סמכות רבנית כרך ה, השמטותRabbinic Authority V, Addendum
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1Page 12, n. 4. What is the difference between voiding a kiddushin (halakhic betrothal-loosely translated as marriage) and annulling a kiddushin?
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2The four scenarios in six discussions in the Talmud Bavli serve as the Talmudic precedents for empowering our rabbis (“kol ha’me’kaadesh adata de’rabbanan me’kadesh”) to annul a kiddushin.1Ketuvot 3a, Yevamot 90b and 110a, Gittin 33a and 73a, Bava Batra 48b. One type of annulment addresses a husband who instructed a get ought to be delivered to his wife and either granted it to her contingent upon the fulfillment of a certain condition or forwarded it to her via an agent and subsequently changed his mind and attempted to annul the get. Under such circumstances, Halakhah allows for the retroactive annulment of the kiddushin (“afk’inhu rabbanan le-kiddushin minei”).A second type of annulment transpires after the kiddushin and/or the marriage (nissuin)where a get was drafted and delivered either to an agent of the wife or to the wife herself but was subsequently invalidated. In both instances, the annulment is contingent upon the wife receiving a get (a get kol de’hu) even if the giving of it is against the husband’s will.2Rashi, Ketuvot 3a, s.v. kol hamekadesh; Rashi, Gittin 33a, s.v. adatei de’rabbanan mekadesh; Tosafot Ri ha-Lavan, Ketuvot 3a, s.v. kol ha-mekadesh; Hiddushei ha-Rashba, Ketuvot 3a; Teshuvot ha-Rashba 1:1162; Hiddushei ha-Ramban, Ketuvot 3a; Shitah Mekubetzet, Ketuvot 3a in the name of Ritva; Beit ha-Behirah, Ketuvot 3a;Ri Megas, Beit ha-Behirah, op.cit.; Hiddushei ha-Ra’ah, Ketuvot 3a; Pnei Yehoshua, Ketuvot 3a; Yam shel Shlomo Ketuvot 3:5.
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3However, the two Talmudic cases recorded in Yevamot 110a and Bava Batra 48b dealing with annulling a kiddushin due to a prospective husband acting inappropriately during the time of the kiddushin does not require the giving of a get. Lest one argue that we are empowered to annul a marriage without a get based upon the above Talmudic precedent in other situations such as the modern-day agunah where a husband refuses to give a get, our authorities rule that annulment is limited to the cases memorialized in the Talmud.3Hiddushei ha-Rashba, Ketuvot 3a, s.v. kol de’mekadesh;Teshuvot ha-Rashba 1:1185;Teshuvot ha-Radakh, page 19,s.v. ve’ain lomar; Teshuvot Hakham Tzvi 124; Teshuvot Zekhor Simha 177; Teshuvot Melamed le-Hoeil 3:22.
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4On the other hand, there are various techniques recognized under certain conditions by our authorities for voiding a kiddushin. For example, if a husband intentionally or unintentionally fails to disclose to his prospective wife before the marriage a major defect(mum gadol) such as being mentally dysfunctional, gay, a criminal, impotent, or sterile. In other words, it is “a marriage in error” (kiddushei ta’ut) and if the marriage is voided the wife is free to remarry without a get. In sum, whereas invoking marital annulment mandates the giving of a get, voiding a marriage has no such requirement. Whereas, marital annulment is premised upon a bona fide halakhic kiddushin, voiding a kiddushin is predicated upon the conclusion that there never was a halakhic kiddushin.4As we have noted elsewhere, there are authorities who utilize the term of annulling a marriage when in actuality the marriage is being voided. As such, in their minds there is one type of annulment which nullifies a priori the act of kiddushin and there is a second type of annulment which is predicated upon the notion that the kiddushin actually was established and ex post facto arbiters are empowered to annul it. See Rabbi S. Cohen, “Get Coercion in Contemporary Times,” (Hebrew) 11 Tehumin 195, 199 (5750).
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5Page 13, n. 4. On the one hand argues Rabbi Avraham Sherman that given that the Torah scholars of the Jewish community are capable of identifying who are “the Torah giants of their generation” therefore we are dutibound to comply with their rulings in particular in the realm of marriage, divorce and conversion.5See Rabbi A. Sherman, “The authority of the scholars of the generation in matters of personal status and conversions,” (Hebrew) 30 Tehumin 163 (2070). See also Rabbi A. Sherman, “The authority of the scholars of the generation in matters of personal status and conversions,” (Hebrew) 30 Tehumin 163 (2070); Teshuvot Ein Yitzhak, Introduction by Rabbi Y. Abramski, Machon Yerushalayim ed.
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6Consequently, as we noted some contemporary authorities rely upon this position to invoke the argument that voiding a marriage is within the jurisdiction of Torah giants of the generation only.
