Facts of the Case
The couple was married in March 2010. Until April 2012, she lived in the same bedroom with him and subsequently moved out of the house in June 2012. In a Deal Memorandum (“Agreement”) dated June 2, 2013, executed between the above referenced parties and signed equally by their respective legal counsel there was a provision that the husband would be give a get (a Jewish divorce) to his wife.
Ms. Aliza Friedman (hereafter: the Tova’at—the plaintiff) summoned Mr. Baruch Friedman (hereafter: the Nitva—the defendant), her husband, before our Beit Din for the purpose of receiving her get. The couple was civilly divorced in July 2013. To this very date, the Tova’at has not received her get. The Tova’at was informed by the Nitva’s attorney that the get would be granted on the condition that the Tova’at would sign a stipulation that she would waive her right to any share of the community property. Should she sign the waiver, the Nitva would give her a get.
Discussion
In Section IV of the Agreement it states,
The exact language of what needs to be done to obtain a Get shall be included in the Judgment and Respondent shall participate in the ceremony as required by Bet Din of Aliza’s choice. Said ceremony shall be initiated as soon as possible but the final step shall take place upon the date the parties execute the Judgment of Dissolution and the related forms.
According to Halakhah, the question is if a couple takes upon themselves the obligation to dissolve their marriage, is such an agreement valid? An Israeli rabbinical court gave the following reply:
it is clear that a divorce decree issued following a mutual agreement to be divorced, even though the parties undertook the obligation. . . . does not obligate them to become divorced . . . each party may withdraw from the agreement.”1Piskei Din Rabbanayim (hereafter: PDR) 8:175, 179
That is, such an agreement is null and void. Numerous rabbinical courts in Eretz Yisrael have taken this position.2PDR 8:257,262; 2:289,290; 3:322, 323; 11:89, 91. See this writer’s, “Breach of a promise to marriage,” 17 The Jewish Law Annual 267 (2007).
The agreement has may be characterized as “a promise”, which is binding because Halakhah mandates one to keep one’s word. However, this mandate is unenforceable by a beit din.3Shulhan Arukh (hereafter: SA) and Rema, Hoshen Mishpat (hereafter: HM) 204:7. A promise to perform an action in the future, such as the promise to give a get in the future, cannot constitute a hithayivut (the undertaking of an obligation).4For differing rationales why a promise to carry out a future action is invalid, see Rashi, Bava Batra 3a s.v. kinyan devarim hu; Piskei ha-Rosh, Bava Batra 1:3; Teshuvot Torat Hessed 228; Teshuvot Imrei Yosher 1:203.
For Poskim who reject the possibility of obligating the giving of a get via the signing of a divorce agreement accompanied by the execution of a kinyan (a symbolic act of undertaking an obligation), see Teshuvot Terumat ha-Deshen, Psakim 173; Beit Shmuel, SA, Even ha-Ezer (hereafter: EH) 134:7; Shakh, SA, Yoreh De’ah (hereafter: YD) 258:22. However, in our case, if all the terms of the divorce agreement would have been connected to the execution of a get and in effect the execution of the get is a tenai (a condition) to the implementation of the terms of the agreement, then the Nitva would have been obligated to give a get to the Tova’at. See PDR 5:208.
Despite the fact that a beit din cannot mandate that the Nitva comply with his promise to execute a get, over three years have lapsed since they have been separated and this Agreement to address their end-of-marriage issues was executed over three years ago. Clearly, the circumstances indicate that we are dealing with “a dead marriage” with no hopes for marital reconciliation; therefore, the Nitva is obligated to give a get to the Tova’at.5Whether one requires that marital separation be for one year or eighteen months prior to a beit din obligating the giving of a get is subject to debate. See Sefer Meisharim Helek 8, Netiv 23; Teshuvot Hayyim ve-Shalom 2:112; Iggerot Moshe, YD 4:15. For a few of the contemporary battei din rulings, see PDR 13:264; File no. 854682/1, Beit Din ha-Rabbani ha-Gadol, June 28, 2012; File no. 470386-20, Haifa Regional Beit Din, June 26, 2014; File no. 4827-21-2, Beit Din ha-Rabbani ha-Gadol, July 3, 2005 (Rabbi Daichovsky’s opinion).
Given that in our case the separation has been over three years, the consensus of the above-cited authorities would be that the Nitva is obligated to give a get. Whether marital separation and the lack of prospects for reconciliation is an ilat gerushin (a ground for obligating a get) or reflects a beit din’s unwillingness to allow such a situation to persist is a matter of controversy.
In an earlier psak din, we therefore ordered the husband, the Nitva to give a get to his wife unconditionally.6Once a beit din obligates the giving of a get, no preconditions can be advanced by the husband prior to executing the get. See Teshuvot ha-Rashba 4:256; Bedek ha-Bayit on Beit Yosef, Tur, HM 143; SA, EH 143:21; see supra chapter 2. However, to this date, the Nitva refuses to give his wife a get.
The question that remains is whether there are grounds to authorize a heter nissuin (permission for the Tova’at to remarry) without the issuance of a get.
Let’s focus upon the wedding ceremony, the event that established the marriage between the couple. To understand the background and building blocks of this practice, we need to offer some halakhic background. Recognizing that marriage consists of two separate acts, called kiddushin (i.e. act of halakhic engagement without cohabitation) and nissuin (marriage with cohabitation) respectively, Rabbi Norman Frimer and Rabbi Dov Frimer note,7Norman Frimer and Dov Frimer, “Reform Marriages in Contemporary Halakhic Responsa,” 21 Tradition (1984) 7, 9–11.
In practical terms, kiddushin as the primary state of Jewish marriage can be . . . normatively constituted through the presence of five halakhic elements . . . At the helm stands kavanah: intention. But intention for what? Two divergent directions emerge . . . According to one authority, the intent of the couple must be for at least the most minimal and natural characteristics of the marital experience . . . That decision, however, must also include the stipulation that the wife shall be exclusively related to her husband and prohibited to all others. From this intent of le-shem ishut will then flow all other authority which will bestow legitimacy and direction upon the formal ceremony and simultaneously form the foundation of the kiddushin. The other view finds the natural standard utterly inadequate . . . What, then, shall be the normative canon for kavanah? It must be lekiddushei Torah or leshem kiddushin . . . a conscious awareness that the ceremony must be kedin, in faithful fulfillment of the hallowed imperatives of Jewish law . . .
. . . the intention to marry must be visibly objectified, in order both to articulate as well as to inculcate the core ideas of that kavanah. Jewish tradition, therefore, devised two more patterns of action to achieve tangibility. One of them was the amirah, an official verbal declaration of marital kavanah to be made directly by the groom to his bride in a formal and public style . . . The other act . . . was the netinah, giving, initiated again by the groom and complemented by the parallel kabbalah, receipt, by the bride. These sequential acts of “give and take” involve an object . . . traditionally a ring . . .
But not only must these facets of kavanah be shared between bride and groom. Normally, the halakha also demands . . . ratson-a fourth element, involving the couple’s voluntary assent to all parts of the erusin (i.e. kiddushin –AYW) . . .
Finally, a Jewish marriage must be witnessed by at least two qualified edim, whose responsibility is two-fold. When necessary, they . . . can help establish the facts and certify the . . . degree of compliance with the prerequisites of Jewish marriage law. Yet, even more critical is their role . . . who by their very presence and participation at the ceremony constitute the validity of the ma’aseh kiddushin. (i.e. an act of engagement –AYW.)
In short, the subjective marital intentions of the Jewish man and Jewish woman are translated into reality via verbal articulation; concretization of this intent must occur under the scrutiny of two witnesses and in the presence of an officiating rabbi and public assemblage (minimally ten adult male Orthodox Jews) for the expressed purpose of establishing a consensual marital union.
Given the procedural requirements to establish whether in fact a marriage was created, we need to inquire whether there were two adult Jewish Torah-observant males who were present under the huppah who would corroborate that the hatan was mekadesh (halakhically engaged) his kallah. Generally speaking, notwithstanding the positions of some authorities,8Penei Yehoshua, Gittin 17a; Teshuvot Divrei Yoel 34; Teshuvot va-Ya’an Dovid, EH 175, Ettinger, Teshuvot Mahari ha-Levi 1:44; Da’at Torah, YD 1(18); Teshuvot Maharam Schick, EH 48; Arukh ha-Shulhan, YD 281:9. nowadays every adult Jewish male has a “hezkat kashrut” (a presumption of being Torah observant) and therefore qualified to be a witness to the act of kiddushin.9Teshuvot Maharam Schick, EH 48; Teshuvot Beit ha-Levi 2:4; Teshuvot Maharashdam, HM 310; Teshuvot Yabia Omer vol. 8, EH 5 (2–4). That being said, we are not absolved from inquiring into the Torah observance of each witness.
