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Sefaria 23

On the assumption that we accept Rambam's position that we rule strictly on a doubt of biblical law by virtue of a rabbinic ruling, the double doubt is effective because the one doubt transforms the biblical prohibition to a rabbinical prohibition, and the second doubt is a rabbinic doubt and therefore entails leniency. 39 Pnei Yehoshua, Ketuvot 9a, sv. v e-omer Ri; Teshuvot Shem Aryeh, YD 2.

On the other hand, espousing the view that a biblical uncertainty ought to be resolved stringently on a biblical level, a double doubt is effective due to the rule of "following the majority." The existence of one doubt creates a situation of a 50/50 uncertainty while the second doubt then creates a majority which results in treating the matter leniently on a biblical level. 40 Rashba, Torat ha-Bayit , 4:1; Hiddushei ha-Rashba, Kiddushin 73a; Teshuvot ha-Rashba 1:401; Mishneh le-Melekh, MT Tumat Tzara'at 2:1; Taz, SA YD 110:15; Knesset ha-Gedolah EH 68, ha-Gahot Tur 23; Teshuvot Tumim Yesharim 149; Teshuvot Ranakh 27; Teshuvot Maharhash 30.

Moreover, we have relied on a string of later authorities (Aharonim ) in general, and Sages of Ashkenaz and Spain in particular, that a double doubt can be invoked in order to restore the woman to her original, presumed unmarried status. 41 Tosafot, Niddah 45a, s.v. hi ; Teshuvot ha-Mabit 1:49; Teshuvot Ra'anah 1:68; Teshuvot Maharit 1:138; Teshuvot Beit Yitzhak, EH 1:92, end; Teshuvot Ein Yitzhak, EH 1:35; 2:16 (3–4); Teshuvot Minhat Moshe, EH 11 ; Teshuvot Be'er Moshe, Kuntres Binyan Yerushalayim 18. For additional responsa, see supra chapter 2, n. 23.

In pursuance to the ruling of Rabbi Avraham Yudlovitz, 42 Teshuvot Beit Av 7, EH 25. Rabbi Ovadia Yosef formulates the double halakhic doubt as follows: 43 Teshuvot Yabia Omer 9, EH 36:10.

In the halakhah of apostate's bond (for yibum and halitzah – AYW) – we have a double doubt which has ramifications towards leniency. Possibly the Halakhah is like the Geonim who permit it, and if you argue that the halakhah is according to ones who prohibited, possibly it is only according to rabbinic law, in pursuance to the words of Mahari Mintz and Knesset Yehezkel and their followers. Consequently, a double doubt grounded in rabbinic law is resolved in pursuance to its lenient implications since it entails a double doubt on a Torah level and one doubt grounded in rabbinic law.

Since we are dealing with a rabbinic doubt, thus there was no rabbinic mandate in this situation of a bond to yibum and halitzah . 44 Teshuvot Beit Av 3, 106. For an identical conclusion, see Dibrot Eliyahu , supra n. 21.

5. Conclusion

Based upon the foregoing, there are three reasons which sanction the yevamah who befell an apostate yavam who converted after his brother's marriage to remarry without performing the halitzah . Firstly, the apostate yavam does not have a tie of yibum and halitzah ( zikkat yibum ). Secondly, we invoke the umdana that her understanding is that she would not have consented to marry her first husband had she known she would have to subsequently marry an apostate. Finally, there is double doubt which is to be resolved in accordance to its lenient implications when dealing with a yevamah who was befallen to an apostate yavam .

As such, the plaintiff is permitted to marry any Jewish man without the performance of halitzah .

J. The battered woman syndrome: Response to a Question

Question

Sarah approached us and asked us as qualified expositors of Halakhah ( mo'reih hora'ah rather than dayanim sitting in judgment) to void her kiddushin and to permit her to marry any other Jew without receiving a get from her husband. 1 In other words, this is a question of halakhic laws of prohibitions and permissibility ( dinei issur ve-heter ) whether a husband is obligated to give a get to his wife. It is a matter of dispute whether one requires a beit din of three, a single rabbi or an individual Jew to address matters of divorce such as get coercion, obligating a get and voiding a marriage. See Yam shel Shlomo, Bava Kama 3:9; Ketzot ha-Hoshen 3:1–2; Netivot ha-Mishpat , HM 3:1; Teshuvot Yehudah (Gordin), EH 51:2; Teshuvot Ma'aseh Hiyah 24; Teshuvot Hatam Sofer, EH 2:64–65, HM 177; Teshuvot Avnei Nezer EH 167:1 ; PDR 6:265, 269; File 957-61, Beit Din Yerushalayim for Monetary Matters and Yuhasin, vol. 7, 515; File no. 448866/3, Tel-Aviv-Yaffo Regional Beit Din, July 11, 2013; File no. 1086123/1, Be'er Sheva Regional Beit Din, December 20, 2018; Rabbi Z.N. Goldberg, Lev Mishpat 1, 149–150. Whether the individual Jew must be knowledgeable in Halakhah is subject to controversy. See Yam shel Shlomo , op. cit; Ma'aseh Hiyah , op. cit.; File no. 448866/3, op. cit. In the present matter, three rabbis convened to decide on a matter of ritual Halakhah . In the absence of a party attending a divorce proceeding regarding the matter of a get rather than a divorce-related monetary matter, the beit din or rabbinic authority(ies) may render a decision provided that the participating party is known to possess integrity and would not lie. See Knesset ha-Gedolah , Tur HM 17:19. See further, this writer's, Rabbinic Authority , vol. 4, 216, n. 2.