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7However, as we have observed, there is well-grounded tradition (mesorah) that opine that voiding a marriage resides in the hands of credentialed halakhic decisors.6See also, Rambam, Introduction to Mishneh Torah, Mishneh Torah, Mamrim 2:1; Tur HM 25; Rabbi Refael Shlomo Daichovsky, Lev Shomeia le-Shlomo 2:37
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8Similarly, Rabbi Dovid Babad, a renowned 19th century authority communicates to us the following tradition that he received:
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9“I heard from ha-Gaon Rav Barish Rappaport . . . that he had a tradition from his Rav, ha-Gaon Noda Bashearim, ha-Av Beit Din of Lublin, that upon receiving a question to address, he would first weigh in his mind the truthfulness of the matter according to what human reason dictates and if in his estimation human reason the matter is true, then he will delve into Halakhah to arrive at a decision.”7Teshuvot Havatzelet Hasharon 2:28
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10By invoking this tradition which addresses the mission of the credentialed arbiter in rendering a ruling in every realm of Halakhah, twentieth century Torah giants, Rabbis Ya’akov Breisch and Yitzhak Weiss convey to us that resolution of all cases including classical agunah questions where the husband is missing is within the purview of a rabbinic authority rather than only to be addressed by a Torah giant.8Teshuvot Helkat Ya’akov, EH 56 and Teshuvot Minhat Yitzhak 9:130. Moreover, a credentialed decisor may overrule a Torah giant provided that he submitted proofs to support his position.9Piskei ha-Rosh, Sanhedrin 4:6; Teshuvot Rid 72; Teshuvot ha-Rashba 2:322; Teshuvot Terumat ha-Deshen, Pesakim u-Ketavim 238; Rema, SA YD 242:3; Teshuvot ha-Mabit 116; Pri Hadash OH 496:11; Noda be-Yehudah, Mahadura Kama YD 55;Teshuvot Ya’avetz 1:5; Arukh ha-Shulhan YD 242:23,36; Hazon Ish, Kil’ayim 1, letter; Teshuvot Iggerot Moshe OH 109,YD 3:88; Teshuvot Mishneh Halakhot 8:137; Teshuvot Yabia Omer 1, Introduction, section 12.
In short, with the absence of a Sanhedrin, there is no central authority which obligates the entire Jewish community. A Torah giant’s ruling is obligatory only upon those who have accepted his authority. See Rabbi S. Daichovsky, “Da’at Torah in Halakhah,” (Hebrew), 30 Tehumin 174,182(5770). In the absence of accepting his authority, decisions are rendered by credentialed arbiters who are accepted by members of the community. See further this writer’s Rabbinic Authority, vol. 1, 15–64. Cf. others who construe a Torah giant as a mentor for the community. See Tosafot Berakhot 31b, s.v. moreh; Teshuvot Terumat ha-Deshen 1:138.
Lest one claim that the system is reduced to the arbiter’s whims, there are guidelines for overruling a contemporary decisor or a predecessor which guarantee the integrity of the decision making process. See Rashbam, Bava Batra 131a, s.v. ve’al tigmeru; Teshuvot of Rabbi Avraham, son of Rambam 97; Beit ha-Behira, Bava Batra 130b; Teshuvot ha-Rashba 2:322 and the abovementioned sources. For example, one of the guidelines is to follow under certain conditions the view of the wiser decisor. See Avodah Zarah 7a; Teshuvot ha-Rosh 94:5; Teshuvot ha-Rashba 1:253; Rema, SA HM 25:2; Shakh, SA YD 242:8; Teshuvot Hikrei Lev, OH 496:96. (Cf. Rid, op. cit.; Kesef Mishneh, MT , Mamrim 1:5 in the name of Rambam.) Consequently, some authorities contend that in light of the opinions of Torah giants of earlier generations, an arbiter must refrain from rendering an autonomous judgment. See Teshuvot Maharik, shoresh 159; Rabbi Y. Karo, Introduction to Beit Yosef; Get Pashut, Kelal 5; Urim ve-Tumim HM 25.
In short, with the absence of a Sanhedrin, there is no central authority which obligates the entire Jewish community. A Torah giant’s ruling is obligatory only upon those who have accepted his authority. See Rabbi S. Daichovsky, “Da’at Torah in Halakhah,” (Hebrew), 30 Tehumin 174,182(5770). In the absence of accepting his authority, decisions are rendered by credentialed arbiters who are accepted by members of the community. See further this writer’s Rabbinic Authority, vol. 1, 15–64. Cf. others who construe a Torah giant as a mentor for the community. See Tosafot Berakhot 31b, s.v. moreh; Teshuvot Terumat ha-Deshen 1:138.