Reviewing pictures of the huppah ceremony, based upon the Tova’at’s information,10For the grounds of relying upon her information, see Nahalat Tzvi 2, 241–242. Lest one argue that her information may be biased in terms of misrepresenting the facts in order for the beit din to invalidate the kiddushin, R. Feinstein rules that if it is clear that the wife does not know the halakhot regarding the requirements of having witnesses and kosher ones, then her information is deemed credible. See Iggerot Moshe EH 4:83(3).
Seemingly, the viewing of pictures or a video does not constitute halakhic testimony. As we know, in Talmudic times, the marking the New Moon was fixed by the actual observation by at least two witnesses. The Mishnah Rosh Hashanah 24a teaches us that observing the moon via its reflection in water or via the flame of the candle is considered invalid testimony. Therefore, the viewing of pictures or a video would equally be invalid testimony. However, authorities note that direct observation rather than knowledge of the event is a Halakhah regarding the sanctification of the moon; however, in other areas of Halakhah, knowledge suffices. See SA HM 30:14, 90:6; Teshuvot Ein Yitzhak EH 31; Teshuvot Shevut Ya’akov 1:126. In fact, in contemporary times, one authority argues that viewing of pictures or a video is equivalent to the testimony of two eligible witnesses. See Teshuvot Ateret Devorah vol. 1, EH 23. we found that under the huppah were the parents of the hatan and kallah, two relatives from the kallah’s family, one relative from the Nitva’s family, one woman who was a non-relative, one adult male Jew who was unrelated to anybody under the huppah and an rabbi who was mesadeir kiddushin he supervised the halakhic propriety of the kiddushin (halakhic engagement) as well as the nissuin (halakhic marriage) that were performed under the huppah. We contacted the mesadeir kiddushin and we were informed that the kiddushin was performed without designating (meyaheid) the witnesses. Moreover, we inquired and discovered that the mesadeir kiddushin violated the Shabbat (in the actual psak din the mesadeir kiddushin was Torah-observant).
All the relatives present under the huppah were be-dargat kirvah (in the class of relatives who would be invalidated to serve as witnesses for the act of kiddushin). Amongst the individuals present under the huppah during the performance of the kiddushin were relatives from the mother’s family. Notwithstanding most Poskim who rule that such individuals are invalid mi-de-oraita (on a biblical level),11Teshuvot ha-Rivash 14 in the name of Rav Hai, Rif, Ramban, and Rashba; Hayyim Medini, Ohr Lee, 70(4) cites Divrei Rivot that “geonai olam” disagreed with Rambam. in accordance with certain interpretations of Rambam’s view12Mishneh Torah (hereafter:MT) Hilkhot Eidut 13:1. such testimony is to be invalidated only on a rabbinic level.13Beit Yosef, Tur, EH 42 (end) in the name of Tashbetz; Shakh, SA, HM 33 Consequently, even if one rules that the individuals are invalidated as witnesses on a rabbinic level, Rambam as well as Shulhan Arukh and Rema conclude that a get is required mi-safek, because of the existence of doubt that the act of kiddushin may have been valid.14Shulhan Arukh and Rema, EH 42:5.
The individuals who were invalidated as witnesses on a rabbinic level were not the only ones present under the huppah. Individuals who were invalid mi-de-oraita were present under the huppah. Seemingly, their presence invalidates the testimony of those witnesses who were eligible mi-de-oraita based upon the rule in matters of kiddushin “if any witness is a relative or invalid, the testimony of the others is null”.15Makkot 6a. The assumption in invoking this rule is that it is applicable not only to criminal and monetary matters, but it is equally applicable to matters of kiddushin. See Teshuvot Noda be-Yehudah, Mahadura Tinyana, EH 76; Teshuvot R. Akiva Eiger, Mahadura Kama 94.
Though women are ineligible as witnesses, nonetheless the rule “if any witness is a relative or invalid, the testimony of the others is null” may be applicable to women. See Turei Even, Rosh Hashanah 22a; Teshuvot Brit Ya’akov, EH 43; Teshuvot Nahal Yitzhak, 35(6–7); PDR 10:229. Consequently, the presence of the woman who is a non-relative (as well as the other relatives) under the huppah will invalidate the eligible witness.
Implicit in our conclusion is that a woman in principle could be a witness (“shem eid aleha”), but for various reasons her testimony is invalid. See R. Y.B. Soloveitchik, Reshimot Shiurim, Shavuot and Nedarim 1–2; Reshimot Shiurim, Sukkah 108. See also Turei Even, op. cit.; Teshuvot Yabia Omer, vol. 6, EH 6.
Many Poskim, such as Hiddushei R. Akiva Eiger, YD 228:3, Teshuvot R. Akiva Eiger 1:73 (hashmatot); Teshuvot Noda be-Yehudah, HM 8; Urim ve-Tumim 36:11 Netivot ha-Mishpat 36:10, and Teshuvot Shem Aryeh, HM 13(end), argue that a woman is in principle not a witness, therefore the rule “if any witness is a relative or invalid, the testimony of the others is null” is inapplicable to women. Consequently, according to these authorities, the presence of a woman who is not a relative to the prospective couple under the huppah would not invalidate the eligible witnesses. This rule is inapplicable if a party to the kiddushin designated only certain eligible individuals to serve as witnesses to the exclusion of others. The presence of ineligible persons under the huppah will not affect the eligibility of the designated witnesses due to the fact that the selection of two witnesses in effect halakhically separates them from the individuals surrounding them during the time of the kiddushin. In our case, as we were told by the mesadeir kiddushin, he did not designate any individuals as witnesses.16Clearly, there is no requirement to designate individuals as eidei kiddushin. See SA, EH 42:4. Even if the witnesses observed the act of kiddushin, their testimony is valid. See Pithei Teshuvah, SA, EH 42:11 in the name of Beit Meir and Hatam Sofer; Teshuvot Bikurei Asher 1:12. Cf. Teshuvot Panim Me’irot 3:25.
Nevertheless, the practice in many communities is to designate them. See Hagahot ha-Semag, mitzvah 183(7); Ketzot ha-Hoshen 36:1; Teshuvot ha-Radvaz 2:707; Beit Meir 42:4; Shakh, SA, HM 37:8; Teshuvot Maharam Schick, HM 57 in the name of Hatam Sofer. Among the reasons that the practice is to designate witnesses is our concern for Ritva’s view (see infra text accompanying note 18) that ineligible witnesses may invalidate an eligible witness. See Radvaz, op. cit.; Shakh, op. cit.; Avnei Miluim 42:6; Ketzot ha-Hoshen 36; Teshuvot Beit Yitzhak, EH 99:8. Secondly, it may occur that relatives are standing next to the hatan and kallah and other nonrelatives stand at a distance from the prospective couple. Therefore, we designate witnesses in order that the eligible witnesses move forward and stand near the prospective couple to be able to testify to the act of kiddushin. See Ketzot ha-Hoshen, op. cit. Seemingly, the absence of designation invalidates any eligible witness present under the huppah during the performance of kiddushin.
The question is whether the actual presence of ineligible witnesses who are biblically invalid and who have no intention to testify to the act of kiddushin will invalidate an eligible witness as well as the relatives who are invalid according to certain Poskim? According to many Poskim, the rule of “if any witness is a relative or invalid, the testimony of the others is null” is in effect only if the ineligible witness intended to be a witness to the kiddushin.17Consequently, if the eligible witnesses intended to testify and the invalid witnesses did not intend to testify, the testimony of two eligible witnesses is valid. See SA, HM 36:1; Sma, SA HM 36:1; Netivot ha-Mishpat, Bi’urim 36:1. Cf. Shakh, SA HM 36:3. In our case, it is clear that the presence of these family members under the huppah was only for the purpose of being onlookers rather than serving as witnesses.
However, there exists the minority position of Ritva in the name of his teacher Ra’ah, which is agreed upon by some rishonim (early authorities), R. Akiva Eiger, and authoritatively cited as a senif (lit. an appendage—a supporting argument) by some contemporary dayanim that in the absence of designating the witnesses, if both eligible and ineligible witnesses are present under the huppah, that the testimony is invalid.18Hiddushei ha-Ritva, Gittin 18b,Kiddushin 43a; Shakh 36:8 in the name of ha-Gahot Semak 183; Tosafot Yeshanim in the name of Rashbam, Bava Batra 113a; Teshuvot R. Akiva Eiger, Mahadura Tinyana 56 (28b); Teshuvot Zikhron Yehuda 81; Rabbeinu Yeruham, Sefer Meisharim 7; Teshuvot Shemesh u-Magen vol. 2 EH 10, 3 EH 53; Teshuvot Tzitz Eliezer 8:37(9) in the name of Ritva, “and many uphold him”; Teshuvot Ateret Devorah, vol. 1, EH 25.