Answer

1. The facts

Sarah and Michael were married in January 2011. The marriage was the third marriage for Michael and the second one for Sarah. They sired two boys from this marriage.

In the wake of being physically abused during her pregnancy of their first child during May 2012, Sarah left the marital home and decided not to return to her home. A copy of a letter from her doctor who observed the wounds caused by her battery was submitted to us, stating that she was a victim of Michael's battery. Sarah remained with her mother for approximately a month, but subsequently she returned to Michael due to the acts of violence perpetrated by her mother, which were more severe than the acts of abuse that she had suffered from her mother's abuse during her childhood. Michael promised to register for a course in anger management and that he would collaborate with his rabbi in order to improve his conduct. In light of his acts of spousal assault during June 2013, Sarah separated from Michael for the second time and she went to live with her mother. After eight months she decided to leave her mother due to the latter's abuse.

In May 2015, Michael left her and filed for divorce in New Jersey. In July 2015, Sarah filed for divorce in Massachusetts. A civil divorce was executed in May 2017. Due to outstanding obligations for spousal and child support totaling $48,302.60, Michael fled the United States and presently lives in Moscow. Michael claims that he is prepared to give a get to Sarah on the condition that she waives her right to the aforesaid debts. However, in these types of cases, after the husband's demands are successfully met by the wife, there is a slim chance that he will comply with his promise to give the get .

Sarah claims that during the time that the couple was living together, Michael assaulted her ten times in a cruel fashion, three times breaking the doors of their home. In addition to the physical abuse, Sarah argues that Michael degraded her and verbally abused her, including cursing her. She complained to the police regarding his reckless behavior. Additionally, there were four of five times that Sarah wanted to contact the police but she restrained herself because she feared that the acts of violence would escalate. In fact, she hid a cell phone under her bed should she need to call the police in an emergency, or to enable her to contact others who could assist in her time of need.

Three or four months after her wedding, Sarah discovered amongst Michael's papers copies of a police report and restraining order dating back to his first marriage, as well as a letter authored by his first wife which provides a detailed report of the violence that he committed against her. Michael persuaded Sarah that everything written in his former's wife's letter was replete with lies. At the time, Sarah expressed confidence that Michael was telling the truth. Yet, a year and half later, after their marriage, a rabbi confided in her that Michael had battered his second wife.

As we noted earlier, in order to corroborate her claim that Michael engaged in domestic violence, she submitted a copy of the aforementioned doctor's note to us. Additionally, Sarah provided us with copies of two police reports dealing with incidents of intimate violence during her marriage, a copy of a New Jersey domestic violence civil complaint and temporary restraining order, as well as a copy of a police report of domestic violence committed by Michael vis-à-vis his first wife, along with a copy of the aforesaid letter written by his first wife.

As we noted, during May 2012, approximately a year and half after the wedding, Michael assaulted her while she was pregnant for the first time and it was only then that she realized that his first wife was writing the truth and she then regretted that she had married Michael. Despite the fact that a series of domestic violence incidents followed her first pregnancy, nevertheless, notwithstanding two periods of marital separation, Sarah remained with Michael until May 2015 when Michael left her and filed for divorce.

Given that the marriage was marked by both physical and emotional abuse, we asked Sarah why she remained in the marriage. Sarah explained that she remained in the marriage for various reasons. Firstly, she needed to have a place to live with her two children. Her parents were divorced and her mother abused her during her childhood and continued this behavior while she resided with her during the time she had separated from Michael. Moreover, even though she was prepared to divorce him after the first three months of the marriage due to Michael's intimate ties with his second wife after they were divorced, she remained with him because she desired to have children, to establish a family and didn't want to live alone and she thought that the situation would improve. Furthermore, given that this was her second marriage, she was embarrassed as to what the community would say if she got divorced again. Finally, should she divorce him, she was scared that he would kill her. And despite living in an abusive environment with the fear of death lest she leave him, Sarah continued to express her love for him (as well as her love for her abusive mother). In other words, Sarah had emotional ties to Michael even though he battered her. A clinical expert in social worker who serves as a therapist for Sarah communicated to us the same reasons that Sarah remained in the marriage.

Though the couple went to marriage counseling and Michael took courses to deal with spousal abuse, nothing helped and the abuse intensified over time.

Discussion

1. A cognitive and emotional understanding of intimate partner violence

We are dealing here with a violent man who utilizes physical and emotional violence in order to physically and emotionally cause pain to his spouse. As a result, his spouse becomes "the beaten one" and the man is labeled "a batterer."

