Bargaining in the Shadow of Get Refusal: How Modern Contract Doctrines Can Alleviate This Problem

31 Pages Posted: 24 Nov 2020 Last revised: 6 Oct 2022

See all articles by Yehezkel Margalit

Yehezkel Margalit

Netanya Academic College; New York University School of Law

Date Written: October 6, 2020

Abstract

One of the most troubling issues in the Jewish family throughout
the generations has been the problem of the agunah (literally a "chained
woman"-one denied a divorce by her husband). In this paper my intent
is to explore how modern contract doctrines can mitigate this problem. In
my opinion, modern contract law supplies us with the necessary doctrines
and a framework for dealing appropriately with such an acute legal,
religious, and social problem. I will discuss several common and wellknown contractual doctrines. Inter alia, following the research in the field
of the relational theory of contract, I will investigate the feasibility and
efficacy of implementing this theory as a contractual tool to alleviate the
get refusal challenge. In addition, I will explore unconscionability, a
doctrine that is based on public values and standards of appropriate
behavior, as an additional contractual tool for claiming that the free will
and informed consent of the spouse bound to the "get settlement" was
compromised. Finally, I will elaborate on the theoretical usage of the
unique "religious duress" doctrine, which has been extensively discussed
so far mostly in the Christian context and examine its potential
implications in our Jewish scenario.

Keywords: family law, contract law, modern contract law, unconscionability, divorce bill, religious duress, duress, exploitation, public policy, relational contract, remedies, chained woman (agunah)

Suggested Citation

Margalit, Yehezkel, Bargaining in the Shadow of Get Refusal: How Modern Contract Doctrines Can Alleviate This Problem (October 6, 2020). 36 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 153 (2020), Available at SSRN: https://ssrn.com/abstract=3705971 or http://dx.doi.org/10.2139/ssrn.3705971

Yehezkel Margalit (Contact Author)

Netanya Academic College ( email )

Netanya

New York University School of Law ( email )

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