However, a review of the Poskim will show that in fact the posture that is attributed to Ritva is in actuality the posture of his teacher Ra’ah. A review of Hiddushei ha-Ritva on Tractates Gittin and Kiddushin, op. cit as well as some authorities who cite Ritva (see e.g. Erech Shulhan HM 36:6; Teshuvot Kerem Shlomo 21; Teshuvot Avir Ya’akov 24; Teshuvot Givat Olam 11; Piskei Din Rabbanayim 10: 327,329) will show that in fact Ritva dissents from his teacher, Ra’ah and it is for this reason that in one of his other commentaries of the Talmud Ritva advances a question which attacks Ra’ah’s posture. See Hiddushei ha-Ritva, Makot 6a, Mosad ha-Rav Kook ed., 79.
Nonetheless, in our presentation we have followed the lead of many Poskim who identify Ritva as the author of this view. In contemporary times, various Poskim and Israeli dayanim rule upon the propriety of a particular act of kiddushin by factoring into consideration Ritva’s view, along with other factors, in voiding a marriage under various circumstances.19Teshuvot Maharsham 2:111, 3:50; Iggerot Moshe, EH 4:13; Tzitz Eliezer, supra n. 18, at section 9; Teshuvot Yabia Omer vol. 8, EH 3(5); Teshuvot Sha’arei Tzion, vol. 2, EH 10–11; Teshuvot Shema Shlomo, vol. 4, EH 1(5).
Implicit in their posture to rely upon a minority opinion as “a senif” rather than an independent and self-standing line of reasoning is predicated upon the notion that the argument of kim li will be ineffective against contrary rulings of Shulhan Arukh and Rema. See Tumim SA HM 25. Pursuant to halakhic court procedure, a party in dispute can argue as follows: “I want the beit din to rule in my favor, which is based upon the position of Rabbi X who affirms my claim”. Under certain conditions, we will accept his view even if Rabbi’s X‘s opinion reflects a minority view. The kim li argument is generally invoked in monetary claims but equally has been employed concerning issurim, prohibitions such as ribbit, halakhically prohibited interest, shevuot, oaths, nedarim, vows and ishut, matters of personal status. See Teshuvot ha-Ridvaz 4: 278(=1349), 6:225; Teshuvot Maharibil 1:13, 2:46.Given that Ritva’s posture, supra n. 18 may be construed as a minority view related to an ishut matter and in light of the fact that neither Shulhan Aruch nor Rema subscribe to his position, consequently the above cited authorities employ Ritva’s stance as a senif only. Disqualification of the eligible witnesses is contingent upon the fact that all or at least one of the ineligible witnesses saw the eligible witnesses.20Ritva, supra n. 18; Shakh, SA, HM 36:6, 7; Netivot ha-Mishpat 36:4. Others contend that if the eligible witnesses saw the invalid witnesses, their testimony is invalid. See Netivot ha-Mishpat, Hiddushin 36:6; Sma, SA, HM 36:5(end).
In a situation where the two witnesses to the kiddushin were invalid and in light of the fact that the individuals were not designated as witnesses, argues Dayan Eliyahu Abergil that one must be concerned with Ritva’s position and one cannot validate the kiddushin based upon two eligible witnesses who are sitting in the audience. See File no. 92507/1, Be’eir Sheva Regional Beit Din, March 29, 2009.
Given that Ritva’s position is reflective of a minority view, why would we cite it as one of the bases of our judgment? Clearly there is an acute need to distinguish what transpires in the portals of the beit midrash (study hall) and the world of psak. As R. Aharon Lichtenstein astutely observes,
Hora’ah (halakhic decision-making) is comprised of two elements: psak and pesikah, respectively. The former refers to codification, the formulation of the law pertinent to a given area . . . of one position in preference to others. As such, it is, essentially the concluding phase of the learning process proper . . . and its locus is the bet midrash. Pesikah, by contrast, denominates implementation. It bespeaks the application of what has already been forged in the crucible of the learning to a particular situation . . . Its venue is, publicly, the bet din, or, privately, the meeting of the inquirer and respondent . . . Its challenge lies in the need to harness knowledge and responsibility at the interface of reality and Halakhah . . . (Leaves of Faith, vol. 1, 162–163)
Our psak’s reliance in part on Ritva’s position belies R. Lichtenstein’s understanding of what the process of psak entails for a dayan. Addressing the situation of the classical agunah where the husband has disappeared and his whereabouts are unknown and noting the uniqueness of each agunah situation, R. Ya’akov Reischer rules the following,21Teshuvot Shevut Ya’akov, 3:110. Lest one challenge our readiness to employ R. Reischer’s view in light of the fact that his ruling is le-halakhah ve-lo le-ma’aseh (in theory rather than in practice) nothing could be farther from halakhic truth. Invoking these types of theoretical rulings as practical judgments in other contexts is not unusual. See Sdei Hemed ha-Shalem, Kelalei ha-Poskim, Siman 16(47); Teshuvot Yabia Omer, vol. 3, EH 18. Consequently, in voiding a marriage where prior to the marriage a husband failed to disclose a mum gadol (a latent major defect), an arbiter has in part relied upon a theoretical decision handed down by Havot Ya’ir. See Teshuvot Dvar Eliyahu 48; Teshuvot Emunat Shmuel 34; Teshuvot Even Shoham 56.
Seemingly, relying upon a minority opinion is in conflict with the basic principle of halakhic decision-making, “aharei rabbim le-hatot”, the rule to follow the majority. See Tosefta Berakhot 4:15; Rambam, Sefer ha-Mitzvot 175; Rashi, Bava Kama 116a. However, as other Poskim note, the application of this rule is limited to resolving issues within the confines of a beit din proceeding and cannot be extended to intergenerational halakhic disputes. See Z. N. Goldberg, Darkhei ha-Psak, Shevat 5765, 19-22,42 at n. 86 in the name of Hiddushei ha-Ramban, Sanhedrin 32a;Teshuvot ha-Rashba 2:104 cited approvingly by Beit Yosef, Tur HM 13(end)[ Cf. Teshuvot ha-Rashba 1:153]; Knesset ha-Gedolah HM 16; Tumim 25, Kitzur Takfo Kohen 123; Get Pashut, Kelalim, kelal 1,5; Teshuvot Maharlbah 147; Teshuvot Maharit HM 79 in the name of Mahari Beirav; Sdei Hemed, Ma’arekhet 10, chapter 32 in the name of Rashba, Maharik, Maharshakh and Penei Moshe; Teshuvot Mishpatim Yesharim 1:238; Teshuvot She’eilat Dovid, Introduction, 12-18; Hazon Ish, Orlah 17, Kelayim 1; Sheve’it 23; R. Chayes, Mishpat ha-Hora’ah, 4-5 in the name of Ramban; Teshuvot Kohav me-Ya’akov 1:41. For additional authorities who espouse this view, see Teshuvot Yabia Omer, vol. 2, OH 12(3).
In fact, in light of Beit Yosef’s unwillingness to endorse the rule of majority rule regarding intergenerational halakhic controversy it is no surprise that in his own halakhic works, following the majority of Poskim plays no rule in rendering a psak. Rabbi Yosef Caro’s methodology of halakhic decision making is based upon Alfasi, Rambam and Rosh. In the event that one of the three authorities did not address the matter and the other two are in disagreement, Rabbi Karo follows the majority opinion which includes Ramban, Rashba, Ran, Mordekhai and Semag. See Beit Yosef, Tur OH, Introduction. In effect, Rabbi Karo chooses a technical formula of decision making based upon a preselected group of authorities rather than following majority rule of all authorities who addressed a matter or an assessment of the argumentation of the merits of each issue.
As noted by R. O. Yosef, op. cit. the basis for invoking a minority position is grounded in the Talmudic decision making rule that in matters of aveilut, mourning and eruvin, one follows the minority view rather than the majority opinion. The implicit assumption being that there was no face to face halakhic debate regarding the issue. See Mo’eid Katan 20a and Eruvin 46a. R. Moshe ben Shlomo Ibn Haviv adduces additional Talmudic proofs which corroborate this position. See Get Pashut, op. cit.
Since the question of whether Poskim endorse the minority view of Ritva is a resolution which takes place among authorities who live in different places and in different times rather than within the confines of a beit din, in accordance with the aforementioned authorities, the directive to follow majority rule is inapplicable. In fact, contends R. Chayes, op. cit. that Shakh, infra n. 23 who stakes out the position that one is proscribed from reliance upon a minority view in a biblical matter forgot that the majority rule principle is inapplicable regarding intergenerational halakhic controversies. See Mishpat ha-Hora’ah, op. cit, 380.