Women who become victims of domestic violence are fearful that they do not have the capacity to deal with this violence. Emotionally, the beaten woman fears that she is responsible for the transpiring of the battery and therefore her self-confidence is undermined. The husband's actions, the violence, the breaking of objects and even the husband's facial expressions engender in the woman feelings of fear, the inability to confront the batterer, and the loss of hope. In the context of the domestic violence, the batterer has strategies such as attempts at loving contrition of his victim, abstention from clashes and surrendering to the batterer's desires. The victim's inability to confront the batterer explains her remaining in this environment of violence. Her inability to control her life transforms her into a being who lives in accordance with the directives of an external cause, namely the batterer. Nonetheless, the violence occurs intermittently. In other words, on one hand her share and responsibility in the initiating of the conflict via inappropriate conduct creates the provocation of the batterer to use physical and emotional violence. On the other hand, there are incidents of positive behavior from the batterer that are expressed as self-improvement, promises that he will refrain from touching her in the future, declarations of love, etc. 2 For professional literature which is descriptive of the battered woman's syndrome, see E. Pence and M. Paymar, Power and Control, Tactics of Men who Batter, Duluth, Mn., 1986; M.A. Dutton, Empowering and Healing the Battered Woman, N.Y.: Springer, 1992; M. Dutton, "Understanding Woman's Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome," 21 Hofstra Law Review 1190 (1993); L. Brash, "Wife Battery in the Eyes of the Beholders: A Functional Cognitive Perspective, (Hebrew)," Doctoral Thesis, Bar Ilan University, 2010; A. Michal, The Associations between Violent Characteristics, Sense of Control and Parenthood among Battered Women, (Hebrew)" Master's Thesis, Bar Ilan University, 2012.

The batterer attempts to be a lover, and in particular, expresses pain regarding his conduct. And these feelings are significant because of the fears that the victim may leave him and for the purpose of being able to be in control in the future. Love and appeasement are the trap and snare of the woman that in the final analysis turn her into a victim. The batterer's apology is a means to diminish the tensions and fights between the couple. The apology fulfills two purposes. Firstly, from the batterer's vantage point, the apology expresses his rehabilitation. Secondly, the apology stems from the batterer's feelings of guilt. To state it differently, the apology serves a significant and decisive factor that allows the batterer to remain with his spouse and thus allows him to continue to assault her!

The power of control leaves the woman bereft of the ability to confront the batterer and creates a relationship of traumatic bonding. As Dutton and Painter observe in their oft-cited essay: 3 D.G. Dutton & S. Painter, "Emotional Attachments in Abusive Relationships: A Test of Traumatic Bonding Theory," 8 Violence and Victims , 105, 109 (1993).

Dutton and Painter (1981) have elaborated a theory of "traumatic bonding," whereby powerful emotional attachments are seen to develop from two specific features of abusive relationships: power imbalances and intermittent good-bad treatment . . . The process of detaching from, or emotionally leaving, an abusive relationship should be more difficult, since traumatic bonding is theoretically increased by relationship dynamics. Hence, intermittent abuse develops an emotional bond which interferes with leaving and remaining out of an abusive relationship. Dutton and Painter (1981) liken this attachment process to an elastic band which stretches away from the abuser with time and subsequently "snaps" the woman back. As the immediate trauma subsides, the strength of the traumatically-formed bond reveals itself through an incremental focus on the desirous aspects of the relationship, and a subsequent sudden and dramatic shift in the woman's "belief gestalt" about the relationship. This shift in phenomenology alters her memory for past abuse, and her perceived likelihood of future abuse. The point of this original formulation by Dutton and Painter (1981) is that this belief shift is attachment-derived. That is, it follows from a shift from avoidance to return at an affective-attachment level.

In other words, traumatic bonding is established by power imbalance and intermittent abuse. 4 See also, J. A. Christman, "Expanding the Theory of Traumatic Bonding as it Relates to Forgiveness, Romantic Attachment and the Intention to Retain," Master's Thesis, University of Tennessee, 2009, 4–5.

Another type of traumatic bonding is called Stockholm syndrome. As one researcher observes: 5 V. George, "Traumatic Bonding and Intimate Partner Violence," Master's Thesis, Victoria University, 2015, 11–12. See further, D.L.R. Graham, et al, " A Scale for Identifying ‘Stockholm Syndrome' Reactions in Young Dating Women: Factor Structure, Reliability and Validity ," 10 Violence and Victims , 1995, 3–22.

The term Stockholm syndrome was coined in 1973 by Bejerot, who used the term to describe the enigmatic behavior of three women and one man who were held hostage for six days in the vault of the bank in Stockholm, Sweden (Bejerot, 1974). These hostages developed an emotional bond with their captor that was so strong that they threatened the officials who were trying to help them. The captives refused to leave the vault before the captors, fearful that the police would harm the captors. The bond (also known as capture, traumatic of terror bonding) continued long after the release of the hostages, including scenes of the captives kissing and hugging their captors once freed from the vault. Reports that two of the female hostages were romantically involved with two of the captors surfaced some months later (Graham, 1994). This seemingly paradoxical response has also been seen in other contexts and populations, specifically concentration camp prisoners, prisoners of war, civilians held in Chinese Communist prisons, cult members, abused children, incest victims . . . Graham (1995) developed the Stockholm syndrome theory, specifically linked to intimate partner violence, based on the psychology and behavior of these groups. She argued that four precursors were necessary for the development of Stockholm syndrome: perceived threat to survival, perceived kindness, isolation, and the perceived inability to escape.

In our case, Sarah told us that one of the reasons she did not leave Michael was due to feelings of love toward him. In light of what we have just explained, one can understand her feelings as reflecting her traumatic bonding rather than authentic love of a wife for her husband.

