The Sanctions of Rabbenu Tam and Their Modern-Day Counterparts: Part II

Abstract

SURVEY OF RECENT HALAKHIC LITERATURE THE SANCTIONS OF RABBENU TAM AND THEIR MODERN-DAY COUNTERPARTS: PART II J. David Bleich This study continues the examination of halakhic sanctions designed to pressure recalcitrant husbands who refuse to grant their wives a get, thereby leaving women as agunot. The column analyzes how early Israeli rabbinical courts and modern legislation have attempted to address this crisis through expanded enforcement mechanisms and examines early halakhic debates over wives' entitlement to financial support in troubled marriages and explores К. Isaac ha-Levi Herzog's controversial theory that minor financial sanctions may be permissible when traditional physical coercion is forbidden. Another novel form of enforcement that receives treatment is Israel's Hok Battei Din Rabbaniyim (1995), which authorized rabbinical courts to impose sanctions including passport revocation, professional license suspension, and imprisonment restrictions. The author identifies seven potential halakhic problems with these modern sanctions: they cannot be escaped by relocating, they explicitly connect punishment to divorce refusal, they may violate citizens' property rights in democratic societies, they transform voluntary community shunning into mandatory state enforcement, they cause forbidden shame and humiliation, they blur the distinction between rights and privileges, and they exceed the limited scope of traditional rabbinical sanctions.

Headnote

SURVEY OF RECENT HALAKHIC LITERATURE THE SANCTIONS OF RABBENU TAM AND THEIR MODERN-DAY COUNTERPARTS: PART II J. David Bleich This study continues the examination of halakhic sanctions designed to pressure recalcitrant husbands who refuse to grant their wives a get, thereby leaving women as agunot. The column analyzes how early Israeli rabbinical courts and modern legislation have attempted to address this crisis through expanded enforcement mechanisms and examines early halakhic debates over wives' entitlement to financial support in troubled marriages and explores К. Isaac ha-Levi Herzog's controversial theory that minor financial sanctions may be permissible when traditional physical coercion is forbidden. Another novel form of enforcement that receives treatment is Israel's Hok Battei Din Rabbaniyim (1995), which authorized rabbinical courts to impose sanctions including passport revocation, professional license suspension, and imprisonment restrictions. The author identifies seven potential halakhic problems with these modern sanctions: they cannot be escaped by relocating, they explicitly connect punishment to divorce refusal, they may violate citizens' property rights in democratic societies, they transform voluntary community shunning into mandatory state enforcement, they cause forbidden shame and humiliation, they blur the distinction between rights and privileges, and they exceed the limited scope of traditional rabbinical sanctions.

I. The Early Days of the State of Israel

1. Contempt of Bet Din

In the early days of the State of Israel, decades before enactment of the statutes granting Israeli Rabbinical Courts enhanced authority to enforce penalties upon recalcitrant spouses, R. Ovadiah Hedaya was questioned with regard to the halakhic propriety of a statute authorizing punishment for refusal to obey an order of a bet din as distinct from sanctions designed to compel actual execution of a get. Rabbi Hedaya's undated reaction, published in 5719 in his responsa collection, Teshuvot Yaskil Avdi, VI, по. 96, was that a bet din is empowered to impose ultra vires penalties for failure to comply with its judgment. Such penalties would be analogous to punishment for contempt of court in other legal systems.

However, Yaskil Avdi immediately qualifies that statement by stating that such is indeed the case if the original order of the bet din was correct but that, if it was erroneous in nature or if the bet din had gone beyond its statutory halakhic power in ordering the get, the order is invalid. The Knesset cannot bestow powers upon the bet din beyond those that are inherent in Halakhah. Yaskil Avdi reasons that, if the get is invalid, the order of the bet din to execute the getis beyond its authority and that there is no contemptin failing to obey an illicit order of the bet din to execute a get.? If the judgement is issued in error there can be no halakhically sanctioned punishment for its disobedience. Accordingly, Yaskil Avdi concludes that the Knesset can legitimately confer enforcement power on rabbinical courts only in cases in which the bet din finds grounds to order a get upon pain of duress.

It is well known that even when justified Rabbinical District Courts feel constrained from issuing decrees of kefiyah because of fear of judicial error and/or tainted evidence that would result in an invalid get.? According to Yaskil Avdi, the same reticence should prevent the bet din, even in cases warranting kefiyah, from imposing punishments upon the husband for disobeying its order even in cases of ma'is alai - he is repugnant to me.

Moreover, К. Moses Sofer, Teshuvot Hatam Sofer, Even ha-Ezer, 1, no. 116, long ago ruled that kefiyah is valid in cases in which execution of a get is mandated only if there is no question or controversy with regard to the husband's obligation to do so. Hatam Sofer's view must be understood as asserting that, although a Jew's "inner will" wishes to follow halakhic imperatives,· such is the case only when the matter is unequivocally clear-cut. If the matter is subject to doubt, the will to obey is similarly equivocal. The will to obey is contingent upon resolution of the doubt or controversy. Such a will is not a determinant will. Accordingly, rules Hatam Sofer, a get can be compelled only if the requirement of a get is a matter of absolute certainty but not if the matter requires adjudication between conflicting opinions."

2. Support and Maintenance in Cases of Ma'is Alai

In the usual course of events, when the husband recognizes that there is an irreversible breakdown of the marital relationship, he has a strong motive to execute a get expeditiously, namely, desire to terminate his financial responsibility for spousal support. That motive is lacking if the wife has abandoned his bed and board since she no longer has a claim upon him for support and maintenance. However, what is the status of a woman who abandons her husband for cause, i.e., because she claims "ma'is alai - he is repugnant to me"? If she is in a position to demand continued support she may well overcome the husband's recalcitrance to execute a get.

The fundamental issue is whether spousal support is an independent obligation devolving upon the husband or whether it is incumbent upon him only in exchange for performance of domestic services performed by the wife.

A nineteenth-century Sephardic scholar, К. Ya'akov Sha'ul Eliashar, Teshuvot Bnei Binyamin, no. 36, pp. 65a-66a, addresses the prerogative of a wife who is a member of the class of women whose husbands are directed "yozi ve-yiten ketubah - divorce and satisfy the ketubah."® In terms of normative Halakhah that dictum is understood as a rabbinic directive to the husband to divorce his wife, albeit a directive that cannot necessarily be enforced by means of physical duress." Bnei Binyamin's anonymous interlocutor was of the opinion that those women are entitled to ongoing financial support until a divorce is forthcoming even if they have abandoned the marital domicile. That authority based his opinion upon two arguments:

1) Rambam, Hilkhot Ishut 14:8, rules that a woman who claims ma'is alai cannot be compelled to live with her husband "and the law of the 'rebellious wife' is not applied to her." The interlocutor correctly understood the latter provision as a reference to the regulations governing spousal support, i.e., that the wife is entitled to be supported by the husband until she receives a get. Since Rambam does not qualify his ruling in any way, we must assume that the wife's entitlement to support is not contingent upon her remaining in the husband's abode but that the wife may claim financial support even if she returns "to her father's house."

Bnei Binyamin counters that argument in stating that a wife is entitled to financial support only so long as she remains in her husband's home and performs household duties as required of a wife. Consequently, if she abandons her husband's home for any reason, there is no basis to award further financial support. Bnei Binyamin compares the situation to that of a "betrothed" woman (an arusah) whose nuptials are delayed beyond the statutory period. When that transpires the groom is liable for his wife's support but he may claim her earnings. That provision reflects the consideration that a wife's "handiwork" is available to the husband as a setoff to the husband's obligation of spousal support. Bnei Binyamin infers that the converse is also true, viz., a husband who is denied his wife's household services has no further obligation of support.

2) Bnei Binyamin's interlocutor found further support for his view in Teshuvot R. Eliyahu Mizrahi, no. 30, in a case in which the husband wished to divorce his wife but the wife refused to accept a get. R. Elijah Mizrachi rules that a man who wishes to divorce his wife, but is restrained from doing so by virtue of the decree of Rabbenu Gershom forbidding a husband from divorcing his wife against her will, is relieved of any further obligation of support and maintenance. The interlocutor argued that the opposite is also the case, i.e., if the wife is prepared to accept a get but it is the husband who refuses the divorce, even though the wife cannot be obliged to live with him, the husband remains liable for her support. A similar ruling is also found in the work of the nineteenth-century Sephardic scholar, К. Abraham Antebi, Teshuvot Morva-Ahalot, Even ha-Ezer, no. 10, with regard to a husband who suffers from epilepsy. That authority rules that, since a wife cannot be compelled to live with a person suffering from such a medical condition, the husband remains liable for his wife's maintenance even if she leaves the marital domicile.

Bnei Binyamin rebuts this second argument by pointing out that liability for spousal support is coextensive with the wife's inability to enter into a second marriage. Ifitis the husband who wishes to divorce his wife butis not permitted to do so against her will by virtue of the edict of Rabbenu Gershom, it is not the husband who prevents his wife from seeking another marriage partner; itis the wife herself who creates that situation by refusing to accept a get. In contradistinction, the obligation to support a betrothed woman devolves upon the groom at the time that the wedding ceremony should take place and there is no reason that failure to consummate the marriage should relieve the husband of that obligation. The difference between the two situations is that a husband is entitled to divorce his wife against her will but is prevented from doing so by the decree of Rabbenu Gershom whereas in the case of the arusah, the groom is under obligation to marry and support his bride and she is not free to seek another marriage partner.

