סמכות רבנית כרך ד, פתח דברRabbinic Authority IV, Preface
א׳
1The present volume is the fourth in a series of volumes intended as an introduction to a subject perhaps unfamiliar to many – rabbinic authority in our halakhic sources. The subtitle, “The Vision and the Reality,” points to the themes being addressed in this work.
ב׳
2In addressing the “halakhic vision” of rabbinic authority,1As we know, Halakhah distinguishes between the theoretical law, which emerges from an abstract study of the sources of Halakhah, and the law that is applied in a particular factual context, i.e. Halakhah lema’aseh. See Bava Batra 130b and Talmud Yerushalmi Beitzah 2:1 (R. Yohanan’s statements).
However, whereas “the vision” portion of the presentation deals with the decisions of Halakhic authorities as memorialized in sifrei pesak (restatements of Halakhah) and sifrei teshuvot (responsa), “the reality” portion of our presentation focuses upon the halakhic-judicial rulings of a beit din. we will offer a systematic inquiry of Ein Tenai be-Nissu’in which was published in Vilna in 1930. This work is a compilation of letters composed by rabbinical figures who opposed the introduction of kiddushin al tenai (loosely translated as conditional marriage) for a prospective Jewish couple who were embarking upon marriage which was suggested as a solution to deal with freeing wives who subsequently were unable to receive a get from their husbands. Our inquiry will address the halakhic and meta-halakhic factors involved in rejecting the proposed formula for a conditional marriage authored by French rabbis in the late nineteenth century. Furthermore, based upon our review, we will understand the significance of the title of this work and the line of argumentation found in these letters which subsequently propelled a rabbinic rejection of twentieth century solutions proffering other types of kiddushin al tenai which were proposed to deal with the agunah problem.
However, whereas “the vision” portion of the presentation deals with the decisions of Halakhic authorities as memorialized in sifrei pesak (restatements of Halakhah) and sifrei teshuvot (responsa), “the reality” portion of our presentation focuses upon the halakhic-judicial rulings of a beit din. we will offer a systematic inquiry of Ein Tenai be-Nissu’in which was published in Vilna in 1930. This work is a compilation of letters composed by rabbinical figures who opposed the introduction of kiddushin al tenai (loosely translated as conditional marriage) for a prospective Jewish couple who were embarking upon marriage which was suggested as a solution to deal with freeing wives who subsequently were unable to receive a get from their husbands. Our inquiry will address the halakhic and meta-halakhic factors involved in rejecting the proposed formula for a conditional marriage authored by French rabbis in the late nineteenth century. Furthermore, based upon our review, we will understand the significance of the title of this work and the line of argumentation found in these letters which subsequently propelled a rabbinic rejection of twentieth century solutions proffering other types of kiddushin al tenai which were proposed to deal with the agunah problem.
ג׳
3Since we are dealing with “the world of issurim (prohibitions)” due to the halakhic concern of hezkat eishet ish (the status of a married woman) as well as other factors, authorities were unwilling to release a wife without her receiving a get from her husband and therefore rejected these proposals for implementing conditional marriages. Nevertheless, when dealing with monetary matters, generally speaking, Halakhah allows individuals including prospective spouses to determine their own monetary relationships, provided that the arrangement complies with a proper form, i.e., kinyan, and is not violative of any prohibitions such as theft or the interdict against taking ribbit (halakhic interest).2Kiddushin 19b; SA, EH 38:5; SA, HM 291:17; Beit Yosef, Tur HM 305:4; SA, HM 305:4; Rema, SA HM 344:1. Consequently, it is unsurprising that there is much discussion how to draft a proper prenuptial matrimonial property agreement. As such we focus our attention upon the proper formula to be employed when executing such an agreement and whether it can be executed prior to the engagement or prior to the marriage.
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4The ability of prospective spouses to contract is not limited to the drafting of a prenuptial marital property agreement. Should a prospective spouse renege on “a promise to marry,” will he/she be able to sue in a beit din for reimbursement of wedding-related expenses due to a breach of an engagement? Are gifts that were given in the anticipation of the marriage recoverable? These questions are discussed in chapter three of our monograph.
ה׳
5The marital relationship itself may be said to be a contract, albeit a very special contract which establishes “a personal status” based upon the willing consent of the parties. Should a Jewish man and woman marry, Halakhah attaches certain consequences to that status. Among the monetary consequences to being married is a husband’s obligation to provide support for his wife as well as his children. On one hand, spousal support and child support is examined in the Talmud. On the other hand, there is no Talmudic discussion whether a father is dutybound to pay for the medical expenses of his child. Despite the fact that this issue is only briefly analyzed among post-Talmudic decisors, in chapter four we were able to distill three different halakhic models for establishing a father’s duty to provide for reimbursement of his child’s expenses for medical assistance.