However, the emerging issue is how does one understand her claim that her feelings of love persisted for many years after their separation and the civil divorce? To understand the import of her claim, we sought out the advice of a practicing clinician in domestic violence with twenty years of experience, and this was her reply:

This is probably the most common question I'm asked in my work. It's an incredibly important question, but I believe the answer to be incredibly complex and again, completely individual, based on the person who's in the situation themselves. As you and I have conversed about, no abusive relationship I've ever worked with is completely bad. Not one. There are always elements of positive in some way. These things, combined with sharing a life together, are the building blocks of connection and love for any one of us. Someone could be horrifically hurt by someone in a host of ways, and human nature dictates that this abuse often doesn't erase the love and connection. So, what I have seen over and over again in my work – and is wholly supported by the literature – is that survivors love their abusive partners because it is a deeply normative human response to feel that way – and may well feel that love and connection in some form for the rest of their lives. Someone who shares a life together with their partner – even if so much of it was abusive – it does not necessarily erase the love that was built. The love likely takes many different evolving forms, but someone still stating they love their abusive ex-partner, in my view, is just being authentic. This emotion is both understandable and does not in any way contradict the abuse and pain that is also present in these relationships.

In other words, the authentic love that was developed prior to the acts of abuse continues to exist even after the divorce. 6 Alternatively, we are dealing with traumatic bonding rather than authentic love which serves as the reason that there exists emotional attachment even after the divorce. See supra text accompanying n. 5. These feelings do not in any fashion contradict the abuse perpetrated by a husband vis-à-vis his spouse. In short, in addition to traumatic bonding there is authentic love which continues to persist after the divorce. As such, victims of domestic violence continue to remain with their batterers in a coercive environment, akin to prisoners of war. 7 D. L. R. Graham, Loving to Survive: Sexual Terror, Men's Violence and Women's Lives , N.Y., NYU Press, 1994.

Clearly, the psychological realities of Sarah do not fit a singular profile. In fact her case, similar to other situations of battered women, vary considerably from each other. Yet, in pursuance to Sarah's arguments and submitted evidence, the presentations of her therapist who specializes in social work, the expert advisory opinion of a practicing clinician in domestic violence and our research of the professional literature, we arrived at the conclusion that the intimate partner violence between this couple reflects the phenomenon known as Stockholm syndrome.

2. Kiddushei Ta'ut due to Physical Abuse

Prior to implementing the mechanism known as kiddushei ta'ut (loosely translated as an erroneous marriage) in order to void the marriage and advance the argument that an error transpired in the creation of a particular marriage due to the fact that the prospective husband failed to disclose the defect to his prospective wife prior to the marriage, three preconditions must obtain.

1. The flaw must be severe (a mum gadol ) such as a husband's sexual impotence, mental dysfunction, homosexuality, or if a wife was exposed to a contagious and dangerous disease such as syphilis or A.I.D.S. All these examples are crystalized in the responsa as major defects.

One of the yardsticks to determine whether a particular behavior is an example of a major defect is by ascertaining whether the behavior such as physical abuse serves as a ground for divorce ( ilat gerushin ) that a beit din may coerce the husband to give a get to his wife.

Let's elucidate the various authorities who addressed the halakhah of a husband who is a batterer and discern whether there are grounds to coerce a get .

Ohr Zarua teaches us: 8 Ohr Zarua 2:161.

If he customarily assaulted and publicly shamed her, we coerce him to divorce her. Already there was an incident with one who frequently hit his wife, and Rabbeinu Simhah was asked, and he replied that we coerce him to divorce her . . . a person does not live with a snake in the same basket.

However, Rabbi Meir of Rothenberg argues: 9 Teshuvot Maharam of Rothenberg , Prague ed. 81.

Regarding a husband who assaults his wife, one must be more stringent than when dealing with somebody who hits his friend . . . And if she wants to leave him, he ought to divorce her and give her the ketubah (the value of ketubah – AYW).

Similarly, Ramban writes: 10 Teshuvot ha-Rashba ha-Meyuhasot le-Ramban 102.

A husband ought to refrain from hitting and torturing his wife . . . and we inform him that if he hits in violation of Halakhah , that he will be obligated to divorce her and give the ketubah .

In other words, in opposition to Rabbeinu Simhah and Ohr Zarua who obligate get coercion, Maharam and Ramban only obligate the giving of a get .

And Beit Yosef opines: 11 Tur EH 154, end.

It seems to me that one cannot rely upon the Sefer Agudah, Rabbeinu Simhah and Ohr Zarua to coerce since it is not found amongst the renowned authorities.

Yet, Rema in his Darkhei Moshe demurs: 12 Tur EH 154:17.

I don't see this matter accordingly, as we can rely upon Geonim. A fortiori , Ramban and Maharam agreed in their responsa in the matter of battering a wife and brought clear proofs to their words. And halakhic logic concurs with them . . . however not to coerce a get . . . rather to comply with what one is dutybound to do. In [Teshuvot] Binyamin Ze'ev (no. 68), he cites many responsa regarding this issue and concludes that if he is the cause, he is obligated to divorce her.