Quite to the contrary, argues Bnei Binyamin, Bet Shmu'el, Even ha-Ezer 117:22, rules that a husband who suffers from epilepsy has no obligation of support vis-a-vis his wife. Bet Shmu'el explains that, since the wife will not continue to share his domicile, she is no longer in a position to fulfill her domestic obligations and, consequently, the husband has no reciprocal obligations vis-a-vis his wife. Similarly, Shulhan Arukh, Even ha-Ezer 160:1, rules that, whether or not he has agreed to perform halizah, a person whose brother died without issue is not liable for support of his widowed sister-in-law because the widow performs no wifely services on his behalf

Nevertheless, К. Abraham 1. Kook disputes Bnei Binyamin's position and maintains that those spousal obligations are not reciprocal or contingent upon one another. In a responsum dated 5692 and published in Ezrat Kohen, no. 56, Rabbi Kook rules that, unlike a "rebellious wife," a woman who abandons her husband pursuant to a claim of ma'is alai is entitled to ongoing support and maintenance provided that there is an umdena, i.e., demonstrable contextual circumstances, that lend cogency to her contention."

It is quite obvious that Rabbi Kook's concern was not that support and maintenance actually be paid to the wife but that the obligation be used in terroram, i.e., as a threat designed to motivate the husband to execute a get in order to terminate an ongoing financial burden." Ezrat Kohen rejects the basic position that a husband's obligation of support is contingenton the wife's fulfillment of domestic duties. Ezrat Kohen's novel point is that, although Rambam's ruling, Hilkhot Ishut 14:8, to the effect thatifa wife claims ma'is alai the husband may be compelled to divorce her is not accepted as normative, nevertheless, if the wife can present cogent reason in support of her claim of ma'is alai, she is entitled to ongoing support until she receives a get.

Most authorities rule that in instances of an allegation of ma'is alai execution of a get is delayed for a period of twelve months in order to provide time and opportunity for reconciliation. Maggid Mishneh, Hilkhot Ishut 14:8, rules that a wife is not entitled to support during that period even though she claims ma'is alai. However, Hagahot Maimuniyot, ibid, sec. 5, citing Tosafot, states that, if the wife alleges ma'is alai, she is entitled to ongoing financial support. Ezrat Kohen asserts that there is no contradiction between those two authorities. Tosafot's ruling that she remains entitled to support, contends Ezrat Kohen, applies only when the wife supports her allegation with an атайа mevureret, i.e., clear grounds that explain why the husband is repugnant to her. Maggid Mishneh's denial of support, argues Ezrat Kohen, is limited to circumstances in which there is no атайа mevureret. Ezrat Kohen asserts that upon culmination of the twelve-month period (or immediately according to the authorities who rule that the twelve-month period is notimposed in cases of ma'is alai),? all authorities would agree that the wife is entitled to support until a get is forthcoming, provided that her claim of ma'is alai has demonstrable basis.

In support of his ruling Ezrat Kohen cites Tosafot Rid, Ketubot 64a, who comments that, in abandoning her husband, a woman who alleges ma'is alai acts under duress caused by an intolerable marital situation and "should not be compelled in any way" to remain with her husband. Ran, in his commentary ad loc., comments that a woman who claims ma'is alai "loses nothing." The inference drawn by Ezrat Kohen is that a wife who alleges ma'is alai retains all marital privileges, including entitlement to supportand maintenance."

However, Ezrat Kohen recognized fully well that a wife's earnings may be claimed as a credit that either reduces or entirely eliminates her claim for spousal support." In an age in which more and more women have become wage-earners the value of spousal supportas a potential tool designed to assure the husband's cooperation in executing a get is sharply diminished.

3. An Expanded View of De Minimis

Minimal financial loss, physical pain or inconvenience are regarded as inconsequential nuisances that cannot be significant factors in shaping a will." In the context of a case brought before the Rabbinical District Court of Jerusalem, the then chief rabbi of Israel, R. Issac ha-Levi Herzog, Pe sakim u-Ketavim, VII, Even ha-Ezer, no. 157, secs. 52-53 and no. 158 secs. 13 and 15, formulates a very expansive view of the threshold level of a de minimis loss. Rabbi Herzog categorizes the sanctions of Rabbenu Tam as coercive but de minimis in nature and hence, he maintains that those sanctions may validly be imposed only because they fall below the threshold level of duress. Duress is defined by Rabbi Herzog as "subjecting a person to a measure that he cannot bear, much as physical pain, or а huge monetary sum that would destroy him." In accordance with that view, he concluded that some financial sanctions may be applied even in situations in which there are no grounds for actually compelling divorce.

Rabbi Herzog bases himself primarily upon R. Jacob of Lissa, Torat Gittin, Even ha-Ezer 134:4, who rules that, if a husband is forced to divorce his wife in return for money, the get is invalid. That situation is unlike the situation of a person who is forced to sell property under threat of duress in which case the sale is valid. Such a sale is valid only if the seller is paid full market value; if the seller is proffered less than market value, the transaction is regarded as a coerced gift that is invalid. Torat Gittin asserts that a get executed under duress in return for financial consideration is invalid because whatever sum is paid to the husband may not be equal to the value of a continued spousal relationship. A wife may be beloved by her husband and more valued than any riches that might be proffered in her stead. If so, unlike a sale for fair market value in which the seller makes a reasoned decision albeit under duress to sell his property in return for fair value, the husband cannot be considered to have willingly accepted the funds in return for terminating the marital relationship.

Avoidance of a freely-assumed actionable penalty for non-execution ofa get may, however, not be comparable to a gratuitous transfer of property under duress because of an entirely different consideration formulated by Rashba and cited by Bet Yosef, Even ha-Ezer 134:8. Rashba asserts that avoidance of a self-imposed penalty is not the equivalent of surrender to fear of being deprived of something of value. Since the husband has voluntarily assumed the penalty for non-performance, argues Torat Gittin, he has, in effect, signaled that his wife is not more valuable to him than the penalty he is willing to incur for failure to grant a get. In such a situation, assumption of the penalty is not duress but acceptance of what the husband's assessment of the value of the marriage is to him, viz., no more than the cost of release from the penalty for non-execution of a divorce. Since the husband receives a sum that he regards as proper compensation, there is no duress in seeking release from the penalty.

However, any thesis based upon Rashba's explanation alone cannot establish that a husband who divorces his wife to avoid imposition of liability for support during a period of separation - as distinct from avoidance of a self-imposed penalty - does not constitute duress. Rather, Rashba's ruling, standing alone, establishes only that, at times, a husband may genuinely reach a freely-willed determination to divorce his wife, not because ofa financial inducement, but because, entirely independent of his desire to prevent ongoing financial liability, avoidance of the penalty would resultin a situation in which the genuineness of the husband's acquiescence would remain a matter of doubt.

Hence, Rabbi Herzog melds the joint position of Rashba and Torat Gittin with Teshuvot Zemah Zedek's thesis regarding minimal financial duress. The threatofa de minimis financial loss, asserts R. Menachem Mendel Schneersohn, Teshuvot Zemah Zedek, Even ha-Ezer, no. 262, does not constitute duress because no person succumbs to insignificant financial duress. Consequently, if a person does alienate property - or divorce his wife - when threatened with de minimis loss, he cannot be said to have acted because of such threat. A threat of that nature is not sufficient to constitute duress because a person has no great desire to avoid a negligible loss - or perhaps to continue a marital relationship - that must be overcome. The result is a genuine mental determination to enter into the sale - or even a divorce - in order to avoid a minimal loss because the person does notregard the status quo to be of any great value to him.

The problem is the definition of de minimis. Rabbi Herzog reasonably assumes that the upper limit of de minimis is relative in nature. A dime is probably de minimis even to a pauper but wealthy individuals have been known to add a fifty-dollar gratuity to payment of a ten-dollar restaurant check. The uppermost sum considered to be lacking in significance will certainly vary from individual to individual and will, in all likelihood, include a grey area of indeterminacy.

In substantiating his position Rabbi Herzog cites the particular case addressed by Zemah Zedek as an example. Awoman had embezzled 515 rubles from her husband and returned 400 rubles in exchange for a get. The husband subsequently challenged the validity of the get claiming that he had agreed to execute a get, but only in exchange for the full amount of 515 rubles. The husband claimed that he had granted the get even though the full sum had notyet been paid only because he assumed that he would yet be able to recover the additional 115 rubles in alleging, albeit incorrectly, that failure to deliver the balance would render the get invalid. Zemah Zedek ruled that, under those circumstances, 115 rubles represent a de minimis loss and hence the validity of the get was not subject to challenge. Rabbi Herzog concludes that only a threat of financial ruin constitutes duress.

There is no question that in the days of Zemah Zedek 115 rubles represented a princely sum. Zemah Zedek's ruling certainly supports the notion that de minimis is a relative concept but it does not support the conclusion that only a threat of impoverishment constitutes financial duress. The sum of 115 rubles can be regarded as de minimis only because the husband was quite prepared to allow his wife to retain that comparatively small amount of money pending execution of a get. In such a context, it may well be assumed that the additional 115 rubles were not the straw that would break the camel's back. Willingness to allow payment of such a relatively paltry balance to abide delivery of a get indicates that the husband did not regard the sum as being consequential. It is reasonable to assume thata person who accepts 400 rubles of a 515 claim is not acting because of fear that delay would result in loss of the remaining sum. Were that the case, the husband would certainly be acting because of duress. The husband certainly wished to be paid in full but, by accepting payment of 400 rubles, he signified that he did not regard recovery of the relatively small balance as a "deal breaker." In addition, if the wife was able to purloin 515 rubles, it is likely that the husband's total fortune was far greater than that amount and that 115 rubles represented a relatively small sum to a man of such wealth. Nevertheless, those factors did not preclude him from alleging duress in the hope that his allegation that non-payment invalidates the get would publicly embarrass his wife or otherwise prompt her to disgorge the remaining 115 rubles. That sum may well be regarded as trivial but that categorization does notimply that only a sum the loss of which would impoverish the husband constitutes duress.