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6In chapters five and six, we deal respectively with how American law and Halakhah address the matter of meting out corporal punishment of children and the dynamics of the child custody decision making process as reflected in the decisions handed down by the Israeli rabbinical courts.
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7In chapter seven, in the wake of get recalcitrant husbands receiving a halakhically improper heter nissuin, permission to remarry without giving a get to their first wife, we present the underpinnings of the ruling of the late Rabbi Yosef Elyashiv z”l who permits the execution of a get zikui in the case of a husband who remarries another woman (without a proper heter nissuin – halakhic permission to remarry) without giving a get to his first wife.
ח׳
8The “reality” of rabbinic authority presented in this volume deals with one type of authority – the Jewish court, the beit din. The cases chosen for this volume entail excursions into the universe of “bittul kiddushin,” voiding a marriage which results in the wife being able to remarry without a get. According to Halakhah, dissolution of the matrimonial bond requires the voluntary agreement of both spouses and failure of one party to assent to to the divorce action precludes execution of the divorce. Under certain conditions should a husband be threatened to give a get and subsequently he consents to give it, according to most Poskim the resultant get is viewed as a get me’useh (a coerced get) and it is null and void and should she remarry any children sired from this relationship will be considered mamzerim (halakhic bastards).3However, according to the minority view of Rambam, the resulting get would be pasul, rabbinically invalid. As such, should she remarry under such circumstances any offspring sired from that relationship would be kosher. See MT, Gerushin 2:7, 10:2. For an unintentional misconstrued understanding of his view, see this writer’s Rabbinic Authority: The Vision and the Reality (hereafter: Rabbinic Authority) vol. 1, 175, text accompanying n. 51. In short, Jewish divorce must be consensual. In the event that a get is not forthcoming from a husband, we address whether there are grounds to void a marriage of a woman to an apostate, to a husband who is incapable of copulation, a husband who engages in spousal rape and a husband who fails to provide support for his wife. Furthermore, we address whether there is a basis to void a marriage of a husband who suffers from delusional jealousy disorder, a husband who is physically abusive and/or emotionally abusive to his wife and/or children and a stepfather who engages in pedophilia with his stepdaughters. Finally, if a husband prior to the marriage contracted HIV and he failed to disclose this matter to his wife until after their marriage, is the wife permitted to continue to live with him and simultaneously request that her marriage be voided due to his mum gadol, major defect(hereafter: mum or defect)? Or if a wife knew prior to her marriage that her husband suffers from severe depression, is there any halakhic credence to her claim that after being married to him she suddenly discovers that she cannot tolerate the situation and wants to have her marriage voided? Finally, there may arise in a situation where it is our understanding and assessment that a wife would have never agreed to the marriage if she had been aware of the lot that would befall her, namely remaining an agunah forever. In such a situation, may the marriage be voided? In two cases we explain why a wife’s allegation that her husband failed to disclose prior to the marriage that her husband suffered from severe depression and contracted HPV will not serve as justifications for voiding the marriage. In our analysis, under certain conditions we apply the avenues of “kiddushei ta’ut” and “umdana” in order to void a particular marriage.4For a detailed analysis of these two techniques, see this writer’s Rabbinic Authority vol. 3, 134–176. For other avenues which have been utilized to void a marriage, see Rabbinic Authority, vol. 3, 231–263.
ט׳
9In chapter eight, we have included eight presentations, many of them inspired by reasoned opinions handed down as a dayan at the International Beit Din located in New York City. In each presentation, we offer a rendition of the facts of the case. Subsequently, there is a discussion of the halakhic issues emerging from the facts, followed by a decision rendered by the beit din panel. To preserve the confidentiality of the parties involved in these cases, all names have been changed, and some facts have been changed and/or deleted.5Additionally, we have included another line of argumentation for voiding the marriage which did not appear in two of the original decisions examined in chapter 8. See infra chapter 8c, text accompanying note 61 and chapter 8f,text accompanying nn. 49–51. To expand the reader’s horizons we have incorporated an introduction to chapter eight which elucidates the dynamics underlying the halakhic reasoning utilized in arriving at the various decisions presented there.6See Introduction infra text accompanying notes 25–48.
