by R. Yaacov Sasson
After publishing an article two weeks ago about the latest Agunah controversy, I would normally let the matter drop. However, with the approval of my editorial committee, I agreed to publish this additional essay because of an anomaly of punctuation. Responsa rarely contain punctuation beyond periods and–occasionally–commas. I recently saw a surprising appearance of punctuation in a responsum of Rav Azriel Hildesheimer (Even Ha-Ezer 31). A student of Rav Hildesheimer, Rabbi Moshe Jacobson (I don’t think this was the Reform leader with the same name), wished to annul a marriage in which the husband had converted to Christianity before the wedding without informing the bride. The man underwent a Jewish wedding, fooling the bride to believe that he considered himself a Jew. The student wrote a responsum on the subject and sent it to Rav Hildesheimer, after speaking with him about it. There seems to be good reason to annul this marriage, as R. Jacobson explains in his responsum. Rav Hildesheimer responded emphatically, “Chalilah! to permit without a get” in that case. He repeated the “Chalilah!” again, using the exclamation point both times. These are not simple matters. Even though the student stated in his responsum that “I will certainly not do anything without the approval of gedolei ha-zeman (leading rabbis of the time),” Rav Hildesheimer still felt a need to respond emphatically. The strongly worded essay that follows was not written by Rav Hildesheimer but rather defends a statement by leading dayanim in the US. -Gil
As the controversy surrounding the International Beit Din (“IBD”) continues to swirl, there is some confusion among the general public regarding the nature of the objections to the IBD. While Batei Din have disagreed from time immemorial, this particular disagreement is qualitatively different, not just a disagreement about conclusions but a disagreement about competence. Leading dayanim have declared the IBD incompetent to decide aguna cases, but their reasons are still unknown to the general public.
Rav Hershel Schachter published a letter encouraging his students and colleagues to not rely on IBD rulings, to which other dayanim across the country added their agreement.1 Specifically, Rav Schachter challenged a particular ruling relying on a well-known opinion of the Ritva. This is a reference to the IBD psak (ruling) on Case 105 (from here on: Psak 105), available in both English and Hebrew on the IBD website.2 The IBD website tells us that “This psak is representative of several decisions handed down by the International Beit Din.” Additionally, Rabbis Simcha Krauss and Yehuda Warburg of the IBD have written with regard to Psak 105 that “This psak din as well as other IBD decisions are available for public scrutiny on our website.”3 As such, it seems appropriate to subject Psak 105 to the examination which Rabbis Krauss and Warburg have invited. I strongly encourage any reader not to take my word, but to read the English and Hebrew versions of Psak 105 in conjunction with this review. This review will assume that the reader is generally familiar with the contents of Psak 105, including the background and final decision.
First, a disclaimer: I am under no delusion of being a halakhic decisor. I am certainly not qualified to issue a psak in the complex areas of Even Ha-ezer and heter agunot. As such, this review will not engage in detailed analysis of the various halakhic issues involved. The purpose of this review is to identify the crucial halakhic issues that a complete and coherent psak crafted by a qualified and competent Beit Din would necessarily address.
I Fundamental Issues
1 – Designation of Witnesses (Yichud Eidim): Generally speaking, if a group of witnesses contains one invalid witness then the entire testimony is invalid. Any wedding includes family members of the bride and groom, who are invalid to testify about their relatives. How can a wedding ever have valid witnesses? Most authorities rule that only someone who intends to testify is considered a witness and, if invalid, can render the entire group invalid. The Ritva offers a minority opinion that intent is irrelevant. Rather, valid witnesses must be designated (yichud eidim) to exclude those relatives and everyone else who is invalid. Absent such a designation of valid witnesses, Ritva posits that the kiddushin (wedding ceremony) is invalid.
IBD’s Psak 105 heavily relies on this “position of Ritva in the name of his teacher Ra’ah which is cited authoritatively by Tzit (sic) Eliezer” to invalidate the kiddushin. The Psak similarly places heavy reliance on three responsa4 of Rav Tzion Boyaron, a dayan on the Beit Din ha-Gadol of Yerushalayim, who “has ruled on numerous occasions regarding the propriety of acts of kiddushin, in accordance with Ritva’s view.” Rav Boyaron’s three responsa themselves rely heavily on the aforementioned teshuva of Rav Waldenberg in Tzitz Eliezer (8:37).
However, there is a critical distinction between the cases in Tzitz Eliezer and Rav Boyaron’s responsa on the one hand, versus the case in Psak 105. Namely, in all of the cases upon which Psak 105 relies, there was yichud eidim of eidim psulim (invalid witnesses were specifically designated to serve as the witnesses, which excludes the possibility of other witnesses.) It is for this reason that all the psakim cited employ Ritva’s position as an additional consideration (senif), not as the main basis for leniency. (Tzitz Eliezer uses the phrase “al ha-amur yesh lizkor”, loosely translated as “additionally we ought to remember” in reference to Ritva’s position. It is certainly a mere senif, almost an afterthought, and not the main basis for his ruling.)