Furthermore, Zemah Zedek's statement that 115 rubles is a de minimis sum must be understood in context. Rabbi Herzog's assertion that 115 rubles was an extravagant sum of money in the days of Zemah Zedek and Rabbi Herzog's additional citation of Mishnah Berurah to the effect that a halfshekel contribution in fulfillment of the obligation of mahazit ha-shekel was beyond the means of most people even in his day when the value of the rubles was far less than in the nineteenth century are certainly correct. However, those facts fail to establish that only a loss that would impoverish the husband constitutes duress. Moreover, Rabbi Herzog's argumentisnotapropos gumentisnotapropos because Zemah Zedek's statement does not pertain to actual loss of 115 rubles but to the loss of a much smaller

sum. In the case addressed by Zemah Zedek, a woman had purloined 515 rubles from her husband and demanded a get in return for restoring those funds. The husband refused. The money was placed in escrow and the parties entered into arbitration. The ruling of the arbitrators was that the money held in escrow be given to the husband and that, in return, he execute a get. The wife later reneged and refused to authorize the final 115 rubles of that sum. The husband accepted the 400 rubles and granted a get, only to claim that the get was invalid because the wife failed to honor her agreement to return the sum of 515 rubles in its entirety. In that context, Zemah Zedek writes:

In the instant case in which, since, in accordance with the ruling of the arbitrators and custodians [of the funds], the husband was willing and would have granted a get and only because she refused and wished to give him only 400 rubles and [the husband] announced in advance (mosar moda'ah) [that the forthcoming get would be invalid] that it may be said that the sum of 115 rubles in comparison to 515 rubles is not a great amount and [hence] is not absolute duress and is no worse than the sanctions of Rabbenu Tam that are not regarded as absolute duress. We have already seen that [the husband] has agreed to divorce [his wife] and [hence] the duress of 115 rubles is not absolute duress.... Only a significant amount of money relative to the financial status ofthe husband [constitutes duress, whereas] a small sum is no worse than the sanctions of Rabbenu Tam that are not duress."

Although [the husband] he was forced to leave the sum of 115 rubles in her hands, that does not render the get illicitly forced because the meaning of "illicitly forced" with regard to financial duress is that, if [the husband] does not grant a divorce, he will lose his money but as a result of the get he will not lose his money. That is relevant in this case with regard to the 400 rubles which they withheld until he would give a get as has been stated... But the 115 rubles that [she] did not return to him even upon [execution of the] divorce as undertaken does not represent any duress with regard to the divorce. The [money] which she stole [remains stolen] whether [the husband] executes a get or does not execute a get has nothing to do with coercion of a get. Rather, it is because he wishes to divorce [his wife]... and be rid of her in order to marry another [woman] that he is forced to leave that sum in her hand. That is not duress. It is as if a husband wishes to divorce a wife but she does not agree to accept a get until her husband gives her a manah (one hundred shekalim) and the husband must give that sum to her to be rid of her in order to marry another woman... and he, because of his great desire to divorce, gives [her] the money so that she accepts the get. Only because of his great desire to divorce does the husband give [her] the money so that she will accept the get."

In a concluding statement Zemah Zedek states:

Similarly in this case, even though she retains 115 rubles, [the husband] certainly assumes that, even if he then does not divorce her, he will not lose [the 515 rubles] entirely but [will sustain] only a small loss, i.e., withholding the funds without profit or the like, and the financial duress is small. That is not duress that would compel the husband to divorce."

Zemah Zedek's summary contains the essence of his argument. Zemah Zedek assumes that the husband took it for granted that the tumult caused by his allegation of duress would result in ultimate recovery of the remaining 115 rubles. Consequently his loss was limited to foregone profits during the brief period of time during which the funds were not available to him for investment or other mercantile purposes. That sum would certainly have been far less than 115 rubles. In terms of relative comparison, the husband's loss would not have been 115 rubles as compared to 515 rubles but the loss of foregone profits that might have been realized by investment of 115 rubles but the loss of for a brief period of time compared to loss of 515 rubles in their entirety. The relatively minor loss of profit that might have been generated by investment of 115 rubles may quite reasonably be considered as de minimis.

Nowhere does Zemah Zedek state that anything short of the threat of financial ruin does not constitute financial duress. Although in his lengthy responsum Zemah Zedek does refer to the relative burden of the loss suffered, his ruling does not rest upon that factor. Quite to the contrary, his argument is that a husband's voluntary agreement to divorce his wife in return for a significant amount of money and his acceptance of a somewhat lesser sum evidences a desire to be free of his wife. Under the circumstances, his complaint cannot be accepted as a reflection of actual duress butonlyasan attempt to presenta claim, cause embarrassmentand create doubt in the eyes of others in order to apply pressure upon his wife to return the balance to him. The only loss to the husband was forfeiture of the profit that might have been generated by investment of 115 rubles.

In an article appearing in a memorial volume commemorating the fiftieth anniversary of Rabbi Herzog's death titled Masu'ah le-Yizhak (Jerusalem, 5769), pp. 332-342, Rabbi Shlomoh Dichovsky amplifies Rabbi Herzog's thesis by citing a ruling of R. Moshe Feinstein, Iggerot Mosheh, Even ha-Ezer, 1, no. 134.° Iggerot Mosheh addresses a situation in which a civil court awarded a wife an enhanced periodic sum in the form of spousal support to be paid to her so long as the husband continued to withhold a get. Iggerot Mosheh rules that such an award does not constitute duress because, even if it was the case that the sum awarded by a civil court was more generous than the amount that would have been awarded by a bet din, it would be only a marginally higher amount and therefore does not constitute duress. That statement is probably factually incorrect. Since the award was motivated by the Court's desire that the husband deliver a get, itis likely that the sum actually awarded was more than marginally excessive and almost certainly significantly more than the same court would award as ongoing alimony. But, were it true, Iggerot Mosheh's responsum establishes only that "a minor sum (a davar mu'at)" is not duress but does not support the expansive conclusion drawn by Rabbi Herzog.

Rabbi Dichovsky goes beyond the position that de minimis financial loss does not constitute duress in ruling that the same principle can be applied to incarceration for failure to obey an order of the bet din to deliver a get. Rabbi Dichovsky argues that a person who genuinely wishes to remain married would agree to spend several days in prison "and perhaps even a few weeks" in order to avoid termination of the marriage." If so, claims Rabbi Dichovsky, the threat of imprisonment for a short period oftime is not duress that invalidates a get. Based upon his view that a brief period of imprisonment is de minimis, Rabbi Dichovsky advocates that a short jail term be imposed upon any husband who persists in refusing his wife a get subsequent to a decree by the bet din of hayyav le-garesh.?

Rabbi Dichovsky himself agrees that financial sanctions "that are likely to result in financial ruin" of the husband are halakhically viable only if a judgment of kefiyah has been entered but "monetary sanctions that cause pain but do not ruin" the husband are permitted even in cases in which the judgment is that there is a halakhic hiyyuv, or obligation, to grant a get."

4.Ultra Vires Sanctions

Rabbi Herzog advocates yet an additional measure that is generally regarded as inappropriate. Rabbi Herzog notes that the Rabbinical District Court of Jerusalem had, on occasion, ordered payment of support and maintenance in cases in which the wife was not entitled to support or in which her earnings were sufficient to render her ineligible for such an award. Rabbi Herzog points to the sanctions of Rabbenu Tam as an example of ultra vires sanctions that he contends would be forbidden in other contexts as causing unjustified anguish.

Rabbi Herzog maintains that ultra vires corporal sanctions may be applied by a local or regional bet din only if it is "the need of the hour for the benefit of society" but not in an instance in which it is applied for the benefit of an individual. In contrast, hefker bet din, or expropriation of assets, he asserts, can be exercised by the Supreme Rabbinical Court of Israel even for the benefitofan individual. If so, it follows that an ultra vires monetary award can be entered only by the Supreme Rabbinical Court rather than by a district court."

5. Duress in Cases of Hayyav le-Garesh

Israeli rabbinical courts couch their decisions regarding execution of religious divorce in contested cases in four different terms: 1) kofin le-garesh (duress); 2) hayyav le-garesh (obligation); 3) mizvah le-garesh (moral desideratum); and 4) mamlizim le-garesh (recommendation). Consequently, most battei din employ the sanctions authorized by the Hok Battei Din Rabbaniyim (Kiyyum Piskei Din shel Geirushin), 5755 - 199525 only in situations which fall into the category of kofin le-garesh. Some battei din regard the sanctions of Rabbenu Tam as justified even when they find only that the husband is hayyav le-garesh. Presumably, in not limiting imposition of those sanctions to instances of kofin le-garesh, the latter battei din understand the original Dina de-Metivta as legislation without a biblical basis but promulgated by virtue of rabbinic authority mandating a get in some situations. The effect of such legislation is to trigger retroactive annulment of the marriage by expropriation of the wedding ring.?· Rabbenu Tam did not recognize physical duress and the consequential retroactive annulment of marriage as a valid means of enforcing a rabbinic edict. That effectively precluded physical duress or incarceration for failure to execute a get in cases of ma'is alai. However, Rabbenu Tam did recognize an allegation of ma'is alai as legislative grounds mandating termination of a marriage. That edict can be enforced by imposing the sanctions enumerated by Rabbenu Tam because, in his opinion, they do not rise to the level of duress.

