Expert: Rabbi Barry Dov Lerner - 1/5/2007

Question
Dear Rabbi:

I'm truly humbled.  Therefore, I ask my question in a different way:

Please, can you tell me, in a fairly abbreviated form (quick-and-dirty, if you will), how Conservative and Orthodox Judaism view insanity, both in general (biblically, culturally, etc.), AND as a legal defense? Unfortunately, I have no time to do extensive library esearch. One juicy paragraph or two might well suffice (with a few ONLINE sources to provide some meat on the bones?). I would be most grateful.

Marvin
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The text above is a follow-up to ...

-----Question-----
Can you tell me how Conservative and Orthodox Judaism views insanity, both in general (biblically, culturally, etc.), AND as a legal defense?

Thanks a million.


-----Answer-----
Dear Marvin,

Thanks for writing. However, when you ask "for as much detail as possible" you indicate already that it is a very large and complicated subject, with many opinions.

The best resources I can recommend to you are in good libraries:


Jewish Law : History, Sources, Principles (4 volume set) by Menachem Elon (Hardcover - Jan 1994)

Disability in Jewish Law (Jewish Law in Content)  by Tzvi C. Marx (Hardcover - Jan 24, 2002)

Some libraries will also send courtesy loans by mail for a limited amount of time.

Check www.jewishencyclopedia.com and a library edition of Encyclopedia Judaica for a more complete summary - not as detailed as you might wish - for insanity and the insanity defense.

Insanity today, and I can only respond as a Conservative Rabbi and not speak for Orthodoxy, would be most likely deferred to a medical expert - psychologist or psychiatrist. Thereafter a legal defense in our courts would be subject to the laws of this country, not Jewish law, as we accept the concept of "the law of the land is the law."

Wishing you well

Rabbi Dov

Answer
Dear Marvin,

Sorry but a "juicy summary" shouldn't suffice for anything, even a review question for a class.

From the www.jewishencyclopedia.com  as I suggested:

A voluntary yielding of the will, judgment, or inclination to what is proposed or desired by another. A rational and voluntary concurrence of the parties is necessary in all cases involving a legal act or contract. This principle gives rise to several distinctions in civil law. If a man has been forced to make a gift to another, his act is considered invalid, even though he made no formal protest (B. B. 40b; Ḥoshen Mishpaṭ, 242, 1). If he has been compelled, however, to sell either personal or real estate, the contract is valid, for it is presumed that, unless he had previously made a formal protest ("moda'a") before two witnesses, he was reconciled on the receipt of the money (B. B. ib.; Maimonides, "Yad," Mekirah, x. 1, 6; Ḥoshen Mishpaṭ, 205, 1).

In Business Transactions.

Minors above six years of age, who show intelligence and an understanding of business, are presumed to be capable of consenting to the purchase, sale, or gift of personal property, but not of real estate (Giṭ. 59a; Mekirah, xxix. 1; Ḥoshen Mishpaṭ, 235, 1). If a guardian ("apiṭropos") is appointed for them, they can negotiate no business without his consent (ib. 235, 2; see "Pitḥe Teshubah," quoting the opinion that even then his gifts should be valid).

The deaf-mute can enter by signs into contracts concerning personal estate. He must, however, be examined to see that he understands what he is doing (Giṭ. l.c.; Mekirah, xxix. 2; ḥoshen Mishpaṭ, 235, 17). The mute can sell and buy and give away either personal property or real estate (ib. 235, 18). The idiot can make no contract, and the court appoints a guardian for him as for a minor (Ket. 48a; Mekirah, xxix. 4, 20; Ḥoshen Mishpaṭ, 235, 20).

In Marriage Contracts.

The consent need not always be expressed. Silence is regarded as voluntary consent (Yeb. 87b; B. M. 37b). Therefore, in marriage contracts, if a man gave a coin to a woman and pronounced the prescribed formula in the presence of two witnesses, and she did not protest immediately, the marriage is valid (Eben ha-'Ezer, 42, 1; see Isserles' gloss). By "immediately" a space of time is meant which would be sufficient for a disciple to greet his master thus: "Peace be with thee, my master and teacher" (B. Ḳ. 73b). If, however, she was under duress, the marriage is invalid (Yeb. 19b; see Rashi's commentary, where the principle of consent on the part of the woman is derived from Deut. xxiv. 2: "She may go and be another man's wife"; Ḳid. 2b; Eben ha-'Ezer, l.c.). Authorities differ, however, regarding cases in which the man is under duress in contracting a marriage; some are of opinion that inasmuch as he can divorce her at will afterward, the marriage should be valid (Eben ha-'Ezer, l.c.). Since, however, compulsory divorce is now impossible, according to the decree of R. Gershom, the man would be in the same position as the woman, and a forced marriage, whether the man or the woman be the party under duress, would be considered invalid (Mielziner, "Jewish Law of Marriage and Divorce," § 29).

Insanity and Idiocy Barred.

Consent being necessary, insane persons or idiots were considered incapable of entering into a marriage contract (Eben ha-'Ezer, 42, 2). If a person who is only weak-minded or temporarily insane has contracted a marriage, it is doubtful whether such a contract could be declared invalid, so that the woman may be allowed to marry again (ib. Isserles' gloss). A marriage contracted by an intoxicated person is valid, unless he was at the time of his marriage entirely unconscious, "as the intoxication of Lot" (ib. 42, 3). Deaf and dumb persons, being looked upon as idiots, could not contract a marriage according to Biblical law, but the Rabbis sanctioned such a marriage when performed by signs. This being merely a rabbinical institution, it is not as valid as other marriages, and a very serious question would arise were another man to contract a marriage with the woman after she had been married to the deaf-mute (Yeb. 112b; "Yad," Ishut, iv. 9; Eben ha-'Ezer, 44, 1; see Mielziner, l.c. §§ 33, 34). Minors are usually classed with deaf-mutes and idiots by the Talmudists, and their marriage is also considered invalid by lack of consent (Eben ha-'Ezer, 43, 1).

Best wishes and good luck

Rabbi Dov