It seems from the language of Ramban and also from the language from Teshuvot Binyamin Ze'ev that one does not coerce, rather one is obligated to divorce, and the flow of the language from the passage of Darkhei Moshe seems to indicate the same conclusion. Similarly, other decisors align themselves with the position that get coercion is inappropriate. 13 Hut ha-Meshullash, Tur 3:35 in the name of Rosh, Rashba, Tur and Rivash; Teshuvot ha-Ridvaz 1:156, 4:157; Teshuvot Maharshakh 1:60; Teshuvot Perah Matteh Aharon 1:60; Teshuvot Rabbi Akiva Eiger 107.

Nonetheless, there are authorities who espouse get coercion even if the assaults are infrequent and do not endanger the wife's life. 14 Teshuvot Tashbetz 2:8; Rema SA EH 154:2 in the name of "some say"; Hut ha-Meshullash, supra n. 13. Teshuvot Ma'sat Moshe 1, EH 17; Teshuvot Maharit 1:113; Teshuvot Hatam Sofer EH 2:60; Arukh ha-Shulhan EH 154:15.

Based upon the foregoing and the circumstances of the abuse in our case, according to this latter position there is a basis to coerce a husband to give a get to his wife.

Given that in the Diaspora, generally speaking countries do not enforce a rabbinical court decision to coerce a get , Rabbis Spektor, Feinstein, Frank, O. Yosef and others argue that, under certain conditions, one can invoke the mechanism of kiddushei ta'ut in order to void the marriage. 15 Teshuvot Ein Yitzhak 1, EH 24 (38); Teshuvot Imrei Yosher 2:159; Piskei Halakhot , Ishut 1, Yad David 372 (in theory not in practice); Teshuvot Dvar Eliyahu 48; Teshuvot Iggerot Moshe EH 1:79; Teshuvot Har Tzvi EH 2:81; Teshuvot Yabia Omer 9, EH 38; Teshuvot Minhat Avraham 2:10.

In light of the fact that one cannot legally (and therefore halakhically ) coerce a get in the United States, under certain conditions there are grounds to void this marriage.

Alternatively, even if we would have subscribed to the view that there is no basis of get coercion in the case of spousal physical abuse, there exists another approach that arrives at the conclusion that we are dealing with a major defect and consequently we can void the marriage.

In a judgment of Rabbi Shlomo Daichovsky, a former presiding Dayan of the Beit Din ha-Rabbani ha-Gadol, the highest rabbinical court under Israel's Chief Rabbinate, he states as follows regarding the definition of defects on the part of the husband: 16 File no 1-22-1510, Beit Din ha-Rabbani ha-Gadol, September 7, 2004.

The matter of defects for which a woman may sue for her get is not Torah-ordained law, but reason and logic, as Rambam writes (Hil. Ishut 25:2): "These matters are concepts that reason dictates; they are not decrees of the Torah." The whole subject of defects is a matter of human reason, and the emotional unwillingness of one spouse to endure an intolerable situation on the part of the other spouse. For this reason, we have the halakhah of "he assessed and accepted" or "she assessed and accepted." It is possible to say that if the general opinion concerning a particular defect changes, then it may not be said that "she assessed and accepted" on the basis of her past acquiescence. A defect may not necessarily be a physical one: defective behavior, such as consorting with prostitutes, may entail an order to give a get . Indeed, this halakhah concerning consorting with prostitutes appears in Shulhan Arukh 154, which is the section dealing with defects. In all civilized countries, it is very humiliating for a woman to share her bed with another woman, and a husband who takes another wife will be ordered to give a get , not only due to the ban of Rabbenu Gershom, but also due to the humiliation and the flaw in this. The parties came from Yemen, where it was acceptable to marry two wives. Here, this is considered a great disgrace, and must be regarded as a major defect. The wife's past acquiescence does not obligate her at present, and therefore this is not only a matter of "he is repulsive to me," but also a matter of a defect in the husband, due to which the wife cannot live with him. In the case of divorce due to a defect, the wife does not lose her ketubah . It is plausible to say that even if the wife married a philandering husband, and later repented of her decision and can no longer tolerate this situation, the husband will be ordered to give her a get , and will not be able to claim that she "assessed and accepted." Equally, in my opinion, the claim "She assessed and accepted" cannot be made in a situation in which a woman married a man who was an avowed homosexual, even though she was perfectly aware of his proclivity, and later learnt about the severity of the prohibition, and wishes to divorce him due to the husband being repulsive to her. Here, too, there is no room to argue that "She assessed and accepted."

Implicit in Rabbi Daichovsky's understanding of the definition of what constitutes a major defect is that a husband's defects (as well as a wife's defects) are grounded under certain conditions upon defects found in real estate or personal property (see further in our decision), namely the universe of halakhic civil law (Hoshen Mishpat). In short, under certain conditions the buyer is entitled to void the sale if the community considers it a defect in the item. However, if the community does not deem a particular flaw to be a defect in the item, then the buyer cannot rescind the sale. 17 Teshuvot ha-Rif 153; Hiddushei ha-Rashba, Ketuvot 72b; MT, Mekhirah 15:5; Semag , Negative Commandments 170; SA HM 232:6; Teshuvot Divrei Ribot 300; Teshuvot Maharshakh 1:19; Teshuvot Tzedakah u-Mishpat HM 36; Malbushei Yom Tov 4.

Following in the footsteps of Rabbi Daichovsky who argues that a major defect is defined by communal standards, Rabbi Shlomo Amar teaches: 18 Teshuvot Shema Shlomo 1:15.