In comments appended in addenda to Ozar ha-Poskim, Il, sec. 28,27 Rabbi Herzog tentatively argues that improper imposition of duress renders the get invalid only if compulsion is entirely without foundation. However, in situations in which the appropriate order is verbal compulsion or a sanction less severe than duress and the bet din erroneously issues a decision of kefiyah the get is valid. Rabbi Herzog asserts that even in those cases, since, in the opinion of Rambam, Hilkhot Ishut 2:20, it is the "desire of Heaven" that the husband give his wife a get, the husband's "inner will" does indeed wish to execute the get.?® Rabbi Herzog's position, however, is contradicted by a host of authorities? and is contrary to the ruling of Rema, Even ha-Ezer 154:21, and the authorities upon whom Rema relies. As noted, there is a controversy with regard to the connotation of the term "yozi" as employed by the Gemara. Some authorities understand the term to include license for kefiyah. Other authorities understand the word as establishing an obligation to grant a get but not as a mandate Гог kefiyah. Citing Rosh and Tur Shulhan Arukh, Rema rules that in such cases, despite the clear obligation to execute a get, physical duress should not be employed "so thatit not be a compelled get."

The doubtexpressed by Rabbi Herzog is with regard to precisely what it is that the "inner will" desires. If the desire of the will is coextensive with Divine will, i.e., the "inner will" of a Jew mirrors everything that God desires of him, whether a bet din may legitimately impose actual duress is irrelevant; it is sufficient that an obligation does exist. But if that will is not so closely in tune with the Divine will it can only be said that the inner will wishes that which is actually mandated by the Deity as evidenced by halakhic provisions for duress. If so, it cannot necessarily be said that even that which is wished by God but not made a sanctionable offence by Him is also desired by the inner will." To employ a crude analogy, some

children will seek to obey the parent's wishes only when accompanied by fear of retribution; others strive to fulfill every directive of a parent even when unaccompanied by a threat of punishment.

Thus, a bet din might apply the sanctions enumerated in the Hok Battei Din Rabbaniyim of 5755 - 1995 if it is prepared to rule that those sanctions are no more onerous than the sanctions of Rabbenu Tam and that there are indeed factors, particularly a demonstrable claim of mais alai, sufficient to establish the husband's obligation to execute a divorce. Both premises are subject to debate and controversy. Rabbi Herzog's thesis provides no basis for imposing those sanctions if the directive to the husband is couched in terms such as "mizvah le-garesh" or "mamlizim le-garesh."

Some authorities also recognize those limitations but expand the definition of ma'is alai in an extremely broad manner. A literal reading of Rambam, Hilkhot Ishut 14:8, would seem to restrict ma'is alai to allegations that cohabiting with a such a man is odious because of a physical condition or perhaps because of some personal character flaw." However, some authorities recognize that other situations may also result in a situation of ma'is alai. For example, a husband's habitual gambling, even though it may not affect the economic stability of the household, or affect his wife in any concrete way may be grounds for divorce if the wife finds his conduct morally odious to the point thatit renders sexual intimacy геpugnant to her.3 Other authorities do not require that the wife explicitly assert ma'is alai and are prepared to interpret the wife's abandonment of the marital abode when rooted in the husband's inappropriate conduct, if such conduct can be established, as tantamount to an explicit allegation of ma'is alai.

Il. Legislative Counterparts to the Sanctions of Rabbenu Tam

In light of the social demographics of the Diaspora and the modern-day structure of the Jewish community, it is unlikely that invocation of the sanctions of Rabbenu Tam would be of any significant effect. Even in Israel where a recalcitrant husband might find it unpleasant to have some of his compatriots sever social and commercial ties with him, invoking the sanctions of Rabbenu Tam would, at best, secure only limited cooperation.

However, in Israel, the rabbinical court system is an arm of the State judiciary and enjoys significant enforcement power in matters subject to its jurisdiction. Reflective of the mores inherent in the penal codes of Western countries, Israel does not permit corporal punishment.?· Nevertheless, from the early days of the State of Israel, the rabbinical courts have had the power to incarcerate a spouse who refuses to comply with a direct order to cooperate in execution of a get."

In Israel, the State exercises authority over many areas of life that in most Western countries are not subject to government regulation and control. The State's authority might readily be harnessed in order to make matters difficult for someone who does not heed a directive of a Rabbinical Court. The Hok Battei Din Rabbaniyim (Kiyyum Piskei Din shel Geirushin), 5755 - 1995 and subsequent amendments thereto was designed to do precisely that by granting Rabbinical Courts authority to impose a variety of legal sanctions against a person who refuses to obey an order of a Rabbinical Court requiring him to divorce his wife.

Prior to 1995 the only enforceable sanction available to a bet din seeking compliance with an order to execute a get was imprisonment of the recalcitrant husband. However, in practice, battei din availed themselves of that authority only sparingly because of their conviction that neither imprisonment nor the threat of imprisonment is available for use as a halakhically viable sanction in instances other than those relatively rare circumstances in which Halakhah provides for kefiyah, i.e., physical duress.? It is Halakhah, not the law of the State, that curtails use of kefiyah as a means of enforcement.

The situation changed dramatically in 1995. The Hok Battei Din Rabbaniyim 5755 - 1995 authorized Israeli rabbinical courts to impose additional sanctions, including preventing the recalcitrant husband from: 1) leaving the country; 2) holding or obtaining a passport; 3) holding or renewing a driver's license; 4) holding a government position or a position in any government-affiliated entity; 5) engaging in the practice of any profession regulated by law or conducting any business enterprise requiring a license or legal permission; 6) opening or maintaining a bank account or drawing checks on a bank account; and 7) serving as an officer of a charity.'

Putting aside the halakhic viability of those sanctions, such measures could not serve as a cudgel to secure compliance of a recalcitrant husband already imprisoned for other reasons or of a husband imprisoned pursuantto a decree of kefiyah who remains obstinate in his refusal to execute a get.? That lacuna was filled by additional provisions providing sanctions designed to be applied specifically against already incarcerated persons. The Hok Battei Din Rabbaniyim 5755 - 1995 provides that a prisoner may be precluded from: 1) being granted a furlough or early release; 2) sending or receiving mail or sending telegrams; 3) receiving visitors with the exception of authorized visits of legal counsel, minor children or an "ish dat" (a "man of religion"); 4) retaining personal possessions in prison; 5) engaging in remunerated employment; 6) partaking in educational activities; 7) receiving food prepared under kosher certification other than as provided to all prisoners; 8) being held in a section reserved for religiously observant prisoners; and 9) wearing clothing other than prison garb. The prisoner may also 10) be placed in solitary confinement for a stipulated period of time; 11) be denied writing implements and/or reading material, with the exception of a sefer tefillah (prayer book), while held in solitary confinement; and 12) be subjected to imposition of a monetary fine."

Additional provisions further authorize the bet din to: 1) impose punishment identical to that provided by the statute governing contempt of an Israeli civil court, including incarceration, for a period(s) not totaling more than ten years of time; 2) attach pensions or allowances in order to satisfy an order of support in favor of a wife and/or children; 3) seize any portion of the recalcitrant person's property; 4) award compensation to the aggrieved party;· and 5) impose the sanctions of Rabbenu Tam" upon the recalcitrant spouse or upon any person who urges the recalcitrant party to flout the order of the bet din or abet him in doing so.

Most significant and most far-reaching is the first paragraph of Hok Battei Din Rabbaniyim 5755 - 1995. That section declares that the law applies to any decision of the bet din whether couched in words such as "kefiyah," "hovah," "mizvah" or any other term including "haza'ah,"3 or proposal. The Hok immediately continues by declaring that, unless otherwise stated, the penalties prescribed by the statute may be applied for non-compliance with a judgment described as "kefiyah," "hovah" or "mizvah" and that, if other terminology is employed, the bet din must stipulate that sanctions may be imposed as provided by the Hok.

Originally the enforcement power vested in the battei din was limited to incarceration. The 5755 - 1995 Hok provides for less onerous sanctions as enumerated in the statute and provides that those sanctions be applied at the unlimited discretion of the bet din. Insofar as the civil law is concerned, the bet din may impose the newly authorized sanctions, regardless of whether or not there exist halakhic grounds for duress.

A bet din recognizing that its authority is circumscribed by Halakhah to cases of kofin might certainly avail itself of coercive measures that fall short of corporal punishment or imprisonment in cases warranting kefiyah. If the sanctions of Rabbenu Tam do constitute a form of duress and, for that reason, are limited to instances in which a valid claim of mais alai is presented, the bet din would have no problem in applying those sanctions provided that the bet din is prepared to accept the propriety of imposing Rabbenu Tam's sanctions in instances of ma'is alai.··

It is clear that the legislative intent of the newly-enacted Hok was to provide a modern-day counterpart to, or extension of, the sanctions of Rabbenu Tam to be imposed in situations in which imprisonment is precluded because there are no grounds for kefiyah. However, from a halakhic perspective, imposition of the sanctions authorized by the Israeli statute when kefiyah is not warranted is highly problematic for a number of reasons:

1) The version of Rabbenu Tam's sanctions reported by Teshuvot Maharik, shoresh 135, and recorded by Mordekhai, Shevu'ot, sec. 757, makes imposition of those sanctions contingent upon the husband having the opportunity to relocate in a place in which the sanctions cannot be enforced against him. " The sanctions enumerated in the Hok Battei Din Rabbaniyim 5755 - 1995 are applied throughout the State of Israel. Withdrawal of a professional license prevents a person from engaging in that profession anywhere in the country rather than justin the city or district in which he resides. In most cases, canceling or withholding a passport deprives a person of any possibility of leaving the country. Even citizens of a foreign country holding a passport issued by their own country cannot take advantage of their foreign nationality in order to leave Israel."