Lest one claim that the system is reduced to the arbiter’s whims, there are guidelines for overruling a contemporary decisor or a predecessor which guarantee the integrity of the decision making process. See Rashbam, Bava Batra 131a, s.v. ve’al tigmeru; Teshuvot of Rabbi Avraham, son of Rambam 97; Beit ha-Behira, Bava Batra 130b; Teshuvot ha-Rashba 2:322 and the abovementioned sources. For example, one of the guidelines is to follow under certain conditions the view of the wiser decisor. See Avodah Zarah 7a; Teshuvot ha-Rosh 94:5; Teshuvot ha-Rashba 1:253; Rema, SA HM 25:2; Shakh, SA YD 242:8; Teshuvot Hikrei Lev, OH 496:96. (Cf. Rid, op. cit.; Kesef Mishneh, MT , Mamrim 1:5 in the name of Rambam.) Consequently, some authorities contend that in light of the opinions of Torah giants of earlier generations, an arbiter must refrain from rendering an autonomous judgment. See Teshuvot Maharik, shoresh 159; Rabbi Y. Karo, Introduction to Beit Yosef; Get Pashut, Kelal 5; Urim ve-Tumim HM 25.
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11Clearly, when dealing with an issue such as the propriety of introducing the solution of a conditional marriage (tenai be-nissu’in) as one of the avenues of establishing marital procedures for the Jewish community,10See this writer’s Rabbinic Authority, vol. 4, 21-48. there exists a practice (a nohag) to enlist the consensus of Torah giants of the generation in order to validate these procedures.11Rabbi Shalom Schwadron and Rabbi Hayyim Ozer Grodzinsky, Ein Tenai be-Nissu’in, Vilna, 1930, 22, 37, 56.
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12However, when dealing with private matters of conversion and marriage and divorce, every beit din and/or rabbinic authorities are empowered to resolve these issues.
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13Page 17, n. 17. Voiding a marriage may under certain conditions be executed in a situation of a dire need upon the reliance of a singular view entailing the Biblical matter of the prohibition of a married woman (an eishit ish).12Teshuvot Yabia Omer 8, OH 34(6), 10 YD 43(3-4). See further this writer’s Rabbinic Authority, vol. 3, 245–256.
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14Given that the application of following the majority rule is limited to resolving issues within the confines of a halakhic-judicial proceeding (a moshav beit din) where give and take transpires face to face between the dayan and the minority may express his view, throughout the ages we usually are dealing with an intergenerational and/or international dispute where we do not have the ability to decide which opinion carries greater or lesser weight.13Get Pashut, Kelalim , Kelal 1,5; Teshuvot Maharlbah 147; Beit Yosef HM 13(end) in the name of Rashba,Teshuvot She’elat Ya’avetz 1:157; Hazon Ish, Kil’ayim 1; Teshuvot Havatzelet ha-Sharon OH 2.
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15That being said some arbiters contend that even if normative Halakhah is reflective of the majority issue regarding a particular issue, nevertheless one may invoke a double halakhic doubt even with the minority view in variance with the majority opinion.14Teshuvot Zivhei Tzedek YD 110:155; Teshuvot Beit Dovid YD 6; Teshuvot Devar Moshe 3, YD 2; Teshuvot Shemesh u- Tzedakah YD 50; Teshuvot Hesed le-Avraham, OH 13.
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16Page 55, n. 12. Upon a pending divorce where a beit din obligates a get and a wife refuses to accede to her husband’s demands, it may be viewed by the Israeli rabbinical courts as “chaining herself” (me’agenet et atzma) to the marriage . Said conclusion is contingent upon the beit din understanding that these demands are rational such as a husband requesting custody be given to him rather than to his parentally unfit wife or recovering monies stolen from him by his spouse. In other words, the beit din panel may attempt to persuade the wife to remit stolen assets or other benefits which are reasonable demands in order that he may be willing to give a get. Under such conditions, should a wife refuse to comply with such demands, a husband’s get recalcitrance is halakhically legitimate.15PDR 21:176,181; File no. 1-64-5082, Beit Din ha-Rabbani ha-Gadol, May 29, 2002; File no. 7479-21-1, Beit Din ha-Rabbani ha-Gadol, November 18, 2007; File no. 7041-21-1, Beit Din ha-Rabbani ha-Gadol, March 11, 2008; File no. 272088/6, Netanya Regional Beit Din, January 1, 2011.
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17Page 61, n. 31. On the other hand, we should note that there are many authorities who will invoke as a supporting argument for leniency (senif le’hakeil) Rambam’s controversial posture memorialized in Mishneh Torah, Ishut 14:8 that upon a wife advancing a plea of repulsion rather than attempting to torment him, a get may be compelled in a situation of “an hour of emergency” and get recalcitrance.16Teshuvot ha-Rosh 35:2; Teshuvot Tashbetz 2:8, 4:35(end); PDR 1:18, 3:3, 8:126, 9:171; Teshuvot Yabia Omer 3, EH 20(34).