In contrast, we are told explicitly that in the case of Psak 105, there was no yichud eidim whatsoever. This invites the obvious question of whether Ritva’s position is sufficient to, in practice, invalidate potential witnesses under the chupah, in absence of yichud eidim psulim. It is noteworthy that within a lengthy discussion of yichud eidim in Shaarei Tzion Even Ha-ezer 2:10, Rav Boyaron suggests that he would not be concerned with the valid witnesses even in absence of yichud eidim psulim. However, as noted, the case in question was in fact one of yichud eidim psulim. It would therefore remain a significant subject for discussion whether such a statement within a teshuva would constitute sufficient precedent for other dayanim to rely on, given that Rav Boyaron himself did not rely on this in practice, as well as the highly controversial nature of such a ruling, the gravity of the issue under discussion, and the emphasis that Psak 105 places on following precedent. Furthermore, it is highly questionable whether Rav Waldenberg would have himself relied on this in practice, in absence of yichud eidim psulim. Again, it is not my purpose to present a detailed analysis or a resolution to this question. But that Psak 105 fails to raise this crucial distinction or address this issue at all is absolutely stunning.
2 – Other Witnesses: Psak 105 completely ignores the possibility that onlookers other than those standing under the chupah could serve as valid witnesses. In contrast, both Rav Waldenberg and Rav Boyaron deal with this issue at length (and their analyses rely heavily on the yichud eidim to exclude the possibility of other observers serving as witnesses.) That Psak 105 does not entertain the possibility of other potential witnesses, particularly in light of the fact that there was no yichud eidim, is astonishing.
3 – The 5 Other Reasons: Rabbis Krauss and Warburg have written elsewhere, “However, in careful reading of the entire psak, it becomes clear that the IBD decision also offered five other reasons (in addition to Ritva – YS) in support of its leniency, including the husband’s admission that he is not Jewish.”5 This appears to be a misguided attempt to employ the technique of compiling additional reasons for leniency, senifim and tzdadim lekula, a technique typically employed by poskim to bolster their positions. In order to understand the issue here, we ought to enumerate the 5 other reasons. From the “Decision” section, it appears that the 5 reasons are as follows. 1- We are not concerned with kiddushin performed in the presence of rabbinically invalid witnesses (referring to some of the relatives under the chupah.) 2- Those related by marriage may be invalid witnesses on a biblical level. 3- Shulchan Arukh rules that kiddushin in the presence of one witness is invalid. 4- Rema rules that in the case of an aguna, kiddushin in the presence of one witness is invalid. 5- The husband claims that he is not Jewish.
Additional senifim for leniency, as typically used in teshuva literature, each stand independently as a reason to be lenient. In other words, even if previously stated reasons are incorrect, each senif adds an independent argument that is not predicated on the rejected reasons. The IBD’s 5 other reasons do not meet this criterion. For example, reasons 3 and 4 which relate to kiddushin in the presence of one witness, assume the correctness of Reason 1 and/or Reason 2. In order for the situation to be considered one of “kiddushin in the presence of one witness”, we must necessarily assume that the relatives watching under the chupah are invalid as potential witnesses. By the same token, Reasons 1 and 2 are insufficient to invalidate the kiddushin on their own; they require us to assume Reasons 3 or 4 as well. The first 4 reasons are inter-related and so dependent on each other that by no means can they be considered 4 independent reasons upon which to base a lenient ruling. That Rabbis Krauss and Warburg could claim that there are 5 additional reasons for leniency is, at the very least, misleading, and at worst, betrays a lack of understanding of the halakhic process typically employed in teshuva literature with respect to senifim.
4 – Even when viewed collectively, Reasons 1 through 4 do not constitute sufficient grounds to invalidate the kiddushin. Reasons 1 through 4 require the additional assumption that all potential witnesses in the audience were invalid (which is ignored entirely, see number 2 above), as well as the assumption that the unidentified adult male Jew under the chupah was not a valid witness. The entire discussion of the validity of one witness revolves around the possibility that the officiating rabbi (mesader kiddushin) himself might be the lone witness. To assume that this case was one of kiddushin in the presence of one witness, and to invalidate the unidentified adult male, IBD must either assume the Ritva’s position (in which case, again, these are not additional reasons for leniency because they are themselves predicated on Ritva’s position), or IBD must assume that the mystery adult male under the chupah was not Torah observant. The former appears to be IBD’s position, as the “Discussion” section specifies Ritva’s position as the basis for invalidating the adult male. Thus, these additional reasons for leniency are not additional reasons at all, as they are themselves predicated on Ritva’s position. Simply put, this betrays a fundamental ignorance of how senifim are to function.