In the situation of an elderly woman who is not desperate to remarry, there is no need to act leniently and rely on a minority opinion, in particular where we are hoping that other witnesses will appear soon so that he may remarry . . . Who can be sure that this is an . . . hour of emergency, since possibly this leniency exists only when the young woman is predisposed to licentiousness, . . . but if we know that she is a virgin and moral . . . she is unlikely of this (and marry another man which is against Halakhah –AYW), it is conceivable to say that this is not viewed as “as hour of emergency” and why should we endorse this view and . . . be the subject of admonishment?
Dealing with the matter of igun (get recalcitrance) and the fear of promiscuity involves a sha’at ha’d’hak, an hour of emergency22See also Teshuvot Meishiv Davar 4:64; Teshuvot Zekhan Aharon 124;Teshuvot Agudat Ezov Midbari, EH 9:2; Rabbi Sternfeld, Teshuvot Sha’arei Tzion, vol. 3, 14:21–22. we may invoke those authorities who rely upon a minority opinion in a biblical matter dealing with uprooting the issur of eishit eish, the prohibition of a married woman such as our situation of voiding the marriage of a modern-day agunah by invalidating witnesses to the act of kiddushin.23R. Reischer is not a lone voice that permits reliance upon a minority opinion in an emergency situation of igun which entails a rabbinic matter. See Teshuvot Re’eim 54; Teshuvot Masat Binyamin 44; Teshuvot ha-Mabit 181; Teshuvot Tuv Ta’am ve-Da’at, Tlita’a 172; Teshuvot Hayyim ve-Shalom 2:35; Teshuvot Yabia Omer, vol. 9, EH 236(10); Teshuvot Seridei Eish 3:25.
In fact, there are Poskim who will rely upon a minority opinion in a d’rabbanan, a matter of Rabbinic law (e.g. the case of a classical agunah “in endless waters”) such as Teshuvot ha-Rashbash 513 in the name of Tashbetz and Ran; Darkhei Moshe, Tur EH 127:3 in the name of Radakh; Rema, SA HM 25:2;Teshuvot Re’im 67;Helkat Mehokeik, SA EH 17:31; Pithei Teshuvah SA EH 159:7; Shakh, SA YD 242, Pilpul be-Hanhagot Hora’ot Issur ve-Heter, Get Pashut, Kelalim 6; Teshuvot Rabbi Akiva Eiger, Mahadura Kama 122; Teshuvot Ginat Veradim EH 3:20;Teshuvot Binyan Olam OH 14, YD 50; Arukh ha-Shulhan YD 110:111; Hazon Ish YD 150 (3-4), EH 31:12; Teshuvot Heikhal Yitzhak EH 1:17, 2:76; and Iggerot Moshe OH 1:51(1), EH 4, 83(1).
Nevertheless, based upon various Talmudic precedents, there are authorities who will rely upon a minority view in a d’oraita, a biblical matter such as the prohibition of being a married woman (e.g. our situation of voiding the marriage of a modern-day agunah by invalidating witnesses attesting to the act of kiddushin) See Ohr Zarua, 2, Sukkah, siman 306; Teshuvot ha-Rashba 1:253 (as understood by Teshuvot ha-Rashbash 513); Bah, YD, Kuntres Aharon, Psak be-Hanhagot Hora’ah ve-Issur ve-Heter; Teshuvot Mayim Amukim 2:5 in the name of Rabbi Eliyahu Mizrachi; Teshuvot Tumat Yesharim 209 in the name of Mahara Yerushalmi; Teshuvot Maharam Alshakar 26 (end); Get Pashut, Kelalim 6; Taz SA YD 293:4, EH 17:15; R. Zweig, Teshuvot Ohel Moshe, Mahadura Tinyana 123:2; Teshuvot Seridei Esh 3:25; A. Lichtenstein, “The Human and Social Factor in Halakhah,” 36 Tradition, 2002, 1, 11, n. 30.
Lest one argue that the majority position rejects the possibility of reliance upon a minority view in a biblical matter, however as we have explained supra n. 21, the rule of following the rov, the majority is inapplicable according to many decisors.
Therefore, if following the majority view is inapplicable to Torah matters due to the fact that there is no face to face debate amongst the Poskim, so from a biblical standpoint there exists a safek, a doubt what the Halakhah ought to be and it is because of a rabbinic enactment that we endorse the majority view even in matters dealing with Biblical prohibitions such as the biblical issur of eishit ish, which looms in some of the fact situations dealing with the modern-day agunah. Safek d’oraita le-humra me-derabbanan, rabbinically we endorse the majority view in biblical matters.
For the grounds for adopting Rambam’s and Ra’avad’s position that in a matter of doubt of a biblical matter we follow the strict view on a rabbinic level, see the numerous teshuvot of R. Yosef which are cited in Teshuvot Yehaveh Da’at 1, Kelalei ha-Hora’ah, kelalei safek d’oraita, siman 1, note 2. See also infra. text accompanying note 44.
Based upon the foregoing, subscribing to the view that one may rely upon a shitat yahid, a minority view regarding a biblical matter may be more readily understandable and acceptable towards arriving at a halakhic decision involving modern-day igun. In particular, given that in our case we are dealing with a serious domestic tragedy, with a young woman who as yet had no children and given her traditional lifestyle (rather than Orthodox) we have a fear that she may become licentious. Moreover, it is a sha’at ha-dehak in order to prevent the possibility of mamzerut should she remarry without rabbinic approval.24In contrast to R. Reischer’s view, R. Moshe Taubes and R. O. Yosef argue that concerns for licentiousness equally apply to an elderly woman. See Hayyim ve-Shalom, supra n. 23 Teshuvot Yabia Omer, vol. 7, EH 17 (8), 19(7). Furthermore, this concern for potential promiscuity equally applies to a Torah-observant woman. See Teshuvot ha-Mabit 1:187; Teshuvot Hatam Sofer, EH 1:10. Consequently, despite the fact that the majority of Poskim reject the Ritva’s position,25Teshuvot Avir Ya’akov 24; R. Amarilio, Teshuvot Kerem Shlomo 21. Cf. Tzitz Eliezer, supra n. 18. The question is whether one can ever assume that one has identified the entire spectrum of views and determined a particular opinion is representative of the majority. See Teshuvot She’eilat Ya’avetz 157. Secondly, does the principle of abiding by majority rule apply only within the confines of beit din deliberation or is it equally operative in resolving varying views emerging at different times and in various geographical locations? Is rov (majority) reflective of rov minyan (a numerical majority) or does it refer only to the majority of arbiters of rov hokhmah (a majority of equal rabbinic stature)? Can a cogent minority opinion trump a majority view? Though all these questions are important, the panel was able to resolve the pending matter without addressing these issues. one of the bases of our psak din of bittul kiddushin, voiding the marriage hinges upon the acceptance of his position, albeit a minority one.
In our case, there was an adult Jewish male who was unrelated to the couple who stood under the huppah. Both the ineligible witnesses and the eligible one saw each other under the huppah.26See supra text accompanying n. 20. We were unable to ascertain whether the witness was a Torah-observant Jew at the time of the wedding ceremony or afterwards.27For the retroactive validation of an ineligible witness due to the fact that he became repentant subsequent to the kiddushin, see Teshuvot Zikhron Yehuda 82 in the name of the Scholars of Toledo; Teshuvot Maharik, shoresh 85; SA EH 42:5 cited as “yesh omrim” Even if he was Torah-observant, in accordance with Ritva and others his testimony is invalid as well as the relatives who are invalid on a rabbinic level due to the fact that the eligible witness was not designated as a witness.
Decision
Even though many Poskim contend that there is a mesorah (tradition) that in devar ervah (in matters of sexuality) we must factor into consideration all the strict views,28Rema, SA EH 17:15; Helkat Mehokeik, SA EH 17:31; Bi’ur ha-Gra SA EH 17:61; Mahazit ha-Shekel SA EH 17:56; Teshuvot Kedushat Yom Tov 9 in the name of Rabbi Yom Tov Algazi; Teshuvot Simhat Yom Tov 11 in the name of Rabbi Yom Tov Algazi; Arukh ha-Shulhan, EH 42:2; Teshuvot Sha’arei Rahamim, (Franco) EH 19; Teshuvot Pnei Yitzhak 1:10, 13; J. David Bleich, Contemporary Halakhic Problems, Ktav: NY, 1989, 332. Compare with Maharbil’s view that one must factor only ‘substantial minority’ opinions in matters of gittin and kiddushin. See Teshuvot Maharbil 4:19 cited in Pithei Teshuvah, SA EH 154:30. nevertheless many Poskim contend that in a situation of igun one is to rule leniently.29Teshuvot ha-Rosh 51:2;Teshuvot Zikhron Yehuda 92; Teshuvot Maharik, shoresh 121; Teshuvot Betzalel Ashkenazi 32; Teshuvot ha-Mabit 1:135; Teshuvot Masat Binyamin 109; Teshuvot Zemah Tzedek (Krochmal) 103; Teshuvot Noda be-Yehudah, EH 1:29, 57; Teshuvot Simhat Yom Tov 12; Teshuvot Ginat V’radim 3:20;Teshuvot Hayyim ve-Shalom 2:110; Teshuvot Yabia Omer vol. 7, EH 8(19) As Rabbi Sinai Sapir states,30Teshuvot Minhat Ani 51. To state it differently, in the absence of face to face deliberation concerning an issue, the rule that regarding a Biblical matter one must align with the stringent opinion is inapplicable. In such a situation, one may follow the minority view. See Hiddushei ha-Ramban, Sanhedrin 32a, s.v. ma’tzoti.