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18Page 80,n. 23. Lest one contend that one should validate the witnesses and thus the act of kiddushin based upon the adoption of the stringent view, Rabbi Yitzhak Elhanan Spektor opines otherwise. In Rabbi Spektor’s mind, in a case of invalid witnesses one ought to follow the lenient opinion which he characterizes as “the letter of Halakhah”(ikar hadin) and concludes that the kiddushin be voided rather than act strictly based upon a stringency.17Teshuvot Ein Yitzhak 2, EH 64(2).
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19Page 83, n. 37. For precedent for those decisors who argue that “we are witnesses” may be employed as a means to validate testimony for the establishing the act of kiddushin, see Mordekhai, Kiddushin 531; Beit Shmuel, SA EH 42:12.Cf. additional antecedents for those arbiters who reject the mechanism of “we are witnesses” as an avenue to validate testimony, see Teshuvot ha-Rashba 1:1193; Rema, SA EH 42:4; Tumim, HM 90:14.
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20Page 98, n. 7. Pursuant to Israeli law, all marriages are to be conducted by rabbis who are recognized by the Chief Rabbinate. Accordingly, private marriages are a contravention of Halakhah and may be subject to an annulment (hafka’at kiddushin) or voiding of the marriage (bittul kiddushin).18B.M. Lewin, Otzar ha-Geonim, Ketuvot, Teshuvot Section, 18–19 in the name of Rabbi Hai; Teshuvot Maharashdam EH 21,30; Teshuvot Prei ha-Aretz 3, EH 2 (26c); Teshuvot Sedeh ha-Aretz 3, EH 3; Teshuvot Heikhal Yitzhak EH 1:5; Teshuvot Yabia Omer 4, EH 5(10);File no. 1093889/1, Yerushalayim Regional Beit Din, March 14,2017. For additional sources, see Otzar ha-Poskim Kiddushin 49:3(6). Cf. Teshuvot Admat Kodesh, EH 39.
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21Page 128, line 21. As we have demonstrated in the wake of the controversy between Rosh and Rashba, the propriety of utilizing a borrowed ring generates a halakhic doubt regarding the validity of the act of kiddushin. As such one may combine this doubt with the other doubt(s) which we presented concerning the act of kiddushin and rule leniently.19Teshuvot Yabia Omer 6, EH 6(7) in the name of various decisors. Cf. other authorities who mandate the existence of at least three doubts prior to ruling leniently.20Teshuvot Avnei Nezer EH 119(64); Seder Eliyahu Rabbah ,Sha’ar 1 (end); Teshuvot Kapei Aharon EH 5; Teshuvot Hayyim ve-Shalom 1:22 (in a case of get recalcitrance).
כ״ב
22Page 181, n. 74. Construing the voiding of a marriage based upon an “error in the marriage” (kiddushei ta’ut) to be grounded in “the meeting of the minds” (gemirat da’at) which is consummated by the act of kiddushin or based upon the violation of a condition (tenai) is subject to debate amongst other decisors.21Mekor Hayyim, Biurim 448:9.Cf.Teshuvot Avnei Nezer 255; Teshuvot Birkat Retzeh 14; Teshuvot Beit Yitzhak HM 64.
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23Page 315, n. 30. Clearly, if the proceeding dealing with end of marriage issues will not be lengthy, the get ought to be executed after the completion of the proceeding.22File no. 1125604/8, Beit Din ha-Rabbani ha-Gadol, February 11, 2020.
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24Page 230, n. 74. Cf. other arbiters who argue that if epilepsy is viewed as a major defect (a mum gadol), then the wife never accepted her husband’s epilepsy.23Sefer ha-Mikneh, Kuntres Aharon 39:5; Teshuvot Yabia Omer 2, EH 9.
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25Page 318, n. 36. . . . January 25, 2018. There are some rabbinical courts who refrain from obligating a get due to the decisors who contend that should there emerge a halakhic error in obligating a husband to give a get in the particular circumstances, a coerced get (a get me’useh) is generated. In other words, his willingness to give a get was predicated upon his perception that Halakhah mandated that a get ought to be given. As such, he willingly gave a get to his wife. In the wake of the emergence of the error, it became clear that Halakhah did not mandate a get ought to be given. As such the giving of it is halakhically construed as being coerced. And there are others who argue “a get in error” (a get mut’eh) has been produced. In other words, had the husband known that there was no basis to execute a get; he never would have given it. Consequently, the divorce via the get is null and void.24Hazon Ish, op. cit.; Teshuvot Oneg Yom Tov EH 168(244b-245a).
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26For one of the most systematic and comprehensive treatments of the halakhic concept of “a get in error”, see Ateret Devorah 1:86. For a recent practical application of this concept, see File no. 1066559/12, Yerushalayim Regional Beit Din, March 27, 2020.