An overly charitable reader might claim that IBD assumes the latter possibility, that the adult male is invalidated because he is not Torah observant (although this appears not to be the case from the “Discussion” section, as noted.) It would, however, defy reason to suggest that such a significant portion of this psak is based on an assumption that is not only unsubstantiated, but left entirely unstated.
5 – The final reason for leniency, the husband’s claim that he is not Jewish, at first glance appears to be a strong reason, and is in fact independent of the other reasons. However, one then wonders why this was not the main basis for the lenient ruling, rather than the reliance on Ritva’s position. If this claim could be substantiated, it presumably ought to be the main basis for the ruling. If it is unsubstantiated, then it ought not to be included at all, even as a senif. Unfortunately, we are not told whether the IBD found any basis for this claim, or even whether they attempted to investigate this claim at all. Does he have family in the Jewish community? Did he have a bar mitzvah? Did his parents have a Jewish wedding? Did the officiating rabbi at the wedding under discussion conduct any investigation of the Jewish status of the bride and groom? These questions and their answers are not mentioned in Psak 105. Nor is there any halakhic analysis presented regarding the ne’emanut of the husband’s claim, or whether such a claim might run counter to an established chazaka. One might get the impression that the IBD did not bother investigating, because they would anyway nullify the kiddushin on the basis of the Ritva, and could throw this in as a senif. This could be the most important piece of information that could free this aguna. That there is no further elaboration on this issue, and that the IBD sufficed with a lone sentence regarding the husband’s status, is nothing short of stunning.
6 – The final paragraph of the “Discussion” section is incoherent. We are told regarding the potential male witness under the chupah that “Even if he was Torah-observant, in accordance with Ritva and others his testimony is invalid. Nonetheless, the mesader kiddushin may serve as one witness and in pursuance to Rema’s view, we must be concerned that one can consummate kiddushin with the presence of one witness.” How are we to understand that the other male under the chupah is invalid due to Ritva’s position (if one witness is invalid, regardless of intent, then all the witnesses are invalid), but nonetheless the mesader kiddushin can serve as one witness? In truth, the entirety of Psak 105 suffers from a disjointed and garbled train of thought. Any reader who possesses basic familiarity with teshuva literature will immediately recognize the pronounced absence of clarity that characterizes Psak 105.
7 – It is worthwhile to note that Rav Waldenberg and Rav Boyaron, upon whom the IBD explicitly place great reliance, both stipulated that their teshuvot of heter aguna require the approval of other rabbis of great stature. Of the three teshuvot of Rav Boyaron upon which the IBD relies, only the latter two deal with heter aguna. (The first deals with a case where the woman did in fact receive a get from a first husband, and the issue under discussion was whether she would be permissible to a Kohen. This is certainly a weighty issue, but not of the gravity of allowing a woman to marry without a get.) In one of the teshuvot that deals with heter aguna, Rav Boyaron stipulates that his teshuva requires the approval of the “Gadol Ha-dor Rav Ovadya.” He subsequently received the approval of both Rav Ovadya Yosef and the then Rishon Le-tzion Rav Shlomo Amar, and their approvals are printed in Rav Boyaron’s teshuva. In the last teshuva, he stipulates that his teshuva requires the approval of three “Morei Horaa”, as well as that of the Rishon Le-tzion, and that he would prefer to have Rav Ovadya Yosef’s approval as well. Similarly, in the teshuva of Rav Waldenberg upon which the IBD places so much reliance, Rav Waldenberg stipulates that his heter requires the approval of two other “Gedolei Horaa.”
We must bear in mind that it is a great mitzva to free an aguna. When addressing the tragic case of an aguna, rabbis traditionally conduct a thorough search looking for potential reasons to rule leniently. However, they must do so within the halakhic process; otherwise, they might be permitting a married woman to take a second husband. The necessity to maintain this delicate balance has led traditional rabbis to seek approval from leading colleagues before issuing a final ruling.
Given the IBD’s great reliance on the aforementioned teshuvot, it is surprising, to say the least, that the IBD makes no such stipulations in Psak 105. One of the IBD dayanim, Rabbi Warburg, has written an article elsewhere that seems to say that the IBD feels it to be their responsibility to annul marriages even without the approval of great halakhic authorities.6 It should go without saying, though, that such responsibility falls only on those who are capable of shouldering it. Even dayanim on the highest court in Israel maintained the humility to submit their psakim to their colleagues and superiors for approval. The IBD’s independence is not only bold, but contrary to the precedents set by the dayanim that they claim to follow.