2) A host of authorities maintain that there may not be an explicit linkage between the sanctions and execution of a get. Constraints posed by principles of due process of law binding upon the rabbinical courts in Israel render non-disclosure of that information impossible.

3) From the vantage point of Jewish law, property not vested in private individuals and not res nullius is owned collectively by the citizenry, much as common areas of a condominium are owned collectively by the condominium owners. Towns, cities, provinces and countries are partnerships in which citizens are joint tenants quite similar to the nature of ownership of public areas within a gated community or a condominium. Breaching rules and regulations of a gated community or of a condominium is not necessarily punishable by eviction unless so specified in its by-laws.

Joint ownership of public assets finds expression in various provisions of Jewish law. A person who declares his personal property anathema (konam alai) is forbidden to derive benefit from communal property such as a Torah scroll because he enjoys a partnership interest in synagogue artifacts."® A person is required to recite a blessing before donning his own tallit but one may not do so when using a tallit that is only "borrowed" from another." Nevertheless, a person must pronounce the blessing when using a tallit provided by the synagogue by virtue of his partnership interest in communal property.s°

"Dina de-malkhuta dina - The law of the land is the law" is a wellknown halakhic dictum.°' However, justification of that principle requires careful elucidation. There is no immediately evident reason that would compel Jewish law to incorporate, recognize or apply alien statutes. A number of diverse theories have been advanced by early-day authorities in order to justify incorporation of dina de-malkhuta dina as a principle of Jewish law." The twelfth-century authority, R. Eliezer of Metz, Sefer

Yere'im, no. 24, and the many authorities who followed him explain that dina de-malkhuta dina is based upon the legal consideration that "the land is his," i.e., the monarch holds title to all land subject to his jurisdiction and hence may justifiably banish from his realm any of his subjects who do not obey his decrees. That justification significantly limits the ambit of the rule. One twentieth-century halakhic decisor, R. Malkiel Zevi Tennenbaum, Teshuvot Divrei Malki'el, VI, no. 65, sec. 24, asserts that it follows from Sefer Yere'im's thesis that dina de-malkhuta dina is not at all operative in a democracy.>3 In a representative democracy, the people, not the sovereign, own the land and no individual can be arbitrarily expelled. If, in a democratic society, the State does not have a halakhically recognized right to force its nationals into exile, the State is left without halakhic authority to enforce dina de-malkhuta.>·

In some countries the monarch owns the roads and highways and may, at his discretion, either grant or withhold permission for use of the King's roads. In contradistinction, a person's exercise of property rights in property held by a partnership is a right, not a privilege. In a democracy, every citizen is entitled to use the roads and highways as a matter of right. Withholding a driver's license is denial of enjoyment of jointly held property. If so, when designed to influence conduct, denial of a driver's license is no less a coercive measure than extortion of cash.

4) A license to practice a profession, e.g., to serve as a physician, a lawyer, or even to work as an electrician, plumber or barber, may well be a boon conferred by the State but, once granted, does a professional license represent a property interest? There are a number of reasons to regard a professional license as a property interest:

i) In the American legal system, a license often has monetary value. Divorce courts routinely recognize a professional license as part of a couple's community property, the value of which must be monetized and divided in the distribution of marital assets.

ii) In Jewish law, a person need not expend more than onefifth of his capital in order to avoid transgressing a positive commandment. A physician who provides life-saving medical treatment against a patient's express desire not to be treated may be placed in a position in which he faces loss of his medical license. Assuming that fulfillment of the mizvah of pikkuah nefesh requires expenditure of no more than one-fifth ofa person's fortune,° may the physician refrain from treating the patient at the cost of forfeiting his license? It is quite likely that a medical license is worth far more than the total value of all other assets owned by the physician, particularly a young physician. Refraining from treating a patient can be justified only if the value of a license to practice medicine is monetized and its value assessed as greater than one-fifth of the physician's net worth.

Ш) Some authorities rule that a hetter iska may be entered into in conjunction with a student loan in order to create a joint venture and thereby avoid paying or receiving interest because the lender becomes a partner in the "business" in which the studentis being trained and hence entitled to derive profit from that joint venture." If so, the monetary value of a license is its capitalized value over the lifetime of a professional. Consequently, denial or revocation of a professional license represents seizure of a sum equal to the value of the license.

5) In most legal systems there is a marked distinction between rights and privileges. For example, unimpeded enjoyment of lawfully owned property is a right whereas welfare payments provided to the indigent by the State are a privilege. In common law, freedom to marry is a right whereas divorce, at least at one time, existed only as a boon bestowed by the sovereign. In the American constitutional system even a privilege cannot be withheld without legal cause. The result is a significant conflation of the notions of right and privilege."" In other countries that distinction remains embedded in the legal system.

As has been explained in Part 1 of this article," although many authorities maintain that favors, beneficences and privileges may be withheld in order to effect execution of a get, rights may be curtailed only if kefiyah is appropriate. Is a driver's license a matter of right oris it a privilege conferred by the State? In the United States, where constitutional provisions dictate that privileges cannot be withheld arbitrarily that distinction blurs into insignificance. In other countries the question of whether withholding a driver's license would be an acceptable sanction can, in all likelihood, be equated with a more basic question: Who owns the roads - the government or its citizens? In non-democratic societies, use of the "King's" highways is a privilege that can be arbitrarily withheld by the sovereign or by the government. In democratic societies, whether categorized as a right or as a privilege, itis a prerogative akin to enjoyment of one's own property and cannot be withheld other than for just cause.

6) Causing a person shame, humiliation or embarrassment is forbidden. As stated earlier, many authorities reject imposition of Rabbenu Tam's sanctions other than when directly authorized by Halakhah. Demonstrations in the vicinity of a person's home and/or place of employment designed to shame and humiliate the recalcitrant husband are certainly forbidden® unless the target of those demonstrations has been ordered by a bet din to deliver a get to his wife or the husband is declared an avaryan, i.e., a lawbreaker, because he is in violation of a rabbinic decree.® The reason that application of Rabbenu Tam's sanctions is limited to specific instances of recalcitrance seems to be that since those sanctions are perforce accompanied by a measure of shame and humiliation, that factor in itself constitutes duress and, hence, unless explicitly sanctioned, results in invalidating a get."

Pain, shame, humiliation, embarrassment and emotional anguish can also carry dollar tags. In instances of battery, recovery for pain is the sum a person would pay for anesthesia to avoid the pain inflicted in the course of an assault. Boshet, i.e., shame or humiliation, is also assessed in terms of monetary value." This writer has argued® that to the extent that the sanctions authorized by the Israeli statute cause shame and humiliation that one would pay to avoid, the sanction is no different from financial duress.°® Unwarranted shame and humiliation have a monetary value in

that most people would expend money in order to avoid the embarrassment and emotional distress that such measures entail. Emotional coin of such nature is to be equated with financial duress that can result in a get me'useh.

This consideration has ramifications far beyond application of the Hok Battei Din Rabbaniyim 5755 - 1995 in the State of Israel. In the diaspora as well, modern-day counterparts have supplanted the sanctions of Rabbenu Tam. Pressure upon an employer to terminate an employee who refuses to execute a get usually entails a financial loss to the employee. Quite apart from the issue of the employee being able to find comparably remunerated employment, financial loss is suffered during the period in which the employee is without work while seeking a new position. In addition, if pain, shame, humiliation and distress and their avoidance have monetary value, there is additional financial duress represented by the amount the employee would be willing to expend in order to avoid the aggravation, discomfort and tension of seeking and obtaining new employment.

7) As stated earlier," some authorities maintain that when the sanctions of Rabbenu Tam are applied no explicit connection between those sanctions and the husband's recalcitrance should be announced. That is possible only because the sanctions of Rabbenu Tam are essentially measures involving shunning that are available to the bet din for a wide variety of reasons. In contradistinction, sanctions enumerated in the Hok Battei Din Rabbaniyim are available only for failure to execute a get and are publicly recognized as such.

Footnote

1 Cf., however, the opinion of R. Isaac ha-Levi Herzog, infra, note 24 and accompanying text as well as R. Samuel Gertner (Jerusalem, 5779), Kefiyah be-Get, sec. 81.

2 The dictum "Do not depart from the path that they declare unto you right or left' for even if they appear to [tell you] that left is right" (Sifri, Devarim 154) does not reflect a doctrine of infallibility with regard to factual matters nor does it effect halakhic reality. A scholar who recognizes that the Bet Din ha-Gadol has erred may not instruct others to act contrary to their ruling and if he himself follows their mistaken ruling because mitzvah li-shmo'a divrei hakhamim he is culpable. See Horiyot 2b. See also R. Isaac ha-Levi Herzog, Pesakim u-Ketavim, VII, no. 157, sec. 47:2. The comments of Rabbenu Nissim of Gerondi, Derashot ha-Ran, derush 11, establish only that no spiritual or metaphysical harm will occur as a result of innocently obeying an erroneous directive.

3 There is a controversy among early-day authorities regarding whether the get is biblically invalid or invalid only as the result of a rabbinic edict. See Bet Shmu'el, Even ha-Ezer 154:10.