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10As we elucidated elsewhere,7See this writer’s Rabbinic Authority, vol. 3, 256–262. the majority of authorities argue that it is a nohag, a practice rather than a halakhic duty to enlist the support of an outside rabbinic authority (ies) prior to rendering a decision regarding marriage and divorce in general and voiding a marriage in particular. Recently, Rabbi Refael Shlomo Daichovsky, retired dayan from the Beit Din ha-Rabbani ha-Gadol in Yerushalayim published an essay wherein he contends that a credentialed beit din who has a track record of issuing piskei din, decisions is empowered to render a judgment without seeking outside rabbinic approval provided there has been a critical investigation of the halakhic sources as well as a thorough scrutiny of the facts.8“May a dayan retract his decision” (Hebrew) 37 Tehumin 343, 345 (5777).As he notes there is the Talmudic imperative that “a dayan must be guided by what his own eyes observe”9Bava Batra 131a. and consequently, even if a second opinion questions the merit of the dayan’s argumentation since he has not participated in the actual rabbinical court proceeding he should rely upon the dayan’s position.10Teshuvot Hut ha-Meshullash 9. For other understandings of this principle see Sanhedrin 6b; Nidah 20b; Rashbam, Bava Batra, supra n. 6, s.v. ve-al tigmeru; Hiddushei ha-Ran Bava Batra, supra n. 7; Yad Ramah, Bava Batra 8:135; Teshuva Rabbi Avraham ben ha-Rambam 97. Finally, contends Rabbi Daichovsky that the psak din is valid even if other rabbinic decisors dissent from its conclusion or if the ruling is in error.11See supra n. 8; Teshuvot Lev Shomeia le-Shlomo, 2: 37. For some of the authorities that Rabbi Daichovsky relies upon to reach his conclusions, see Sefer ha-Hinnukh, mitzvah 496; Derashot ha-Ran, ha-Derush 11; Taz, Divrei Dovid al ha-Torah, Shofetim 17:11; Iggerot Moshe, Orah Hayyim, Introduction.
In a matter of horo’ah (ritual law) such as marriage and divorce should the beit din err in devar Mishneh (a matter explicit in the Mishneh – loosely translated as black letter Halakhah) it is null and void or if the error is in a matter of shikkul ha-da’at (a matter of halakhic discretion) which is not linked to sevara (halakhic logic) the decision is null and void. See Sanhedrin 33a; Hiddushei ha-Ritva, Avodah Zarah 7a; Shakh, SA YD 242:58. It is only when a decision where the error is in shikkul ha-da’at which is linked to sevara that the decision is final. See Torah Temimah, Devarim 17:11.
Should the error be submitted for deliberation to the local Torah scholars and to the arbiter who rendered the decision and if the dayan continues to affirm his own ruling, one cannot force him to change his mind. Since he was authorized to render a ruling, in accordance with the aforementioned Poskim his ruling is final even though it is based upon an error. Clearly, other authorities are entitled to disagree with his position.
For definitional guidance regarding these two types of error in devar Mishneh and in shikkul ha-da’at see Sanhedrin 33a; Beit ha-Behirah, Sanhedrin 33a; ha-Maor ha-Gadol, on Alfasi to Sanhedrin 12a; MT Sanhedrin 6:1–2; Piskei ha-Rosh Sanhedrin 4:6. As long as we are dealing with a credentialed beit din (even hedyototh – laymen) that errs, “shelo ke’din” (in R. Gartner’s words), argues Dayan S. Tzvi Gartner though there is no mitzvah to accept the ruling from the perspective of the matter under deliberation by the beit din, nevertheless there is a mitzvah, a duty to adhere to the words of Torah scholars.12Kefiyah be-Get, 20, 152. However, Rabbi Gartner seems to argue subsequently that should the beit din actually err there is no duty to comply with their words. See Kefiyah be-Get, 153. See also, File no. 306044470-21-4, Yerushalayim Regional Beit Din, June 10, 2008.
In a matter of horo’ah (ritual law) such as marriage and divorce should the beit din err in devar Mishneh (a matter explicit in the Mishneh – loosely translated as black letter Halakhah) it is null and void or if the error is in a matter of shikkul ha-da’at (a matter of halakhic discretion) which is not linked to sevara (halakhic logic) the decision is null and void. See Sanhedrin 33a; Hiddushei ha-Ritva, Avodah Zarah 7a; Shakh, SA YD 242:58. It is only when a decision where the error is in shikkul ha-da’at which is linked to sevara that the decision is final. See Torah Temimah, Devarim 17:11.
Should the error be submitted for deliberation to the local Torah scholars and to the arbiter who rendered the decision and if the dayan continues to affirm his own ruling, one cannot force him to change his mind. Since he was authorized to render a ruling, in accordance with the aforementioned Poskim his ruling is final even though it is based upon an error. Clearly, other authorities are entitled to disagree with his position.