In matters such as those involving agunot, it is improper to collect stringencies. . . . In this situation, “the strength of leniency is more powerful”, since we are concerned with halakhot involving lives . . .
Seemingly, following in the aforementioned mesorah that under certain conditions a minority opinion ought to be determinative and release an agunah from her chains, we ought to be able to invalidate the one eligible witness based upon the minority view of Ritva.
However, in light of the fact that some Poskim argue that Ritva’s position may be only utilized as a senif to invalidate a kiddushin—because it is rejected by others or has been demonstrated by others to be a questionable halakhic position—and therefore may be only appended to other halakhic arguments in order to buttress a specific ruling of bittul kiddushin that would invalidate a kiddushin,31Teshuvot Malbushei Yom Tov 2:5; Teshuvot Birkat Kohen 42; Teshuvot Ein Yitzhak, EH 2:64; Maharsham, supra n. 19; Teshuvot Shema Shlomo, vol. 1, EH 6(8), vol. 4, EH 2; Sha’arei Tzion, supra n.19; Tzitz Eliezer, supra n. 18; File no. 92507/1, Be’eir Sheva Regional Beit Din, March 29, 2009. is there any additional ground to invalidate the one eligible witness?
Firstly, the Halakhah is possibly in pursuance to Shulhan Arukh and many Poskim who would invalidate a kiddushin performed in the presence of one witness.32SA, EH 42:2; Otzar ha-Poskim EH 42:2(18) Furthermore, if we accept Rema’s decision and R. Spektor’s ruling that in a situation of an agunah, the kiddushin is invalid when performed in the presence of one witness,33Rema, SA, EH 42:2 we may employ a combination of Shulhan Arukh’s and Rema’s views accompanied by Ritva’s posture for nullifying (bittul) the kiddushin in our scenario.
Finally, since the marriage was performed publicly and the couple lived together for years there is a “kol kiddushin” (loosely translated a rumor of marriage). Lest the community assume that a wife can remarry without the issuance of a get, a get ought to be required. .34Rashi, Gittin 89a, s.v. meimar amrei; Nimukei Yosef, Gittin 89a. Consequently, the kol should trump the fact that there was one invalid eid under the huppah and the couple should therefore be halakhically married.35Yevamot 52a, 94a; Gittin 84a; SA, EH 6:10, 46:1–7. Following in the footsteps of other Poskim, in the wake of pesulei edut (invalid witnesses), we may nullify the kol kiddushin.36Teshuvot Beit Yosef 2; Teshuvot Maharhash 76; Teshuvot Rabbi Akiva Eiger, Mahadura Tinyana, 45, page 19(a). Secondly, even those Poskim who contend that the kol outweighs the formal impropriety of the kiddushin37Teshuvot Maharik, shoresh 87 (110); Teshuvot Maharashdam 33, 120. will agree that in the case of an agunah the marriage may be voided.38Beit Meir, EH 46; Teshuvot Tzemach Tzedek (Lubavitch) EH 1:91(9); Teshuvot Noda be-Yehudah, Mahadura Kama, EH 65; Pithei Teshuvah, SA, EH 43: 2.
Based upon the foregoing, in accordance with Ritva and others who would invalidate an eligible witness, in light of absence of witness designation at the wedding ceremony as well as invoking the positions of Shulhan Aruch (and others) and Rema we may void the act of kiddushin between Baruch Friedman and Aliza Friedman. Therefore, Ms. Friedman is free to remarry without receiving a get.
Final Thoughts
I.
Given that our case deals with uprooting a Biblical prohibition of eishit ish, a married woman based upon the minority opinion of the Ritva, we need to inquire whether in fact Halakhah allows one to rely upon a singular view entailing a Biblical injunction? Given that voiding the marriage of a modern-day agunah under certain conditions may entail a Biblical matter of eishit ish, this question is of reliance upon a minority opinion assumes primary significance.
As we mentioned earlier, there are Poskim who will only rely upon a minority opinion in a d’rabbanan, a matter of Rabbinic law (e.g. the case of a classical agunah “in endless waters”).39See supra n. 23. In fact, as presented though R. Haviv of the latter half of the seventeenth century marshals numerous proofs from the Talmud and Poskim that one may rely upon a minority opinion in a biblical matter, nonetheless, he concludes that Poskim ha-Achronim, later decisors who live in recent generations who are “orphans of orphans” are reluctant to render any judgment, much less one that will uproot a biblical prohibition. Consequently, R. Haviv aligns himself with their approach and refuses to invoke a minority opinion in dealing with a biblical matter.40Get Pashut, Kelal 6.
Nonetheless, based upon various Talmudic precedents, as we presented earlier, there are authorities who will rely upon a minority view in a d’oraita, a biblical matter such as the prohibition of being a married woman (e.g. our situation of voiding the marriage of a modern-day agunah by invalidating witnesses attesting to the act of kiddushin).41See supra n. 23.
If in fact, the majority of aharonim, later authorities endorse the position that a minority opinion cannot be invoked in a biblical matter,42Sdei Hemed, Ma’arkehet kaf, siman 109, page 207. then seemingly one must refrain from subscribing to the minority view of authorities who rely upon a minority view in a biblical matter? However, as we explained if following the majority view is inapplicable to Torah matters due to the fact that there is no face to face debate amongst the Poskim 43See supra n. 21.so from a biblical standpoint there exists a safek, a doubt what the Halakhah ought to be and it is due to a rabbinic enactment that we endorse the majority view even in matters dealing with Biblical prohibitions such as the biblical issur of eishit ish, which looms in some of the fact situations dealing with the modern-day agunah. Safek d’oraita le-humra me-derabbanan, rabbinically we rule strictly in biblical matters.44According to Mishnah Torah, Hilkhot Tumat ha-Met 9:15; Ra’avad, MT, Hilkhot Kelayim 10:27), Pri Hadash, YD 110, Sefek Sefeka, Seridei Esh, supra n. 23 and R. Kook, Shabbat ha-Aretz, chapter 10 contend that in a matter of doubt of a biblical matter we follow the strict view on a rabbinic level. For additional teshuvot of Aharonim (later authorities) see Teshuvot Yabia Omer, vol. 1, OH 19:7, 21:1; vol. 4, YD 16:3 and Teshuvot Dibrot Eliyahu, vol. 3, OH 1. In fact, as noted by R. Yosef (Teshuvot Yabia Omer, vol. 1, OH 36(10)) there are many Poskim who subscribe to Rambam’s view in situations of dealing with issurim, prohibitions. See Maharit Algazi, Hilkhot Yom Tov; Behorot 3; Teshuvot Havot Da’at 110, kelalei sefek sefeka; Teshuvot Keren le-Dovid 114; Teshuvot Tarshish Shoham 28; Teshuvot Oneg Yom Tov 71. As such, as we mentioned many Poskim argue that we may rely upon a minority opinion in a matter of rabbinic law.
Based upon the foregoing, subscribing to the view that one may rely upon Ritva as a shitat yahid, a minority view regarding a biblical matter may be more readily understandable and acceptable towards arriving at a halakhic decision involving a modern day agunah for one of two reasons: Either we may rely upon upon a minority opinion in a biblical matter such as the situation of a modern-day agunah. Alternatively, in light of the inapplicability of following the majority in intergenerational halakhic controversies and in view of invoking the rule of safek d’oraita le-humra me-derabbanan, as we explained earlier, we are in actuality dealing with a rabbinic matter and consequently we may rely upon a minority opinion which would void a marriage of a modern- day agunah.
Finally, relying upon this minority view of Ritva is premised upon demonstrating that there does not exist a normative halakhic resolution that rejected Ritva’s posture. The entitlement of an authority to invoke a minority position is predicated upon the fact that the Halakhah has not been established in variance to that posture, in Talmudic parlance it is known as “lo itmar hilkhita”. 45Eruvin 46a; Niddah 9b. That being said, if the Halakhah has been formally resolved, “itmar hilkhita”, a decisor is precluded from relying upon the minority opinion.