4 See Rambam, Hilkhot Geirushin 2:20.

5 For further analysis of the view of Hatam Sofer see R. Samuel Ehrenfeld, Teshuvot Hatan Sofer, Even ha-Ezer, no. 59 and R. Chaim Chizkiyahu Medini, Sedei Hemed, ma'arekhet geirushin, no. 1 sec. 15. СЕ, however В. Isaac Elchanan Spektor, Ein Yizhak, Even ha-Ezer, no. 35, as cited by Rabbi Herzog, Pesakim u-Ketavim, VII, no. 157, sec. 29 and no. 158, sec. 12; R. Zevi Pesach Frank, Teshuvot Har Zevi, Even ha-Ezer, 11, no. 183; Hazon Ish, Even ha-Ezer, no. 69, sec. 23; and R. Joseph Goldberg, Elu she-Kofin le-Hozi (Jerusalem, 5773), addenda, no. 2.

6 See Ketubot 70a; Ketubot 71a-b; and Yevamot 64a.

7 See Shulhan Arukh, Even ha-Ezer 154:21 and Elu she-Kofin le-Hozi 1:1, notes 2-3.

8 СЁ, however, Piskei Din Rabbaniyim, Il, 74 and II, 194, in which the bet din, citing Teshuvot Maharit, 1, no. 113, ruled that, in a case in which the wife is entitled to abandon her husband, the husband remains liable for support even if he cannot be compelled to grant a get. Maharit rules that an obligation of support arises from the fact that the wife is me'ukevet mi-linase mahmateih (prevented from remarrying because of him). See infra, note 9. Cf., however Teshuvot R. Akiva Eger ha-Hadashot, по. 51 and Rabbi Herzog, Teshuvot Heikhal Yizhak, Even ha-Ezer, 1, no. 1, sec. 6:53 and no. 2, sec. 5:52, as well as his Pesakim u-Ketavim, VII, no. 158, secs. 19-21 and sec. 28.

9 Rambam, Hilkhot Ishut 18:16, rules that, if the widow summons her brother-inlaw to bet din demanding that he either enter into a levirate marriage with her or perform halizah and the brother-in-law absconds, he is liable for support. Bet Yosef, Even ha-Ezer 180:1, indicates that an obligation for support is imposed on the brother-in-law upon a summons demanding his appearance before a bet din because the widow is prevented from remarrying by the brother-in-law's failure to act (me'ukevet mi-linase mahmateih). Shulhan Arukh, Even ha-Ezer 180:1, adopts the position of Rosh, Yevamot 41b, who disagrees with Rambam's ruling to the effect that the brother-in-law becomes obligated to support his brother's widow immediately upon being summoned to appear before a bet din. Bnei Binyamin explains that Rosh maintains that the primary rabbinic enactment is for spousal support and, in return, the wife's handiwork is assigned to the husband whereas, for Rambam, the obligation of support, once invoked, remains in effect so long as the wife's inability to remarry is the result of the husband's inaction (me'ukevet me- mi-linase mahmateih) and is independent of the wife's conduct unless she is "rebellious."

10 This is also the view of Rabbi Herzog, Heikhal Yizhak, Even ha-Ezer, 1, no. 2, sec. 4 and по. 3, sec. 3. See as well R. Saul Israeli, Mishpetei Sha'ul, no. 19, pp. 147 and 153, who rules that a wife who alleges ma'is alai is entitled to support. That position is disputed by В. Joseph Shalom Eliashiv, ibid., pp. 152 and 154. See also Teshuvot Maharam Alshikh, no. 8, who rules that there is no obligation of supportin such instances. For further discussion see К. Haggai Izirer, "Hiyyuv Get u-Mezonot le-Moredet de-'Ma'is Alai, Birurim be-Hilkhot ha-Re'iyah (5752), pp. 193-244, reprinted in Shurat ha-Din, II (5754).

11 Much later, without citing Rabbi Kook, В. Shlomoh Dichovsky, Tehumin, XXVI (5766), 178-179, proposed a similar expedient to achieve the same effect. Torat Gittin, Even ha-Ezer 134:4, rules that a financial undertaking to execute a divorce prior to a date certain may be enforced once that date has passed. The financial obligation remains enforceable even if the husband subsequently grants a get. Torat Gittin rules that forgiveness of that independent obligation in return for a divorce is not duress. Rabbi Dichovsky proposed that the Rabbinical Courts be empowered to impose financial penalties for prior non-execution of a get following an order of the bet din to do so. The penalty would be payable to the wife in the guise of remuneration for pain, suffering and humiliation (rather than support and maintenance) arising from failure to execute a get. That penalty would be actionable even if the husband ultimately executes a get; however, the husband might be relieved by the bet din from payment of the penalty if he subsequently cooperates in executing a get. Rabbi Dichovsky concedes that such financial penalty can be imposed only once lest the husband have grounds to contend that he agreed to the get, not simply to avoid the already actionable penalty, but in fear of imposition of additional penalties. That proposal was later incorporated in the Hok Battei Din Rabbaniyim 5755-1995. Rabbi Dichovsky's own concession gives rise to the argument that the very enactment of legislation authorizing the bet din to impose such a penalty, of which the recalcitrant husband will certainly become aware, is itself coercive in nature. The counterargument is that, provided that the imposition of a penalty is left to the discretion of the bet din, the mere possibility of a penalty does notitself constitute duress. However, any threat on the part of the bet din voiced in the course of their proceedings to impose such a penalty would constitute financial duress. See |. David Bleich, Be-Netivot ha-Halakhah, | (New York, 5756), 43-49 and sources cited in Pulmus Gittei ha-Kazav, 2" ed. (Jerusalem, Tevet 5779), р. 59, note 92 and р. 64, note 106. Moreover, it is far from clear that, despite legislative authorization, a bet din has the power to impose such a sanction. See infra, note 24 and accompanying text. In addition, В. Shimon ben Zemah Duran, Tashbaz, 1, no. 1, rules that such indirect means of compelling a get is appropriate only if no reference is made to execution of a divorce in proceedings instituted in order to impose a financial obligation. See Torat Gittin, Even ha-Ezer 134:4. Only after the award is made may it be forgiven by the wife in return for a get. Cf., however, Pithei Teshuvah, Even ha-Ezer 134:11, who cites authorities who disagree.

12 See К. Jonathan Eybeschutz, Bnei Ahuvah, Hilkhot Ishut 14:10. Teshuvot Rivash, no. 104, maintains that no get may be executed during that period unless the husband has satisfied the ketubah in full.

13 Cf., however, Teshuvot Radvaz, Ш, no. 849, who rules that the wife is not entitled to maintenance. Ezrat Kohen dismisses that opinion in contending that Radvaz' ruling also applies only in a case in which the wife advances no supporting amatla. Nevertheless, both Rashba and Ritva, Ketubot 64a, state that the obligation of support is designed to preserve the marriage - a goal which cannot be achieved when the wife seeks its dissolution. See Kefiyah be-Get, p. 54, note 82.

14 See, however, Ве'ег Heitev, Even ha-Ezer 80:1, who notes that the husband is entitled to his wife's handiwork in return for his financial support in order to prevent animosity on the part of the husband that might ultimately lead to their separation. If so, since the wife has no obligation to return to her husband his enmity could only lead to a divorce which in such a case is a desideratum. Hence, in such a situation there is no reason to assign the wife's handiwork to her husband. See Pesakim u-Ketavim VII, no. 158, sec. 22.

15 See |. David Bleich, "The Sanctions of Rabbenu Tam and Their Modern-Day Counterparts: Part 1," TRADITION, vol. 57, no. 2 (Spring, 2025), pp. 133-137.

16 Pesakim u-Ketavim, VII, Even ha-Ezer, no. 157, sec. 52 and no. 158, sec. 17. See also Teshuvot Heikhal Yizhak, Even ha-Ezer, 1, no. 1, sec. 6:52.

17 Zemah Zedek, Even ha-Ezer, no. 262, sec. 3.

18 Ibid., sec. 8.

19 Ibid. sec. 8.

20 A shorter version of this article appeared somewhat earlier in Tehumin, XXVII (5767), 300-303.

21 For a discussion of de minimis physical duress see "Sanctions of Rabbenu Tam: Part 1," pp. 135-136.

22 Rabbi Dichovsky apparently regards depriving a physician of his medical license and forcing him to seek employment as a porter in a hospital as even less onerous than a de minimis sanction and, seemingly, as a measure that may be applied even when there has been no decision to the effect that the husband is hayyav le-garesh.

23 Rabbi Dichovsky fails to elucidate the basis upon which the bet din might be authorized to render a monetary judgement or to impose other sanctions in accordance with Halakhah or, ifsuch power exists, why it cannot be invoked even when divorce is merely "advised" or "recommended" by the bet din.

24 See also Pesakim u-Ketavim, VII, no. 158, sec. 18. Cf., supra, note 1 and accompanying text. For an array of opinions regarding who may exercise the power of hefker bet din, see Encyclopedia Talmudit, X (Jerusalem, 5722), 105-109. Rabbi Herzog's statement was probably more aspirational than actual. For example, decisions of the Rabbinical Supreme Court of Appeals are not deemed binding precedent even upon Israeli Rabbinical District Courts.

25 Adetailed discussion of this enactment follows in sec. Il of this article.

26 See Encyclopedia Talmudit, II (Jerusalem, 5716), 134-140. Contrary to Rambam, Hilkhot Ishut 2:20, Teshuvot ha-Radvaz, no. 1,028, maintains that even in instances of kefiyah the effective mechanism is retroactive annulment of the marriage. See Elu she-Kofin le-Hozi, pp. 25-28. For views of other early-day authorities, see ibid., p.10.