In contemporary times, we must act stringently in regard to battered wives, since every man who is respectable and intelligent is embarrassed by this behavior, a woman cannot tolerate this at all and it is a major shame today in comparison to earlier times . . . battery of a wife is repulsive and disgusting in the eyes of a woman . . . that she can no longer live with him.

In accordance with Rabbis Daichovsky and Amar, a woman undoubtedly has a valid claim that her husband's conduct is disgusting. As such, it is unsurprising that numerous contemporary Israeli rabbinical courts construe such behavior as an example of a woman who is pleading "he is repulsive to me - ma'is alai." 19 Piskei Din Rabbanayim (hereinafter: PDR ) 7:201; 12:3, 84, 324, 16:145; File no. 284462/9, Netanya Regional Beit Din, April 9, 2014; File no. 980712/1, Haifa Regional Beit Din, October 27, 2014; File no. 269629/9, Netanya Regional Beit Din, June 19, 2016; File no. 1078402/6, Haifa Regional Beit Din, June 5, 2017.

Consequently, it is unsurprising that some legists argue that the Talmudic presumption "it is better to live as two than to remain in widowhood" ( tav le-meitav tan do mi-le-meitav armalu ) has been understood as inapplicable to a husband who engages in domestic violence. 20 Teshuvot Hatam Sofer 4, EH 2:60; Teshuvot Heikhal Yitzhak EH 1:43.

Moreover, Michael's behavior is not only "repulsive and disgusting" but is an outward expression of a psychological flaw in his persona.

In the absence of a psychological diagnosis of Michael, scholars have noted the following: 21 P.A. Ali and P.B. Taylor, "Intimate Partner Violence: A Narrative Review of the Biological and Psychological Explanations for its Causation," 10 Aggression & Violent Behavior , (2013), 373–382. For the cited professional literature, see Ali & Naylor, ibid. 379–382. See also, D. George et al., A Model Linking Biology, Behavior, and Psychiatric Diagnoses in Perpetrators of Domestic Violence ," 67 Medical Hypotheses (2006), 345.

The initial theories related to IPV (intimate partner violence – Flynn) were based on the psychopathological orientation of violence. Based on studies conducted on known violent men in prisons, community based settings or victim women in shelters, some theorists believed that men who perpetuate violence and women who experience violence suffer from mental health problems such as depression (Hastings & Hamberger, 1994; Julian & McKenry, 1993; Murphy, Meyer & O'Leary, 1993; Pan, Neldig & O'Leary, 1994), personality disorders including antisocial personality, borderline personality disorder. . . . (Edwards, Scott, Yarvis, Paizis & Panizzon, 2003; Ehrensaf, Cohen & Johnson, 2006; Holtzworth-Munroe et al., 1997; Levy, Meehan Weber, Reynoso & Clarkin, 2005; Mauricio, Tein & Lopez, 2007; Porcerelli, Cogan & Hibbard, 2004)

During our hearing with Sarah, she submitted to us pictures of drugs with a conventional prescription on each bottle which states the name of Michael, the name of the medicine, the prescribed dosage and the date of the purchase of the medicine. In January 2014, he took venlafaxine for depression and in May 2014, he took divalproex for a bi-polar disorder. Michael admitted to Sarah that he suffered from depression and Michael's second wife thought he had a bi-polar disorder. 22 Additionally, he took gabapentin, lamotrigine and lorazepam to deal with other psychological disorders. All the taking of medications did not assist Michael in addressing his problems. Since Michael never received a professional diagnosis, it is unsurprising that the various drugs did not help him. In the couple's estimation, Michael was suffering from a borderline personality disorder. As noted above, studies show that a person suffering from this illness may become physically abusive.

In accordance with the above-cited studies, it stands to reason that Michael's violent behavior was a by-product of his psychological dis­order.

Dealing with an epileptic husband, contends Rabbi Yosef ben Moshe Trani of seventeenth-century Constantinople who writes: 23 Teshuvot Maharit 1:113.

Reuven married a woman and after the marriage she became aware that he had epilepsy . . . subsequently the illness became severe until he lost his mind and then Reuven, with his mental dysfunction ( shetut ), wanted to choke his wife in the presence of two witnesses. . . .

Similarly, centuries later, addressing a case of a man who assaulted people by throwing stones at them and hitting his wife, Rabbi Moshe Feinstein states: 24 Iggerot Moshe EH 3:46.

From his conduct it is clear that he is mentally dysfunctional (" shoteh ") since in regard to his interpersonal relations he immediately (after the marriage ceremony - AYW) hit her as he does with other people, and from this we may conclude that he does not comprehend what it means to have a wife.

In the absence of a professional psychological diagnosis, Rabbis Trani and Feinstein argue that engaging in domestic violence ipso facto identifies a husband as mentally dysfunctional (a shoteh ). In other words, his improper conduct is a by-product of the psychological flaws in his persona.

Consequently, in accordance with the views of Rabbis Trani, Daichovsky, Amar, and Feinstein, spousal battery is a major defect.

2. In order to void the marriage, it must be clear that the major defect existed prior to the marriage and the prospective wife was unaware of the flaw prior to their marriage.

Pursuant to one witness's testimony, prior to the marriage he informed Sarah that Michael was suffering from depression and abused his second wife. Sarah admitted that she was told about his psychological condition prior to her marriage. However, concerning his past conduct of spousal abuse, Sarah claims that she was told about his behavior a few months after the onset of the marriage.