Itmar hilkhita has been understood within the context of three different literary sources of the corpus of Halakhah. Firstly, should the Talmud have ruled explicitly in favor of a majority view, one cannot invoke a minority view.46Ohr Zarua 2:306; Ravyah, Lulav 697; Teshuvot Meishiv Davar 4:80. Since the Talmud has not endorsed the majority view, in our situation, therefore a Posek may rely upon the minority view of Ritva if there is “a she’at ha-dehak”. Similarly, if Shulhan Arukh, the classical restatement of Halakhah and many Poskim have staked out a position against the minority position, one may invoke a minority position in a she’at ha-dehak even in a matter entailing a Biblical injunction.47Teshuvot Hakham Tzvi 11, 100; O. Yosef, Kuntres be-Inyan Heter Mehirat Karkaot be-Shevi’it, Minhat Aharon, Yerushalayim 5750. In our case, though SA HM 36:1 as well as many authorities reject Ritva’s view, in accordance to the above cited authorities one may still rely upon the minority view.48Cf. Hazon Ish YD 150:3-4; Iggerot Moshe EH 4:83, Anaf 1. The basic premise of the foregoing presentation is that we are dealing with a shitat yahid, a minority view attributed to Ritva.49See supra n. 18
The question is a shitat yahid a singular opinion of an authority or may it reflect the view of a few decisors who are in variance with the majority of Poskim? In other words, if the latter position is advanced, the result would be that if there exists a singular opinion one may not rely upon the minority view. A cursory glance of the Mishnaic and Talmudic sources would indicate that we are dealing with a view of “a lone ranger” rather than “a me’ut ha-Poskim”, a minority of authorities.50Mishnah Eduyot 1:5-6; Tosefta Eduyot 1:4; Eruvin, supra n. 45.; Niddah 6a, 9b Consequently, R. Schneersohn51Teshuvot Tzemach Tzedek 218. and R. Yosef52Kuntres be-Inyan Heter Mekhirah, supra n. 47. conclude that even those decisors who will not rely upon a minority opinion concerning a Biblical matter in a state of emergency will invoke the view if it is supported by a minority of decisors.53Kuntres be-Inyan Heter Mekhirah, supra n. 47. Consequently, given that Ritva’s view has been subscribed to by a few others,54See supra n. 18. therefore we can rule in pursuance to their view in our case dealing with a Biblical injunction of eishit ish.55Cf. others who contend that Ritva’s view may be only utilized as a senif, supporting argument in arriving at a decision. See Teshuvot Ein Yitzhak EH 2:64; Teshuvot Malbushei Yom Tov 2:5; Teshuvot Maharsham 2:111, 3:50(20); supra n. 19.
Alternatively, given that there are some authorities who claim that the halakhic rule that when there exists a state of emergency one may rely upon a minority view which encompasses me’ut ha-Poskim, i.e. a minority of authorities rather than a singular opinion,56Teshuvot Maharit YD 33; Get Pashut, supra n. 40; Teshuvot Maharbil 1:75, 3:102,111; Teshuvot Yabia Omer, vol. 7, EH 17:8, vol. 8, EH 12(13). therefore as we explained there are grounds to invoke Ritva’s view who was endorsed by other decisors in a situation of a Biblical proscription such as the modern day agunah. Finally, we may rely upon Ritva’s opinion in a biblical matter due to the fact that there are a minority of decisors who subscribe to his position.
In sum, we may rely upon Ritva’s posture for one of three reasons: Either we may rely upon upon a minority opinion concerning a biblical prohibition such as the freeing a modern-day agunah without a get without contravening the Biblical prohibition of eishit ish. Alternatively, in light of the inapplicability of following the majority in intergenerational halakhic controversies and in view of invoking the rule of safek d’oraita le-humra me-derabbanan, we are in actuality dealing with a rabbinic matter and consequently we may rely upon a minority opinion which would void a marriage of a modern- day agunah. Finally, we may rely upon Ritva’s position in a biblical matter due to the fact that there are a minority of Poskim who agree with his view.
II.
A review of many teshuvot and the few piskei din of the rabbinical courts under the Israeli Chief Rabbinate that mandate bittul kiddushin (voiding a marriage), one encounters that the issuance of the piskei din is contingent upon third party rabbinic approval. A plausible explanation for desiring rabbinic approval is the following: The kiddushin (betrothal) relationship establishes a personal status, namely, that of a mekudeshet (a woman designated for a particular man and prohibited to all others).57Kiddushin 2b The establishment of this personal status known as ishut renders both spouses subject to various prohibitions, e.g. sexual relations with various relatives become prohibited. On one hand, a refusal to invoke bittul kiddushin means that the issur continues to exist; on the other hand, the implementation of bittul means that the issur no longer exists and the wife, in the case of an agunah, is permitted to remarry without the issuance of a get. Prohibiting bittul kiddushin in part is due to the lurking fear that the woman is an eishit ish and therefore should we permit her to remarry she would be living in sin and should she bear children her offspring will be mamzerim. As such, given the concern that the wife has a hezkat eishit ish (is presumptively married), a beit din may seek the approval of other(s) prior to rendering a decision to void a marriage.
The emerging question is whether the seeking of outside rabbinic approval is a nohag (a practice) devoid of any halakhic significance or if it is to be viewed as a halakhic norm, which requires an arbiter to seek approval. If the answer to our question is that it is to be understood as a halakhic obligation devolving upon the arbiter that means every arbiter, regardless of his rabbinic stature, is mandated to find rabbinic endorsement. Moreover, given the paramount concern to avoid undermining the presumption that the wife is a married woman, one would expect that a beit din would look for “a second opinion” in other areas of ishut (family relations) that impact upon the hazakah of eishit ish.
But in fact this is not the case. For example, there exists certain grounds for a Jewish divorce known in modern Hebrew parlance as “ilot gerushin”, which may serve as a basis for beit din to coerce a husband to give a get to his wife. As we know, the get must be executed with the consent of both the husband and wife. Should a beit din fail to have an adequate basis for coercing a husband to give a get, the net result is a “get meuseh” (a coerced get), which is null and void according to the majority of Poskim and she remains a married woman until a proper get is executed.58Rashi, Gittin 88b, s.v. mifsal; Rashbam Bava Batra 48a, s.v. ve-khain; Tosafot, Ketuvot 70a, s.v. yotzi; Teshuvot ha-Rosh 43:6; Hiddushei ha-Ramban, Ketuvot 77a; Hiddushei ha-Ran, Gittin 49a, s.v get me’useh; Teshuvot ha-Rivash 104; Teshuvot ha-Rashba 1:573,2:276; Meiri, Beit ha-Behirah, Gittin 88b; Teshuvot ha-Rashbash 339 in the name of Rashi; Maggid Mishneh, MT, Hilkhot Ishut 14:8; Teshuvot Maharshal 41; Yam shel Shlomo Yevamot 12:33; Helkat Mehokeik SA, EH 77:5; Tur, EH 134; SA, EH 134:7; Rema, SA, HM 205:7; Teshuvot ha-Mabit 2:138; Teshuvot Maharik, shoresh 63; Beit Shmuel SA EH 134: 10, 13; Teshuvot Maharitz 1:40; Teshuvot Mahari bei Rav 41;Gevurat Anashim 38, 48; Meshoveiv Netivot 3; Teshuvot Maharival 2:77; Mikhtav mei-Eliyahu, Sha’ar 7, 19; Teshuvot R. Bezalel Ashkenazi 15; Pithei Teshuvah, SA, EH 134:10; Teshuvot Beit Ephraim, Mahadura Tinyana 73; Mishkenot Ya’akov, EH 38; Teshuvot Masat Moshe, EH 17; Teshuvot Hatam Sofer, EH 116; Teshuvot Birkat Yosef, EH 83; Teshuvot Kol Eliyahu (Yisrael), EH 22; Teshuvot Be’eir Yitzhak, EH 10:7; Hazon Ish, EH 99:1; Teshuvot va-Ya’an Dovid (Weiss), 2:202. Moreover, there are Poskim who rule strictly in accordance with a minority view and authorized get coercion only in the cases mentioned in the Mishnah and the Talmud.59Tosafot, Yevamot 64a, s.v. yotzi; Piskei ha-Rosh, Yevamot 6:11; Teshuvot ha-Rosh 43(3); SA, EH 154:5; Gevurat Anashim 45; Get Pashut, Kelal 5(end). Adopting this approach, should a posek or beit din