27 See also Pesakim u-Ketavim, VII, no. 157, sec. 28.

28 See Pesakim u-Ketavim, VII, no. 157, sec. 22.

29 See Tosafot, Ketubot 70a and Yevamot 64a; Hagahot Asheri, Ketubot 7:1; Rosh, as cited by Tur Shulhan Arukh, Even ha-Ezer 154; Rema, Even ha-Ezer 154:21; and R. Isaac Elchanan Spektor, Be'er Yizhak, p. 125b. Cf., Pesakim u-Ketavim, VII, no. 157, sec. 49.

30 See "Sanctions of Rabbenu Tam: Part 1," pp. 143-144 and р. 144, note 81.

31 Fora discussion of why the Sages decreed kefiyah in some cases but not in others see Pesakim u-Ketavim, VII, no. 157, sec. 19.

32 See R. Chaim ben Abraham Algazi, Netivot Mishpat, р. 217b. Rabbi Herzog, Pesakim u-Ketavim, VII, no. 158, sec. 5, asserts that Rambam had prescient knowledge of a psychiatric condition presently known as haphephobia in which the afflicted individual cannot bear tactile contact with another person. Rabbi Herzog claims that such a condition may manifest itself with regard to sexual contact with a particular person. See also ibid., no. 133, sec. 2. Tosafot Rid, Ketubot 64a, also explicitly defines ma'is alai as a reference to intercourse. See also Teshuvot Zemah Zedek, Even ha-Ezer, no. 262, sec. 11 and Piskei Din Rabbaniyim, XXI, 223-224.

33 It should not routinely be assumed that a situation of ma'is alai arises in every divorce. The Mishnah, Gittin 81a, clearly considers the possibility of cohabitation between a couple even after divorce. In our day such a phenomenon may not be as rare as it might seem. See R. Emanuel Feldman, Tales out of Shul (Brooklyn, New York, 1996), p. 187. Many years ago there came to the attention of this writer an instance of a couple in Russia who cohabitated on the very eve of a get. It is not unknown to observe a couple exhibiting physical signs of affection during get proceedings. Matters may well change during a long period of separation, protracted settlement negotiations and obstinacy of the husband in executing a get, but ma'is alai need not be a necessary concomitant of separation or divorce. Cf., the conjecture of R. She'ar Yashuv Cohen, Tehumin, XI (5750), 196, to the effect that every woman who demands a get is to be considered as constructively claiming ma'is alai. The basis for that allegation is Rambam, Commentary on the Mishnah, Gittin 88b: "But if the [non-Jews] compelled [the husband] in regard to [a divorce] to which Jewish judges obligated him, for example, if the wife demanded divorce or the divorce was mandated by the Torah..." Rambam does not explicitly qualify the phrase "the wife demanded divorce" in any way. See, however, К. Joseph Kafah's edition of Rambam's Commentary on the Mishnah (Jerusalem, 5728), Nashim-Nezikin, V, 164, note 18 in which Rabbi Kafah correctly comments, "in [the case of a woman who] alleges ma'is alai as Rambam wrote in Hilkhot Ishut 14:8." The position of Rabbi Cohen was originally advanced by Mishpetei Shmuel, по. 22, sec. 3, pp. 152-153. See also Teshuvot Zemah Zedek, Even ha-Ezer, no. 262, sec. 11.

34 Ina situation involving a husband serving a fourteen-year sentence for rape and molestation of minors who refused his wife a get, the Rabbinical District Court of Haifa, Piskei Din Rabbaniyim, VIII, 128, expressed the desire that Rabbinical Courts be given authority to impose corporal punishment in situations in which threat of imprisonment is meaningless.

35 See Hok Shipput Battei Din Rabbaniyim (Nisu'in ve-Geirushin), 5713-1953, sec. 6.

36 The Gemara, Pesahim 51a, speaks of a prison administered by Jews. Rashi explains that those prisons served "for example, to compel a husband to divorce a wife forbidden to him."

37 Surprisingly, R. Saul Israeli, Amud ha-Yemini, in an introduction to responsum no. 19, and in his Mishpetei Sha'ul, nos. 17 and 19, declares that, in democratic societies, imprisonment does not constitute duress but represents only "prevention of freedom of movement comparable to an order preventing [a person] from leaving the country." See also Heikhal Yizhak, Even ha-Ezer, 1, no. 5, sec. 2:5. Such orders are routinely issued by Israeli Rabbinical Courts. That observation ignores the fact that many versions of the sanctions of Rabbenu Tam permit their imposition only if the husband is free to relocate elsewhere. See "Sanctions of Rabbenu Tam: Part 1," pp.127-131. The various restrictions placed upon incarcerated persons are certainly as onerous as the sanctions of Rebbenu Tam and hence should themselves constitute duress since an incarcerated person certainly cannot relocate elsewhere. Moreover, Zemah Zedek, Even ha-Ezer, no. 262, sec. 12, depicts forced removal from family and place of habitation as exceedingly onerous. The notion that imprisonment in an Israeli jail is not duress is contradicted by К. Ben Zion Abba Sha'ul, Or le-Zion, II, no. 14, sec. 51, who rules that birkat hagomel must be recited even ifimprisonment was only for a single day. Cf., however, К. Ovadiah Yosef, Hazon Ovadiah, Hilkhot Tet-Vav Be-Shevat, р. 360. К. Eliyahu BakshiDoron, Teshuvot Binyan Av, 1, no. 6, asserts that such obligation is encompassed in the controversy between Shulhan Arukh and Rema, Orah Hayyim 219:8. See also К. Yitzchak Yosef, Yalkut Yosef, VIII, р. 569 and К. Joshua Ehrenberg, Teshuvot Dvar Yehoshu'a, Ш, no. 31, sec. 2. К. Shlomoh Amar, Shema Shlomoh, VIII, Orah Hayyim, no. 4, rules that a prolonged period of incarceration constitutes danger for purposes of Sabbath restrictions. See also Pulmus Gittei ha-Kazav, p. 42, note 45.

38 Rabbi Dichovsky observes that in many hardcore agunah cases the legislated sanctions are ineffective because the husband has no property or bank accounts and does not engage in a trade or profession that requires a license.

39 The most egregious case involved a Yemenite immigrant married to a woman 16 years his junior. Pursuant to bet din proceedings, the husband was ordered by the bet din to divorce his wife. Upon failure to do so he was imprisoned and remained incarcerated for some 32 years. Yihye and Ora Avraham were married in Yemen when Yihye was 28 and Ora was 12. Ora left her husband at the age of 24 when the couple was already living in Israel and were the parents of two daughters. Yihye, claiming that he continued to love his wife, repeatedly refused to execute a divorce. In 1962, he was given an open-ended sentence of imprisonment by a Rabbinical Court. Yihye apparently acclimated himself to life in prison and had no desire to be released. See Ze'ev Falk, Tevi'at Geirushin mi-Zad ha-Ishah be-Dinei Yisra'el (Jerusalem, 5733), р. 46. Over the course of years, Yihye was offered blessings by prominent rabbis, freedom and lodging in an expensive retirement home in return for acquiescence in executing a get. After suffering a cerebral hemorrhage while still in prison Yihye Avraham died at the age of 82 in 1994 without having executed a get. At the time of his death the government was attempting to "evict" him from prison on grounds of ill health. See Jewish Telegraphic Agency Bulletin, February 13,1993, November 30,1994, December 8,1994, as well as Los Angeles Times, December 6, 1994.

40 As reported by Rabbi Dichovsky in Masu'ah le-Yizhak (Jerusalem, 5769), р. 333, an additional proposal was advanced to include withdrawal of electricity and municipal water from such persons but that proposal was not supported by the Israeli Misrad ha-Mishpatim primarily because of the likely unintended effect of that measure upon other guiltless persons sharing the same dwelling.

41 Rabbi Dichovsky, ibid., р. 341, advocates a fine of NS100 per day limited to cases of hayyav le-garesh. He describes that sum as "causing pain but not financial ruin." He justifies that penalty as being comparable to the sanctions of Rabbenu Tam. That depiction is subject to serious challenge. See "Sanctions of Rabbenu Tam: Part 1," pp. 127-131 and 137-142. See the lengthy discussion of R. Joseph Shalom Eliashiv, Kovez Teshuvot, IV, nos. 168-169, in which he seeks to demonstrate that financial duress invalidates a get even in circumstances in which physical duress is permissible.

42 The statute defines the sanctions of Rabbenu Tam as "religious, social and economic sanctions that a bet din imposes in accordance with the laws of the Torah for refusal of a get. Included in those sanctions are being counted toward a quorum for prayer, conversation with the sanctioned party, business dealings with him, hosting him or visiting him when sick." One can only wonder how many members of the Knesset were actually familiar with the measures enumerated in the sanctions of Rabbenu Tam since the sanctions of Rabbenu Tam listed in the statute do not track any published version of Rabbenu Tam's sanctions nor is it clear why the penal power of the state must, or can, be invoked to apply those sanctions. It is hard to imagine that the intent was to empower a bet din to prohibit Israeli nationals from offering lodging or refreshment to the sanctioned husband or from visiting him when confined because of illness or to prevent the warden of a synagogue from counting him toward a quorum for prayer since the statute provides no punishment for those individuals. Perhaps the intent was to incorporate by reference the "catch-all" clause included in the sanctions of Rabbenu Tam authorizing any "stringent measure" the bet din might choose to impose, e.g., withholding sale of a ticket to a theater or sporting event. If so, absent provision for enforcement against a person who violates such a ban by providing the prohibited benefit, the provision is entirely ineffective.

