Parashat Ki-Tetze 5770/ August 21, 2010
the weekly Torah reading by the faculty of
Controversy of the
Dr. Dov Levitan
Inter-Disciplinary Department of Social Sciences
Among the many issues dealt with in Parashat Ki-Tetze are marrying a woman taken captive in war (referred to in Jewish texts as “a beautiful woman”) and polygamy, which, while legal in Torah law, creates problems in the realm of inheritance. Further on the weekly reading mentions the issue of unsuccessful marriages and, in their wake, the way in which dissolution of marriage is to be accomplished. The Torah mentions the obligation placed on the man who wishes to divorce his wife to write her a “bill of divorcement,” and forbids him to remarry the woman he has divorced if in the interim she had married another man (Deut. 24:1-4). In the time of the Mishnah and Talmud it was possible to divorce a woman against her will, but following the Ban (herem) of Rabbenu Gershom,  enacted about a millenium ago, a woman could not be divorced against her will. But if a woman demands a divorce and her husband refuses, only a court can force him to divorce her,  as stated in the gemara, Tractate Yevamot (106b): “Pressure is put on him until he says he is willing [to divorce his wife].” All this is conditional on the man being sound of mind. 
What happens when there is a difference of opinion as to the sanity of the husband giving the divorce? What happens if during the period prior to the act of divorce he was considered insane?  The incident which we present below, known as the Cleves Get, deals with such a case, the main question being whether the husband was in possession of his faculties when he divorced his wife.
The case took place in
A week later, on Saturday night, after they had spent
several days in
Several weeks later it became known to the father of the
groom that his son had divorced his wife and left the country.
The father was incensed both because in his
opinion his son had been forced to give a bill of divorce despite his delicate
emotional state, and because the financial arrangements were to his
disadvantage. He turned to Rabbi Tevele
Hess, leader of the
The rabbis of
On the other side, the rabbis of Frankfurt collected testimony from Rabbi Simeon Copenhagen and members of the Bonn community, and on the basis of this testimony they determined that the husband had not been sound of mind when the get was drafted and delivered, and therefore the get was invalid. Accordingly, initially they ruled that the woman’s status was “possibly married,” and later they claimed that she was “certainly married.” The family of the divorcee/agunah/bride appealed to the great rabbis of the times to support the position taken by the Cleves Rabbi and determine that the get was valid.
At this point a vehement halakhic dispute of indescribable
magnitude broke out. The judges of the
rabbinical court of Frankfurt refused the request made by prominent rabbis from
various communities that they list in detail the reasons and halakhic
considerations on the basis of which they invalidated the get, nor were
they willing to publicize the court record or the evidence which they collected.
They simply announced that it was within
their jurisdiction as a rabbinical court to invalidate the get, and that
they did not have to give any justification for their decision.
The controversy grew more acrimonious and
came to involve many of the great rabbinical figures of the times, including
The halakhic implications of the Cleves Get
The main subject of discussion among the rabbis of the time was whether the husband had been sound of mind when the get was drafted and delivered. The issues concerned the halakhic definition of “not sound of mind” on the one hand, and the fear of leaving a young woman agunah, on the other. The one who drafted the bill of divorce and all those who were present when the divorce was effected testified that Isaac Neiburg had been sound of mind at the time, and this, in their eyes, was what determined the validity of the get, even if his behavior prior to then had been strange. In their opinion, he was responsible for his actions, his person and his property, even if he did have certain fears.
Opposing this position, the rabbis of Frankfurt argued that it was patently clear the young groom had gone crazy, and therefore it was inconceivable that at the time of delivery of the get, only nine days after he had left his home on the holy Sabbath, taking with him the money from his wife’s dowry, he could have recovered and become sound of mind. In their opinion, it sufficed for the husband to be suffering paranoia and wanting to leave the country immediately to indicate that even if his condition had improved, he had only partially recovered. 
The halakhic consequences of the case were that henceforth the rabbis became stricter in their approach to all that concerned marriage of people who might be suspected of mental illness, in order to prevent the eventuality of divorce cases which might revolve around the question of the husband’s sanity.
The rabbinical court in Frankfurt, which undoubtedly
enjoyed great prestige, brought its full weight to bear in order to impose its
position and invalidate the divorce, even though the event did not take place
within its area of jurisdiction and the
Historically the Cleves Get episode can be seen as expressing the momentous changes undergone by the Jews of Ashkenaz in general and Germany in particular since the mid-17th century. These events began with the controversy raised by Rabbi Jacob Emden, who accused Rabbi Yonatan Eybeschuetz of being a Sabbatean (1751),  continued with the Cleves Get affair (1776), with the subsequent rabbinic controversy which crossed borders and led to a decline in the prestige of the Frankfurt rabbinical court, and went as far as the Napoleonic Wars and the fall of the ghetto walls. These events hurt traditional Jewish communities and made it more difficult for them to cope with the Enlightenment, Emancipation, and rise of the Reform Movement.
Thus the Cleves Get episode rocked the Jewish and
rabbinic world of 18th-century
Gershom (960-1040), Ashkenazi Jewish leader, active mainly in
 Mishneh Torah, Nashim, ch. 23, Hilkhot Gerushin, 20. If a husband is forced to give a divorce against his will, then it is a “forced get” and is considered invalid.
 “If a person has an evil spirit disturbing his peace and says that the ailment already afflicts him, and he then writes his wife a bill of divorce, it is as if he had written nothing, for his mind is not clear and settled,” Mishneh Torah, loc. sit., 14. Also cf. Bava Batra 153b.
 For the symptoms of a person considered insane, see Hagigah 3b.
 Yet they did not comply with Rabbi Hess’ request that the divorce be proclaimed invalid at the fair held in the neighboring city.
 Shlomo Tal, loc. sit., p. 154.
 Rabbi Jacob Emden was an adversary of Rabbi Jonathan Eybeschuetz and accused him of being a Sabbatean.
 For some unknown reason, no opinion was voiced by the Vilna Gaon on this case.
 On the view that insanity or mental illness is not necessarily a constant condition and the meaning of partial recovery with regard to the Cleves get case, see the article of Rabbi M. Farbstein, Misphetei ha-Da`at, Hayyim Kahan Data Center on Medicine, Ethics and Halakhah, Summer 2009 (www.medethics.org.il/articles/MH/MH5.asp).
 Shlomo Tal, loc. sit., p. 222.
controversy aroused heated arguments between the rabbis of
 One should also note the works of Rabbi Aryeh Leib Ginzburg, author of Shaagat Aryeh, and Rabbi David Naphtali Hirsch Frankel, author of Korban ha-`Edah, as well as the books of Rabbi Isaac ha-Levi of Hamburg and Mahari Yaavetz.
Ezekiel Landau, author of Noda` bi-Yehudah, loudly protested the refusal
According to one account, some time later Isaac Neiburg returned from