coerce a husband to give a get in a particular fact pattern which fails to correspond to one of the cases mentioned in the Mishnah and Talmud, the subsequent execution of a get would run afoul of the strictures of a get me’useh and the wife would still be viewed as a married woman. Despite the potential severity of issuing a decision to coerce a get that may result in a woman living in sin and proliferating mamzerut in the Jewish community, notwithstanding some authorities,60Teshuvot Maharit 1:113; Teshuvot Sha’ar Asher 1:45; Teshuvot Mohr ve-Oholot EH 10; Teshuvot Tzitz Eliezer, 6:42(1). Interestingly enough, in two other rulings memorialized in the same siman, Tzitz Eliezer refrained from requesting approval. See Tzitz Eliezer, 6:42(3) and (4). many Poskim61Possibly the majority of Poskim do not mandate “a second opinion”. throughout the ages render get compulsion orders without seeking a rabbinic endorsement!62Teshuvot Ohr Zarua 761; Teshuvot ha-Rosh 42:2, 43:5; Teshuvot Tashbetz 2:8,68; Teshuvot ha-Rashba ha-Meyuhasot le-Ramban 141; Teshuvot ha-Rashba 1:693; Teshuvot Maharam of Rothenberg, Cremona ed., 77 (in the name of Ra’avyah); Darkhei Moshe, Tur, EH 154:3; Teshuvot Maharashdam, EH 12; Teshuvot ha-Mabit 3:212; Teshuvot R. Bezalel Ashkenazi 6(21b-22); Rabbi ha-Levi, Teshuvot Zekan Aharon 172; Teshuvot Hayyim ve-Shalom 2:35; Teshuvot Avnei Nezer, EH 176:7; PDR 1: 33, 38, 364, 370; 3:3, 18, 220, 224, 369, 374, 4:164, 173; 9:171, 184. Given the fact that the ramifications of R. Moshe Sofer’s and R. Yosef Elyashiv’s positions in the overwhelming majority of divorce cases precluded the possibility of coercing a get,63Teshuvot Hatam Sofer, EH 2:116 as understood by Teshuvot Ein Yitzhak 2:35; Teshuvot Heikhal Yitzhak, EH 1:2 and Teshuvot Dvar Yehoshua 3:30. For some of R. Elyashiv’s rulings concerning this matter, see Kovetz Teshuvot 1:132, 178, 180, 2:83, 107, 122; Teshuvot Tzitz Eliezer 5:26 (letter of R. Elyashiv). See supra chapter 1. in light of the seminal influence of these two authorities’ judgments, it is a wonder that various Poskim and Israeli dayanim issued a get compulsion order without receiving prior rabbinic endorsement!64Teshuvot Ein Yitzhak, EH 2: 35(34); Teshuvot Heikhal Yitzhak, EH 1:3; Teshuvot Yabia Omer, vol. 3, EH 18–20; Teshuvot Shemesh u-Magen, vol. 1, EH 6; Teshuvot Sha’arei Tzion 3:36.
Though R. Waldenburg wanted the battei din under the Chief Rabbinate to agree to institute his proposal to coerce a get upon a recalcitrant husband, nonetheless, he refrains from enlisting support from other authorities prior to advancing his proposal. See Teshuvot Tzitz Eliezer 4:21, 5:26. Moreover, in light of those authorities who adopt the position memorialized in Teshuvot ha-Radvaz 1228, Teshuvot Zemah Tzedek, EH 226 and dating back to the time of the Rishonim that a compulsion order entails the giving of a get via hafka’at kiddushin (annulling the kiddushin) one is surprised that there is no mention of the requirement of “a second opinion”. In fact, the focus of discussion amongst the international halakhic experts on get coercion centers upon whether one requires a beit din or not.65See T. Gartner, Kefiyah be-Get, 5769; Y. Goldberg, Elu she-Kofin le-Hotzi, 5773. Absent from the limmud (the study) is whether there exists a requirement for a posek (Poskim) to seek rabbinic endorsement. There is no such discussion because there is no such halakhic requirement! As recently as six years ago, Dayanim Sheinfeld, Abergil, and Toledano handed down a ruling to coerce a get due to the fact that the husband had been obligated to give a get and continued to be me’agein his wife. Here again, there was no mention of the need for “a second opinion”.66Jerusalem Regional Beit Din, 20 Av 5770.
Another example is the propriety of dissolving a civil marriage between two Jews without the issuance of a get. Though in pursuance to the majority of authorities a get is required only if a Jewish couple married halakhically (“kedat Moshe ve-Yisrael”) and consequently there ought to be no requirement for the issuance of a get if the couple married only civilly,67Teshuvot ha-Rivash 6; Teshuvot Terumat ha-Deshen 209; Teshuvot ha-Radvaz 1:351; SA, EH 149:5; Rema, SA, EH 26:1; Teshuvot Helkat Ya’akov 2:184 (end); Teshuvot Beit Ephraim, EH 42 (end) in the name of Sha’agat Aryeh; Teshuvot Mishpetei Uziel, vol. 2, EH 54; Teshuvot Tzitz Eliezer 2:19. there are various Poskim who claim for various reasons that one requires minimally a get mi-safek (due to doubt).68Teshuvot Ma’arkhei Lev 87; Levush Mordekhai 2:40; Teshuvot Minhat Yehiel 3:60; Teshuvot Tzofnat Pa’aneiah, 1:26–27; Teshuvot Yehaveh Da’at 18; Perushei Ibra, 4–5; Teshuvot Bikurei Yehudah 3 Here again, we have a question regarding her status as “an eishit ish” and yet in contemporary times there are many Israeli rabbinical court decisions where a get is not mandated in a civil marriage and yet there is no mention that outside rabbinical support must be sought prior to rendering a decision.69File no. 293122/1, Netanya Regional Beit Din, October 21, 2010; File no. 861704/2, Tel Aviv-Yaffo Regional Beit Din, June 17, 2012; File no. 891549/1, Beit Din ha-Rabbani ha-Gadol, March 5, 2013; File no. 86586/3, Be’eir Sheva Regional Beit Din, October 7, 2014; File no. 1010027/1, Netanya Regional Beit Din, March 19, 2015; Ashkelon Regional Beit Din, July 15, 2015.
Given that prior to rendering get compulsion orders and the dissolution of civil marriage ties without a get there is no requirement for seeking rabbinic endorsement, why do many authorities void a marriage based upon a halakhic impropriety in the kiddushin only provided there is rabbinic approval? It would seem the genesis of this practice of seeking rabbinic endorsement began with the Poskim who freed the classical agunah where the husband has disappeared and his whereabouts are unknown. For centuries, Poskim enlist the support of an outside rabbi(s) prior to assisting a classical agunah.70Teshuvot ha-Rivash 377; Teshuvot ha-Mabit 1:186–189; Teshuvot Maharam of Lublin 110; Teshuvot Bah 79; R. Pozen, Teshuvot Hemdat Shlomo, EH 33; R. Menahem Krochmal, Teshuvot Tzemach Tzedek 103, 106.
Addressing the case of the classical agunah, we encounter a diametrically opposed position in the words of R. M. Tenenbaum. In concluding a lengthy teshuvah, he states, “Since it is a very strict matter I therefore will not establish a ruling to be followed, until I learn this matter an additional time.” See Teshuvot Divrei Malkiel 4:100. Given that this practice was implemented when dealing with the classical agunah,71R. Michal Epstein labels it a “nohag” amongst Torah scholars. See Arukh ha-Shulhan EH 17:255. the practice emerged upon addressing the plight of the modern-day agunah.
But here again concerning voiding a marriage of a modern-day agunah, it is a nohag (a practice) devoid of a halakhic basis rather than a halakhic norm that obligates the receipt of support under all circumstances.72Some contend that with the disappearance of the Beit Din ha-Gadol, namely the Sanhedrin sitting on the Temple Mount in Yerushalayim, the rulings of the gedolei ha-dor (the scholars of the generation) were to be heeded by all the Jewish communities in the Gola, (Diaspora) and in Eretz Yisrael. See Minhat Hinukh, Mitzva 495(3) in the name of Sefer ha-Hinukh; Derashot ha-Ran, Derashah 12; R. E. Wasserman, Kuntres Divrei Soferim, vol. 2, 2–3 in name of Rambam. Compliance with their judgments equally required that halakhic arbiters were to consult them prior to rendering their own decisions and/or legislation in matters of personal status and conversion due to the fact that such decisions had implications for the entire Jewish community. See Teshuvot Even Shoham EH 56 in the name of R. Hayyim Berlin; Teshuvot Devar Avraham 3:29; Maharsham and R. Hayyim Ozer as cited respectively in Ein Tenai be-Nissuin, 22, 56; A. Sherman, “The Authority of Gedolei ha-Dor in Matters of Personal Status,” (Hebrew), 30 Tehumin 163 (5770); A. Sherman, Mishnat Yosef, Tevet 5776, 209–210. Consequently, an arbiter’s failure to seek out the view of the gedolei ha-dor regarding a pending matter of personal status entails a halakhic infraction.
