he may express the value of kindness in a different manner.  Discussions about core common values as opposed to the particulars, allows such a couple to feel close and supportive of each other, even when the observance varies.  It is toxic to live with someone who disrespects what you venerate, but it might be manageable to live with someone who agrees to many of your values, but does not share your observance level. It is upsetting to see that your husband does not go to minyan, but does he believe in the value of connecting to God through prayer?  Does he express that differently but still sincerely?  Your wife may not find certain standards of modesty bearable but does that mean she is an immodest person, or does she express the value of modesty differently?  As ridiculous as it this sounds, both a religious settler Zionist and a Niturei Karta individual share the same value: They reject any existence in Israel other than a fully realized, authentic, Messianic experience; they only disagree about how that is expressed. One rejects the modern state of Israel because it arose without God’s direct intervention and redemption.  The other believes this is the beginning of God’s process to realize our dreams.” Both of them have an ardent wish to experience the Messiah in Israel in the purest form, both are extremely zealous, and yet they have radically different practices and customs. 

Using this approach, a couple might be able to bridge their religious differences and feel close, connected and respected.  Of course there are limits and it may not work in some marriages and for some people.

111

Double Standards 

Our Gemara on Amud aleph discusses the psychological assumption that many women prefer companionship over loneliness to the extent that they might be agreeable to marry someone far less suitable than she would have initially preferred.  The statement is in a thick Aramaic, which suggests it was an adage spoken by the populace (see Rashi Kesuvos 75a “Tan” and Rashi Kiddushin 41a, “D’amar”):

The phrase, “Tav Le-Meysav Tan Du, Mi Le-Meysav Armalu” “It is better to be a pair than remain alone”, linguistically is often related by the commentaries to the Greek word “duo” or “two”, meaning double or two. For example, in Sanhedrin 38b Du-Parzufin, the primordial man was described as having a double form, male and female.

Using this understanding that “Du” can connote two in Talmudic Hebrew and other languages, different commentaries derive ethical messages from this word by way of derash. Aderes Eliyahu (Bereishis 5) reads this into the verse in (Bereishis 2:18):

וַיֹּ֙אמֶר֙ יְהֹוָ֣ה אֱלֹהִ֔ים לֹא־ט֛וֹב הֱי֥וֹת הָֽאָדָ֖ם לְבַדּ֑וֹ אֶֽעֱשֶׂה־לּ֥וֹ עֵ֖זֶר כְּנֶגְדּֽוֹ׃

said, “It is not good for the Human to be alone; I will make a fitting counterpart for him.

The Hebrew word for alone is לבדו, but he reads it as Lev Du, two hearts. Meaning, man should not be split in his loyalties, rather fully committed to God.

Similarly, Shalah (Sha’ar Haosiyos, Shin, Shetika) interprets the sin described in Viduy, “Dibarnu Dofi”, “We have spoken falsely”, as “Du-Piy”, two mouths – double speak.

Perhaps it is not a coincidence that all four of these phrases that use “du” which describe duality, also touch on the theme of loneliness. (Tan-Du, Du Parzufin, Lev-Du and Du-Piy.) Sometimes we must be alone and stand apart to stick by our convictions, but stubborn arrogance or internal duplicity leads to loneliness and lack of fulfillment.