Halachic Prenup
Designating a Bet Din
- The first section of the halachic prenup selects a bet din to judge in the event of any question of a divorce.
- It is halachically binding to accept to be judged by a specific bet din.
There is a question here of "kinyan devarim," that is, making an acquisition to follow through on a person's words alone. If this acceptance of a bet din is considered a "kinyan devarim" that would not be halachically binding even if a halachic act of acquisition was done to solidify that decision. Chazal (Bava Batra 3a) establish that if a person agrees to take a certain action to split a joint courtyard that Chazal didn't mandate be split he could back out. The usual kinyan (act of acquisition) that is effective to make a deal binding, such as kinyan chalipin, is ineffective with regards to taking an action and not actually transacting any asset. This concept is codified by Rambam (Shechenim 2:10), Tur, and Shulchan Aruch C.M. 157:2 unanimously.[1] It is reiterated in Shulchan Aruch C.M. 203:1 more generally. There it states that if a person agrees to walk to a certain place and makes a kinyan to that effect, it is void and non-binding.
Does that apply to the decision to have one's case adjudicated in a specific bet din? Based on Shulchan Aruch, the answer seems to be a resounding no, but the question is why. Shulchan Aruch C.M. 13:2 establishes that two litigants can accept to be judged by a certain bet din and when it is accepted by both parties in a written contract it is binding. Similarly, Rama there writes that if they did a kinyan chalipin to agree to the chosen bet din that is binding. Similarly, Shulchan Aruch C.M. 12:7 holds that an act of acquisition is binding upon someone who agrees to adjudication through compromise (peshara). Even though Rama 12:7 quotes Mordechai[2] who disagrees and holds that it is an issue of kinyan devarim to make a kinyan that he is accepting a judgement of compromise and will pay if necessary, nonetheless, that is unique to agreeing to a judgement by compromise because a person doesn't know what that involves.
Shach 22:4 writes that a kinyan to accept a specific bet din is binding and does not run afoul the rule of kinyan devarim. He explains it in two ways. One is based on Nemukei Yosef that accepting a bet din isn't actually a kinyan devarim but rather only appears to be a kinyan devarim and making a kinyan to that effect is sufficient. Shach also cites Raavan who writes that this too would be a kinyan devarim unless a person clearly made a kinyan that he accepts the bet din and will do as they rule.
Even though this is accepted in Shulchan Aruch and Shach, this matter indeed seems to be a dispute among the rishonim and some hold that it is indeed a kinyan devarim.[3] On the other hand, there are rishonim who hold that certainly this isn't a kinyan devarim once the parties made a kinyan upon it.[4]
Support Obligation
Sources
- ↑ Bear Hagolah 203:6 quotes Maggid Mishna that this concept is accepted.
- ↑ Sanhedrin 1:680
- ↑ Rif (cited by Baal Hatrumot 2:1:4, cited by Bet Yosef C.M. 26:3) writes that if a person accepted upon himself with a kinyan to be judged by a non-Jewish court that deal isn't binding. He adds that this isn't unique to being judged in civil court, which is forbidden, but indeed the same applies to accepting upon oneself anything that's not obligatory. That being the case a kinyan to be adjudicated by a specific bet din does seem to be a kinyan devarim. However, it is interesting to note that Tur in quoting this Rif writes that a kinyan would be effective to be judged by civil law if he would gain a certain right there. Sma 26:10-11 agrees and proposes that this is unanimous. However, Bet Yosef in Bedek Habayit disagrees and holds that Rif would disagree with this application as well.
- ↑ Rashba 1:1142 (cited by Bet Yosef CM 195:20) writes that a kinyan that a person is going to give money at a later time isn't a kinyan devarim and is binding if a kinyan was made upon it. This is quoted as one opinion in Shulchan Aruch C.M. 245:2.