For definitional guidance regarding these two types of error in devar Mishneh and in shikkul ha-da’at see Sanhedrin 33a; Beit ha-Behirah, Sanhedrin 33a; ha-Maor ha-Gadol, on Alfasi to Sanhedrin 12a; MT Sanhedrin 6:1–2; Piskei ha-Rosh Sanhedrin 4:6. As long as we are dealing with a credentialed beit din (even hedyototh – laymen) that errs, “shelo ke’din” (in R. Gartner’s words), argues Dayan S. Tzvi Gartner though there is no mitzvah to accept the ruling from the perspective of the matter under deliberation by the beit din, nevertheless there is a mitzvah, a duty to adhere to the words of Torah scholars.12Kefiyah be-Get, 20, 152. However, Rabbi Gartner seems to argue subsequently that should the beit din actually err there is no duty to comply with their words. See Kefiyah be-Get, 153. See also, File no. 306044470-21-4, Yerushalayim Regional Beit Din, June 10, 2008.
י״א
11To state Rabbi Daichovsky’s posture differently, for those Poskim who refrain from seeking halakhic approval of their rulings prior to handing them down, implicit in their position is that a credentialed arbiter who is imbued with yirat shamayim (fear of heaven) is empowered to render a decision that may be at variance with a ruling handed down by any of his predecessors provided that the ruling is reflective of an analysis of applicable halakhic sources and based upon a scrutiny of all the facts. As such, it is readily understandable that the seeking of “an outside rabbinic opinion” by a credentialed beit din in order to endorse voiding a particular marriage is a nohag rather than a halakhic duty.13Piskei ha-Rosh, Sanhedrin 4:6; Teshuvot ha-Rosh 55:9; Derashot ha-Ran, ha-Derush 7; Rema, SA HM 25:2; Teshuvot Hut ha-Meshullash 9; Ha’amek Davar, Bereshit 49:4, Devarim 1:3; Ketzot ha-Hoshen, introduction; Arukh ha-Shulhan HM 8:3, 25:2; Introduction to Sefer Dor Re’ve’ei, Tractate Hullin; Hazon Ish, Kovetz Iggerot 2:15; Iggerot Moshe, supra n.11, Orah Hayyim 4:11, 39, Yoreh De’ah 1:101,3:88,5:8, Dibrot Moshe, Shabbat 10:2. See further this writer’s Rabbinic Authority, vol. 1, 44–64.
י״ב
12Chapter three has originally appeared in The Jewish Law Annual, chapter four has originally appeared in Dine Israel, and chapters five and six have originally appeared respectively in Tradition and in Israel Law Review. All of these published essays appear here in an expanded and updated form.
י״ג
13As we have shown elsewhere,14See this writer’s Rabbinic Authority, vol. 3, 134–176. there is an ongoing debate whether voiding a marriage is halakhically proper as a solution to “the plight of the agunah”. Offering us an intriguing interpretation of the Talmudic halakhic-philosophical statement “Elu ve-elu divrei Elokim hayyim” (lit. these as well as these are the words of the living God), Rashi of eleventh century France teaches us,15Ketuvot 57a,s.v. mai kamashma lon.
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14When the two rabbis of the Talmud disagree with each other concerning the Halakhah . . . there is no untruth here. Each of them justifies his view. One gives a reason to permit, the other gives a reason to forbid . . . It is possible to state “both speak the words of the living God”. At times, one reason is valid; at other times, another reason. For reasons change even in the wake of only slight changes in the situation.
ט״ו
15In the wake of the increasing number of agunot both in our Orthodox Jewish and non-Orthodox Jewish communities, an agunah’s unwillingness to be extorted by her husband in order to procure her get, the lingering fear of an agunah to decide “to leave the fold” due to her plight and the contemporary inability in the Diaspora to physically coerce a husband to give a get represent in Rashi’s words “slight changes in the situation” which dictate the adoption of “the reason” which is permissive. As such, in circumstances where all attempts to procure a get for the wife fail, ”the reason” that ought to be ruling the day is to void the marriage based upon techniques which have been expounded in Halakhah dating back to the early thirteenth century.
ט״ז
16Hopefully our presentation will educate our community regarding the parameters and scope of rabbinic authority in general and “shatter the silence” surrounding how rabbinic authorities and battei din (rabbinic courts) have dealt with bittul kiddushin in particular. In the wake of get recalcitrance, for those agunot who avail themselves of the services of a beit din who is willing to critically investigate the possibility of voiding a marriage, it becomes a life-defining moment for them. They deserve no less. As the late Rabbi Avraham Shapiro, former Chief Rabbi of Israel states,16Teshuvot Minhat Avraham 4:6.
י״ז
17. . . . a beit din is obligated to pursue a (halakhic – AYW) solution in order that the wife does not remain an agunah.
י״ח
18A. Yehuda (Ronnie) Warburg
י״ט
1922 Kislev 5777
כ׳
20December 22, 2016