Firstly, when the witness submitted testimony in the presence of the rabbis, he testified with certainty that he disclosed to Sarah prior to the marriage her prospective husband's psychological condition. On the other hand, when he testified regarding his past spousal abuse, he formulated his words utilizing the language – "I believe".

We are of the opinion that it is illogical to assume that the witness told Sarah about Michael's inappropriate behavior prior to the wedding. A woman is not prepared to marry a man who is known to have been violent to a previous wife. Should she have been aware of his conduct, she would have refused to marry him. Moreover, since she suffered many years living with her abusive mother, she would not have been ready to marry a man who exhibited violent behavior towards his previous wife.

A. The credibility of a wife to claim that that her marriage was "a marriage in error" ( kiddushei ta'ut ).

Rabbi Osher Weiss rules as follows: 25 Teshuvot Minhat Osher 1:73(3). Given that Rabbi Weiss's ruling is contingent upon dealing with "an hour of emergency", we are able to apply it to our situation of get recalcitrance which is viewed halakhically as an hour of emergency. See Teshuvot Shevut Ya'akov EH 110; Teshuvot Agudat Ezori Midbari EH 9:2; Teshuvot Sha'arei Tzion 3, EH 14 (21–22). Though the cited responsa address the case of the classic agunah when the whereabouts of the husband are unknown, nonetheless, arbiters employ identical terms such as "an hour of emergency" regarding the modern day agunah . See Teshuvot Maharsham 1:14; Teshuvot Yabia Omer 6, EH 6(end).

Since there is a doubt concerning the essence of the kiddushin, it is to be construed as if she isn't a married woman and therefore "one witness is trustworthy regarding prohibitions" in "a matter of nakedness" ( davar she'bervah ), when it is bereft of the status of being prohibited, in accordance to the view of Maharik, shoresh 72. Similarly, such as the opinion of Tosafot, Gittin 2b . . . as it is written in Teshuvot Rabbi Akiva Eiger, section 107. . . . Though seemingly the majority of authorities disagree with this position, and in accordance with their opinion a single witness cannot be trusted in a matter of nakedness even if it is devoid of the status of being prohibited, as it is explained in the words of Ramban. . . . in the words of Rashi . . . and as in Rashba . . . Seemingly, one must stringent in this matter. However, renowned later legists tended to be lenient, and that is what was written in the Teshuvot Noda be-Yehudah in numerous places. See Mahadura Kama, 54 . . . 59 . . . 38 and that is what he wrote in 43 . . . 61 . . . and 85. . . . And study also Teshuvot Rabbi Akiva Eiger . . . 93 who cited the words of Noda be-Yehudah, who took a lenient stand, even though he had doubts due to the opinions of the early decisors. Nevertheless, he attached his position as an appendage ( senif ) to being permissive. And they are worthy these pillars of the world, Noda be-Yehudah, Hayyei Adam and the Gaon Rabbi Akiva Eiger to rely upon them in an hour of emergency.

In other words, relying upon respected authorities, argues Rabbi Weiss that one can trust her as one witness in "a matter of nakedness". 26 The identification of "a matter of nakedness" in our case is due to the fact that we are dealing with voiding a marriage. See Iggerot Moshe YD 227:5. For other definitions of "a matter of nakedness" such as testimony regarding the halakhot of prohibited sexual relations ( arayot ), testimony which is linked to an act of illicit intercourse ( bi'at zenut), testimony if the kiddushin is valid, testimony which changes the status of a man due to ritual Halakhah or any testimony regarding a person, see Tosafot Gittin 2b, s.v. eid ehad ne'eman be'issurim; Mordekhai, Yevamot 12:58; Teshuvot Rabbi Akiva Eiger 125 in the name of Netivot; Teshuvot Rabbi Akiva Eiger 124–125; Sha'arei Yosher , Sha'ar 6, Perek 10; Teshuvot Avnei Nezer HM 20. Consequently, in our case we may impart credibility to Sarah's representation that at the time of their marriage that she was unaware that Michael had been physically abusive to both his previous wives.

3. The halakhic propriety of a battered wife staying with the marriage after the realization that the marriage was "in error"

The emerging question is whether Sarah was obligated to leave the marriage immediately upon becoming aware that he was a batterer or not is a dispute amongst rabbinic authorities. Although among many of the scholars she was obligated to bolt the marriage immediately after discovery of this major defect, 27 Tur & Beit Yosef EH 154; Helkat Mehokeik, SA EH 39:9; Beit Shmuel , ad. loc. 16; Teshuvot Maharik, shoresh 24; Teshuvot Rabbi Akiva Eiger , Mahadura Tinyana 57. Rabbi Moshe Feinstein and Dayanim Goldschmidt and Bavliki contend that she may continue to remain in the marriage on the condition that there were reasonable explanations for this decision. 28 Iggerot Moshe EH 3:45, 48, 4:113; PDR 1:5, 11–12. However, if in the final analysis, the problem(s) could not be resolved, such as if the husband was mentally impaired and psychological counseling and/or medication did not improve the situation, then the wife must leave the marriage.

