Ki Teitzei | 14 Elul 5782 | September 10th, 2022 | Issue 961
Dedicated in memory of Yaakov ben Avraham and Sarah Aharonov z"l
Why Would Anyone Use a Contract to Solve the Agunah Problem?
Rabbi Michael J. Broyde
Michael Broyde was the rosh kollel of the Atlanta Torah Mitzion Kollel for many years and is now a law professor at Emory University

Click here for the PDF version

Since this week’s parsha notes that divorce is possible in the halachic 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: halacha 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 halacha could continue to function unless somehow the halacha 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: Halacha 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 halachic 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.  Halacha 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 placeWidows were awaiting chalitza from a brother who was far away or an apostate or otherwise unfit or would not appear.  Halacha 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 halachic 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 final example is the most modern: not farming every seven years in Israel and Heter Mechira 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 halachic complexities?
The basic answer is that halacha 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 halacha on the ground is possible even in many inter-personal areas of halacha (even when they directly affect areas of marriage) when the parties agree to rules by contract.
Halacha 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 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 halachic 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!


For more Divrei Torah on the parsha click here

'One Who Loves Tanach'

A short Dvar Torah for Parashat Ki Teitze (5 min)
Lobbyist or Politician

For more weekly videos join a quiet WhatsApp group
Watch Here
 Dvir Adler ( Memphis,2020-21) stopped by to visit the Wende's ( Memphis, 2019-20) at their new home in Maaale Adumim and to wish happy birrthday to Noam Tzvi
We welcomed Rav Chaim and Shira Metzger upon their return from Toronto, after 2 years of shlichut
Uriel Tahover saying goodbye to his chevrutot in Perth
Kehilat "Yavne" in Montevideo said goodbye to our partner HaRav Moshe Ezra Nissan who completed three years of shlichut with his family  
Rav Ilai Grunwald, the new Rosh Kolell in Memphis , and the shlichim- just landed and already joined a bonding trip with the highschool students
Nechemya Rosenfeld is part of a planned Melave Malka in Nashville, preparing the kehilla for Yamim Noraim
Shemitat Kesafim Part 1: The source of the mitzvah and prozbul
Sefer Hachinuch lists three mitzvot (475, 477, 480) related to shemitat kesafim, loan remission: 
1️⃣ The obligation to cancel all loans due at the end of the shemitah year, 
2️⃣ Following the shemitah year, not to demand debts due the previous year, and 
3️⃣ Not to avoid lending to the poor in light of shemitah.
There is a dispute whether the mitzvah of shemitat kesafim today is Biblical, rabbinic, or only a zecher, a custom in remembrance of the original mitzvah. Most hold that shemitat kesafim is currently rabbinic.
📄 The prozbul
Hillel the Elder instituted the famous prozbul (we will expound on the prozbul next week). 
👨🏻‍⚖️Under this institution, individuals transfer loans owed to them to a rabbinical court, thus they are not canceled at the end of shemitah  since only loans owed to individuals are canceled.
➰ This halachic loophole completely circumvents shemitat kesafim. 
🏦 Modern posekim maintain that today anyone with a bank account should write a prozbul since it is possible that one's checking and deposit accounts, as well as sums deposited in savings accounts and pension funds, could have the halachic status of a loan. 
Thus, if one fails to write a prozbul, the bank halachically would not be obligated to return the loan after shemitah. Of course the Torah's intent is not to cancel individuals' loans to banks, thus it is recommended to write a prozbul at the end of shemitah. 
👫🏻Husbands can include their wives in their personal prozbul.
More next week
Join us on Zoom Tomorrow!
Our friend Benjy Singer has a very useful website,,
which contains accurate and fresh information of what's going on in the Religious Anglo Community in Israel.

Copyright © 2022 Torah MiTzion, All rights reserved.

unsubscribe from this list    update subscription preferences