Finally, in a situation where there is a halakhic dispute whether the employment of a particular umdana will free a wife, who is a classical agunah, prior to rendering a decision all the Torah authorities must convene to deliberate regarding the matter and only once a consensus is reached or the majority agree to invoke the umdana may one free the agunah. See Teshuvot Beit Yosef 1.
However, in contradistinction to the above ruling of Rabbi Yosef Karo a review of the rulings which will free a modern day agunah based solely upon an umdana or in conjunction with other supporting arguments such as kiddushei ta’ut either memorialize the practice to have only a second opinion (sometimes a third view) or do not require any rabbinical approval of a third arbiter prior to issuing a decision. See Teshuvot Maharam of Rothenburg, Prague edition, 1022; Teshuvot Avnei Hefetz 30; Teshuvot She’eilot Moshe, EH 2; Teshuvot Maharsham 7:95(deals with a mentally dysfunctional wife); Teshuvot Har Tzvi EH 2:133; Iggerot Moshe EH 4:121.
Our brief review has shown that many arbiters either refrain from consulting gedolei ha-dor in matters of personal status prior to issuing a ruling or if there was consultation, the endorsement was given by rabbis who do not necessarily have the stature of a gadol ha-dor. See Teshuvot Beit Yosef, EH 1; Rivash, supra n. 70; Teshuvot ha-Mabit 1:187. Teshuvot Maharsham 3:16; . . . 79; Teshuvot Seridei Esh 1:90; Teshuvot Meishiv Davar 2:76; Teshuvot Radakh, Bayit 9. Cf. Teshuvot Maharam Schick 79.
Nonetheless, there are some authorities who mandated the seeking of “a second opinion” of “ba’alei horo’ah”, credentialed authorities rather than scholars of the generation. See Teshuvot Knesset Yehezkel EH 70; Pithei Teshuvah, SA EH 129:21; Sedei Hemed, Kelalei ha-Poskim 16(47) in the name of other decisors.
Interestingly, in the light of the long standing practice for Torah scholars to seek approval prior to handing down their rulings in matters of igun, R. Epstein arrives at the conclusion that there is a halakhic duty upon a rabbi (rather than a beit din of three) to rely upon outside rabbinic approval. See Arukh ha-Shulhan, supra n. 71. See also, Arukh ha-Shulhan EH 17:118; Rivash, supra n. 70.
For those Poskim who refrain from seeking approval, implicit in their position is that under certain conditions a halakhic arbiter is empowered to issue a ruling that may be in variance with a ruling handed down by any of his predecessors and by inference even a gadol ha-dor. See Piskei ha-Rosh, Sanhedrin 4:6; Teshuvot R. Yeshaiah ha-Rishon 62; Teshuvot Hut ha-Meshullash 9; Hazon Ish, HM, Likkutim 1; S. Daichovsky, Teshuvot Lev Shomeiah le-Shlomo 2:37; Rabbinic Authority, vol. 1, 44–53. Therefore, it is of no surprise to encounter that there were some authorities who issued rulings regarding the propriety of a particular kiddushin without having outside rabbinic endorsement.73Rabbi Felder, Nahalat Tzvi, 231–239 (sought approval of his colleagues serving on his beit din but R. Felder did not seek a third party’s consent); R. Mordekhai Eliyahu, Teshuvot Ma’amar Mordekhai 2:5; File no. 373701/10, Tel Aviv-Yaffo Regional Beit Din, March 12, 2012.
Generally speaking, R. Yehezkel Landau did not mandate that his rulings are to be contingent upon receiving the approval of “a second opinion”. However, in extenuating circumstances such as a panel of dayanim who is inexperienced in resolving matters of ishut, personal status, he required approval of “gedolim of his generation” (Teshuvot Noda be-Yehudah, Mahadura Kama EH 27), “ a scholar of the generation from the community of Barth” (Teshuvot Noda be-Yehudah, Mahadura Kama EH 33), “two rabbis who are mu’flagei Torah, distinguished in Torah” (Teshuvot Noda be-Yehudah, Mahadura Tinyana, EH 113), or “his father-in law and the mesadeir, the rabbi who officiates at the wedding” (Teshuvot Noda be-Yehudah, Mahadura Tinyana EH 129). Clearly, in Rabbi Landau’s mind, seeking rabbinical approval for his decisions was discretionary both in terms of the circumstances which generated the need for such approval and depending upon the case identifying rabbis of differing positions and levels of Torah scholarship who ought to concur with his specific rulings. Given that this was a nohag, it is unsurprising that sometimes Rabbis O. Yosef, S. Messas, and S. Amar seek outside halakhic approval and sometimes they refrain from getting approval.74Teshuvot Yabia Omer, vol. 6, EH 10; Teshuvot Tevuot Shemesh, EH 13; Teshuvot Shema Shlomo, vol. 1 EH 6.
In sum, concerning matters of eishit ish, notwithstanding some authorities,75See supra n. 72. according to most Poskim it remains a practice rather than a halakhic duty to enlist the support of an outside rabbinic authority (ies).
On the other hand, in situations when dealing with scenarios that entail arriving at a decision based upon engaging in “medameh milta le-milta” (reasoning by analogy),76See this writer’s, Rabbinic Authority, vol. 1, 53–57 there is a clear mandate from the Talmud and classical sifrei psak (restatements) that under certain circumstances a dayan must seek halakhic counsel prior to handing down a decision.77Yevamot 109b; MT, Hilkhot Sanhedrin 20:8; Sma, SA, HM 10:4 in the name of Tur; Ketzot ha-Hoshen, HM 10:3; SA, HM 10:2. Cf. others who view the seeking of “a second opinion” as wise counsel rather than a duty. See Beit ha-Behirah, Yevamot 109b; Bah, Tur, HM 10:2 in the name of Tur; Maharsha, Hiddushei Aggadot, Yevamot 109b; Hazon Ish, Kovetz Iggerot 1:31. Such a duty not only devolves upon a dayan who is rendering a decision in monetary matters but equally extends to a dayan who is dealing with issur ve-heter, such as hezkat eishit ish.78Rashi, Kiddushin 6a, s.v. lo yehyeh; Rashi, Hullin 133a, s.v. nezof; Teshuvot Maharshal 35; SA, YD 242:9; Urim ve-Tumim 10:3; Teshuvot Shoeil ve-Nishal, vol. 5, YD 111. Cf. Maharsha, in the name of Tosafot, supra n. 77. Therefore, an arbiter addressing a case of igun that involves “medameh milta le-milta” would be mandated to seek rabbinic consent prior to handing down a decision.79Whether one requires a beit din or a rabbi to address a matter of igun is subject to controversy. See supra Preface, text accompanying n. 2. On the other hand, according to the Talmud and classical sifrei psak, if we are dealing with a beit din panel composed of three dayanim dealing with an igun situation, there would be no such requirement since each dayan in effect will be presenting his reasoning to his colleagues and therefore there is no requirement to look for rabbinic consent prior to issuing their ruling.80However, there is the view of R. Moshe Trani who contends that it is incumbent upon a panel of three dayanim to receive rabbinic approval upon rendering a ruling which entails reasoning by analogy. See Teshuvot ha-Mabit 1:280. Consequently, in pursuance to his view, a beit din which engages in “medameh milta le-milta” for the purpose of voiding a marriage is mandated to seek “a second opinion” prior to rendering its psak.
Addressing a wife’s allegation of kiddushei ta’ut, concludes Dayan Algarbali that this case entails applying “medameh milta le-milta” and the ruling will require the approval of gedolei ha-dor. To state it differently, on one hand, in pursuance to R. Trani’s view prior to rendering a beit din ruling based upon analogical reasoning one is mandated to seek “a second opinion”. On the other hand, following in the footsteps of some Poskim, before handing down a decision in a divorce matter, one must consult gedolei ha-dor. See supra n. 72.
Addressing a wife’s allegation of kiddushei ta’ut, concludes Dayan Algarbli that this is a fact pattern which entails “medameh milta le’milta” and therefore the decision requires the approval of the Torah scholars of the generation. In other words, on one hand, in pursuance to R. Trani’s approach that a beit din engaged in analogical reasoning requires to receive outside approval for their decision. On the other hand, following in the footsteps of in a matter of divorce, one is mandated to seek the consent of gedolei ha-dor. See File no. 1-14—1393, Jerusalem Regional Beit Din, March 5, 2003; see supra n. 72.
Alternatively, according to some Poskim, an arbiter’s inquiry into the works of his predecessors and contemporaries which address the same fact pattern posed to the decisor may be akin to receiving “a second opinion” of a scholar of rabbinic stature.81Teshuvot Maharshal 35 in the name of Maharam; Urim ve-Tumim 10, Urim 3; Teshuvot Yabia Omer, vol. 1, introduction, section 10.