43 Some decisions of the rabbinical courts employ the term "mamlizim - we recommend" which is certainly encompassed in the meaning of the statute.

44 Many years ago а legal scholar proposed naming to the Israeli Rabbinical Courts only Yemenite rabbis or others who have no compunction in issuing a decision of duress upon the allegation that the wife disdains her husband. See Ze'ev Falk, Tevi'at Geirushin, р. 123. Quite apart from the impropriety of that proposal it would not be a panacea solving the agunah problem in Israel: 1) Yemenite authorities were not univocal in following the ruling of Rambam. See letters published by R. Ya'akov Sha'ul Aliashar, Ma'aseh Ish, Even ha-Ezer, no. 11 and Piskei Din Rabbaniyim, Ш, 205-206. СЕ, К. Ovadiah Yosef, Yabi'a Omer, Ш, no. 19, sec. 21. 2) It is quite likely that upon immigrating to Israel those persons became obligated to accept the stringencies of their new place of domicile. See Yabi'a Omer, ibid., sec. 22. 3) It cannot be assumed that every agunah can truthfully claim ma'is alai. See supra, note 33.

45 Rabbi Dichovsky, Masu'ah le-Yizhak, р. 337, states without elaboration that the Rabbinical Courts "have limited themselves to imposing sanctions only in cases of hiyyuv."

46 See "Sanctions of Rabbenu Tam: Part 1," pp. 127-131.

47 It is for that reason one bet din declared all of the State of Israel to be "a single place." See Kefiyah be-Get, p. 483, who states thatimposition of the sanctions of Rabbenu Tam in the State of Israel coupled with an order preventing the sanctioned party from leaving the country constitutes kefiyah. Cf., however, the contradictory opinion of the Rabbinical District Court of Tel Aviv, No.1164937/2, р. 35. There may be room for disagreement with regard to whether Israel is to be considered as "one place" in light of the fact that in contemporary times many Israelis will ignore the sanctions of Rabbenu Tam. See "Sanctions of Rabbenu Tam: Part 1," р. 118, note 24. However, such a position loses all cogency if the sanctions provided by the amended Hok Battei Din Rabbaniyim 5755-1995 - which are enforceable throughout the country - are imposed and enforced by the law of the State.

48 See Shulhan Arukh, Yoreh De'ah 224:1.

49 For the distinction between borrowing and a conditional gift, explicit or constructive, see Mishnah Berurah 14:11.

50 See ibid., ВГиг Halakhah 14:11.

51 That dictum is adduced four times in the Babylonian Talmud in the name of the amora Samuel: Gittin 10b; Nedarim 28a; Bava Kamma 113a; and Bava Batra 54b.

52 For a comprehensive analysis of those theories and their ramifications, see Samuel Shilo, Dina de-Malkhuta Dina (Jerusalem, 5735).

53 - К. Eliezer of Metz is himself cited in early-day sources as maintaining that, consistent with his thesis regarding the basis of dina de-malkhuta dina, the principle does not apply in the Land of Israel precisely because the land does not belong to the sovereign but is held in partnership by all Jews. Title to that territory was vested in individual members of the nation of Israel who entered into the Promised Land. See Encyclopedia Talmudit, VII (Jerusalem, 5747), 307, note 140 and Shilo, Dina deMalkhuta Dina, p.100.

54 R. Joseph Elijah Henkin, Ha-Pardes, Nisan 5719, pp. 3-6, reprinted in Kol Kitvei ha-Griy'a Henkin, II, chap. 96, р. 175, asserts that the notion that the sovereign has the right to banish a subject from his land that serves as the basis for dina de-malkhuta dina is not to be understood literally. Rather, the important factor is that [the residents of the country] "receive benefit from the government, both in domicile itself in that they are domiciled within its borders but primarily from ongoing beneficences, e.g., the government provides them food at affordable prices, water and illumination at a low price, bridges and roads and protects them." If the nature of a representative system of government is that of a partnership, Rabbi Henkin's argument is a non-sequitur. Rabbi Henkin claims that "the land is his" is a broad concept and includes ownership of other types of property, such as water, without which one could not live in the city. Rabbi Henkin's extension of the notion "the land is his" is obscure. The basic point remains the same. Denial of access to a well or water delivered by means of an aquifer or reservoir also constitutes duress if the water is publicly held. СЕ, Shilo, Dina de-Malkhuta Dina, р. 80. Cf. also, Teshuvot Hatam Sofer, Hoshen Mishpat, no. 44, s.v. akh.

55 The primary issue is whether avoidance of a passive transgression of a negative commandment requires expenditure of no more than one-fifth of a person's wealth or of his entire fortune. See Pithei Teshuvah, Yoreh De'ah 252:4, and numerous sources cited by Abraham S. Abraham, Nishmat Avraham, Hoshen Mishpat (Jerusalem, 5474) 426:1. For additional sources and the contradictory views of R. Joseph Shalom Eliashiv and R. Yitzchak Zilberstein see Nishmat Avraham, V (Jerusalem, 5757), Hoshen Mishpat 426:1.

56 See Contemporary Halakhic Problems, 11 (New York, 1983), 380.

57 In Sherpert у. Verner, 374 U.S. 398 (1963) and Shapiro м. Thompson 394 U.S. 618, 394 U.S. 627, note 6 (1969), the U.S. Supreme Court rejected any distinction between a "privilege" and a "right" with regard to procedural due process in ruling that constitutional restraints apply to withdrawal of public assistance benefits. In Goldberg м. Kelley, 397 U.S. 254 (1970), the Supreme Court again declared: "[R]elevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherpert у. Verner, 374 U.S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S. 513 (1958); or to discharge from public employment, Slochower у. Board of Higher Education, 350 U.S. 551 (1956)." In Bell у. Burson, 402 U.S. 535 (1971), the Supreme Court further held that revocation of motor vehicle registration or of a driver's license without a hearing is a violation of due process.

58 "Sanctions of Rabbenu Tam: Part I," pp. 137-143.

59 Ibid., р. 143. See also Bava Mezi'a 58b; Sefer Hasidim, ed. Reuven Margolies (Jerusalem, 5704), no. 54; Shulhan Arukh, Hoshen Mispat 420:39; R. Menasheh Klein, Mishneh Halakhot, IX, no. 353; Aviad Hacohen, Parshiyot u-Mishpatim (Tel Aviv, 2011), 105110; and К. Yehudah Zoldan, Tehumin, XXXVII (5777), 294-306. Teshuvot ha-Rashba ha-Meyuhasot le-ha-Ramban, no. 404, cited by Bet Yosef, Even ha-Ezer 154, states explicitly that permissible verbal persuasion does not include humiliation. Teshuvot Rivash, no. 127, cites the identical statement with the omission of the words "ve-lo yevazuhu-but not humiliate him." That omission reflects a variant reading of Rashba but certainly does not imply that Rivash permits humiliation or embarrassment of a person who is not labeled a transgressor. СЕ, R. Michoel Zylberman, Sha'arei Zedek, XIX (5779), 136.

60 Such measures are certainly warranted in instances in which a husband refuses to heed a summons of a bet din demanding his attendance when a claim or complaint has been lodged against him. See Rema, Hoshen Mishpat 11:1.

61 Labeling a person a transgressor and other forms of humiliation are not integral to the sanctions of Rabbenu Tam but are independently permitted even by those authorities who reject imposition of the sanctions of Rabbenu Tam. See Shulhan Arukh, Even ha-Ezer 154:21. However, such embarrassment may not be caused unless the person is found to be a transgressor. Cf., К. Michoel Zylberman, Sha'arei Zedek, XIX, 135.

62 See the strong language employed by R. Ephraim Chaim Krinizi, Teshuvot Pnei Efrayim, (Montreal, 5784), Even ha-Ezer, pp. 781-782, with regard to unauthorized sanctions, including demonstrations, shaming the husband and excluding him from attendance at synagogue, all of which may potentially invalidate a get.

63 Shulhan Arukh Hoshen Mishpat 420:16.

64 Shulhan Arukh Hoshen Mishpat 1:2 and 1:5 as well as Hoshen Mishpat 420:38 and 420:41.

65 See "Sanctions of Rabbenu Tam: Part 1," pp. 132-133.

66 Iggerot Mosheh places the sanctions of Rabbenu Tam in the same category as economic duress. See "The Sanctions of Rabbenu Tam: Part 1," pp. 131-132. There is indeed a significant controversy among early-day authorities regarding whether economic duress constitutes duress that renders a get invalid. That controversy may be with regard to limiting the notion of duress to corporal punishment or extending it to include other forms of duress as well, including shame and humiliation. Iggerot Mosheh's position equates the sanctions of Rabbenu Tam with economic duress in regarding those forms of compulsion as relatively equal in interfering with the exercise of volition but not as compulsive as physical duress. However, if the matter is understood, not as extending the ambit of duress to other forms of compulsion, including, inter alia, shame and humiliation, but as recognizing shame and humiliation and their avoidance as simply representative of economic value, the question is transformed into whether a person would expend funds to avoid the type of humiliation that is suffered. It may then be the case that even those authorities who do not regard the threat of financial loss as duress would agree that shame and humiliation are intrinsically more onerous than financial loss and therefore constitute duress and, although more onerous than financial loss, monetary compensation is awarded because no other form of redress is possible.

67 See "Sanctions of Rabbenu Tam: Part 1," р. 145. See also К. Moshe Sternbuch, Teshuvot ve-Hanhagot, V, no. 344.