In order to analyze this matter, we must study the halakhot of a mistaken transaction ( mekah ta'ut ). 29 Seemingly, one can quantify the model of mistaken transaction, whereas when dealing with a marital life we are dealing with marital relations. Despite the differences between these two topics, Torah scholars utilized principles of a mistaken transaction in order to solve problems dealing with marital matters. See Mishnah Ketuvot 1:6, 7:8; Tosefta Ketuvot 7:10; Sefer ha-Yashar of Rabbeinu Tam , Nidah 18. The emerging question is whether an erroneous marriage may serve as a model in order to establish the principles of a mistaken transaction of Jewish civil law or the opposite.

Notwithstanding Ramah's position, 30 Nimukei Yosef, Bava Metzia 49b, Rif pagination. in pursuance to some decisors, under certain circumstances, the halakhot of an erroneous transaction are equivalent to a wife who discovers a husband's defects after the onset of her marriage. 31 Hiddushei ha-Rashba, Ketuvot 72b; Teshuvot ha-Ri Megash 129; Teshuvot ha-Rosh 33:1; Teshuvot Maharam of Rothenberg , Teshuvot Ketzarot 77; Magid Mishneh, MT , Mekhirah 15:3; Bi'ur ha-Gra SA HM 232:9.

In opposition to the above, in pursuance to Magid Mishneh, 32 Magid Mishneh , supra n. 31. the halakhah of waiving a defect when he used the item is derived from the halakhot of Jewish family law. 33 In pursuance to Magid Mishneh , ibid., Beit Shmuel SA EH 117:9 and Bi'ur ha-Gra SA HM 232:11 this halakhah is learnt from Ketuvot 75a-b.

On the other hand, numerous legists derive many halakhot of dealing with an erroneous marriage from the halakhot concerning the discovery of a defect in a sales transaction. 34 Teshuvot Ein Yitzhak EH 24:7; Hazon Yehezkel, Zevahim EH 8; Z.N. Goldberg, "An exemption from support due to a psychological disorder," (Hebrew), 4 Shurat ha-Din 54 (5758); Teshuvot Bikkurei Osher 1:21; Teshuvot Mishpetei Shmuel 12; File no. 141993/1, Beit Din ha-Rabbani ha-Gadol, March 5, 2003; File no. 1129170/1, Beit Din ha-Rabbani ha-Gadol, March 18, 2018.

Adopting this latter approach, let us shed light upon the principles of an erroneous transaction in order to apply them to the situation of a marriage in error.

Relying upon Rambam's ruling, Shulhan Arukh states: 35 SA HM 232:3.

If one sells to his friend land, . . . or other moveable property, and a defect (appears), which the buyer was unaware of, the buyer may return it (to the seller and receive his money back) even if a number of years have lapsed (since the sale), given that the sale was based upon a basic error, provided that the buyer did not continue to use the object after he became aware of the defect, However, if the buyer continued to use the object after he saw (or became aware of) the defect, he has waived his right to rescission and cannot return (the defective object to the seller and receive his money back).

One may derive the above principle of an erroneous sales transaction from the halakhot dealing with price fraud ( ona'ah ). As we know, if the discrepancy in price exceeds one-sixth of the market price, the sale is voidable. 36 SA HM 227:2. However, if the buyer used the item after discovering the price fraud and he failed to protest the discrepancy in price, he waived his right to void the transaction. 37 Pithei Hoshen, Ona'ah 11:19 in the name of later decisors ( Aharonim ).

In the event that the buyer informed the seller concerning the price discrepancy, even if he used the item after his notification, use of the item does not constitute a waiver of the discrepancy in price. As Ritva writes: 38 Hiddushei ha-Ritva Bava Metzia 50b, s.v. ye'tar al she'tut.

If the use was prior to becoming aware of the price discrepancy, he returns it "as is" . . . and if he used it after realizing the price discrepancy, he waived the discrepancy . . . if he became aware of the price discrepancy and he informed him and subsequently used it, he did not waive the price discrepancy. However, he is obligated to pay the seller for the use of the item or what he lost by using the item.

Notwithstanding some decisors, 39 MT Mekhirah 15:3, Piskei ha-Rosh Bava Metzia 4:15; Teshuvot Galyah Massekhet 10; Netivot ha-Mishpat 232:1. other authorities argue that we may equate the halakhot of erroneous sales with the halakhot of price fraud. 40 Teshuvot Rabbi Akiva Eiger 3:38; Pithei Teshuvah SA HM 232:1 in the name of Rabbeinu Ephraim. In other words, just as in a situation of price discrepancy the buyer may use the item after notifying the seller and we do not say he waived his right of restitution, analogously we do not say he waived his right to voiding the sale marked by a defect and may use the item. 41 Mishpat Shalom 232:3; Divrei Mishpat 232:3; Mahaneh Ephraim, Ona'ah 5; Knesset ha-Gedolah, HM 232, ha-Gahat Beit Yosef 37.

Based upon the foregoing, in accordance with halakhot of price fraud and a mistaken transaction, there is a duty to inform the seller that the sale is voidable due to the awareness of a defect. Similarly, in the context of "a marriage in error" ( kiddushei ta'ut ), there is a duty that the wife notifies her husband regarding his failure to disclose his major defect prior to the marriage. Yet, in our case, Sarah failed to inform Michael that she was divorcing him due to his failure to disclose prior to the marriage that he was abusive to his wives during his earlier marriages.