II Technical Errors
Psak 105 is riddled with errors in spelling, punctuation, transliteration and basic Talmudic Aramaic, as listed in the Appendix to this review. Even well-crafted and professionally edited books contain typos. However, we find in this ruling an abundance of basic mistakes. Lest any reader conclude that I engaged in some sort of treasure hunt in search of these errors, let me assure you that I didn’t need to look very hard. Both the Hebrew and English versions of Psak 105 are each less than three pages in length. To err is human, but each version of Psak 105 contains such a high concentration of errors that it is jarring to read them. An attuned reader cannot even read through the first two lines of either version without encountering a blatant error.
Read the psak yourself, and scan the Appendix to this review. The carelessness and sloppiness which characterize Psak 105 reflect an overly casual and decidedly non-serious and unprofessional attitude toward the weighty issue of heter agunot. One wonders if any of the dayanim would take such a lackadaisical attitude toward publishing a book, a doctoral dissertation, a college term paper, or even a high school term paper. It is disturbing, to say the least, that the IBD dayanim would treat a psak of heter aguna with less seriousness and attention than a high school term paper would deserve. Such a significant collection of errors bespeaks a lack of respect for the readers, a lack of respect for the complex issue of heter agunot, and indeed, a lack of respect for the aguna herself to whom this psak relates. One cannot help but wonder if any of the dayanim bothered to proofread, or even read these texts before they were placed on the IBD website as a representative example of their work. Even if one dayan alone authored Psak 105, it would be the height of professional irresponsibility for the other dayanim to sign their names to a psak that they have not even read themselves. This gives rise to a serious question: how is the public expected to treat this psak seriously, when the dayanim themselves obviously did not, and their negligence is evident on every page? That we are told that this psak is representative of several other psakim of the IBD is deeply troubling.
Each one of the fundamental issues raised above would, on its own, provide significant cause to question the IBD’s judgment, to say the least. Collectively, to a careful and qualified dayan, they constitute a stunning display of incompetence. That the IBD would publish and rely on such a fundamentally flawed and lacking psak, and then proudly tout it as a representative example of their work, is scandalous. When viewed in light of the unprofessional and casual attitude towards heter agunot demonstrated by the myriad of technical errors enumerated in the Appendix, it should be clear why leading dayanim in America have declared the IBD and their psakim to be unreliable. The IBD is viewed by leading dayanim and poskim as a group of amateurs attempting to force their entry into an arena reserved for professionals. It is unfortunate that the general public has, until now, remained uninformed as to the specific nature of the opposition to the IBD. It is my hope that this paper will at least remedy this issue.
It is to be expected that the IBD will respond to this review in an attempt to provide solutions to the issues raised, justifications for their omissions, and excuses and/or corrections for their many errors. I would deem futile any such attempt to rehabilitate their image, for the following reasons. A qualified and competent Beit Din should not require my instructions on how to craft a complete and coherent psak; nor should they need to rely on others for complimentary proofreading. Furthermore, the stigma of incompetence is not remedied quite so easily.
The following is a list of spelling, punctuation, typographical and transliteration errors that appear in the English version of IBD Psak 105.7
1 – Synopsis Line 2: “witness who was not relate to the groom” should be “was not related”.
2 – Discussion Paragraph 1 Line 5: “and an rabbi” should be “and a rabbi”.
3 – Discussion Paragraph 2 Line 2: “Amongst, the individuals” should be “Amongst the individuals” with no comma.
4 – Discussion Paragraph 2 Lines 3-5: “Notwithstanding most poskim who rule that such individuals are invalid me’doraita (on a biblical level) in accordance with certain interpretations of Rambam’s view, such testimony is to be invalidated only on a rabbinic level.” This should read “invalid me’doraita (on a biblical level), in accordance with certain interpretations of Rambam’s view, such testimony is to be invalidated only on a rabbinic level” with a comma after the parentheses. The omission of the comma has altered the meaning of the sentence vis-à-vis the certain interpretations of the Rambam.
5 – Discussion Paragraph 3 Line 6: “will not effect the eligibility” should be “will not affect the eligibility”.
6 – Discussion Paragraph 5 Line 1: “Tzit Eliezer” should be “Tzitz Eliezer”.
7 – Footnote 1: “Divrei Ribost” should presumably be “Divrei Rivot”.
8 – Footnote 1: “geonic olam” should be “geonei olam”.
9 – Footnote 5: “Noda be-Yehuda, Mahadura Tanina” should be “Mahadura Tinyana”. This error requires more elaboration. “Tanina” is an Aramaic word found often in the Talmud, which means “we taught”. “Tinyana”, which shares a similar (Hebrew/Aramaic) spelling with “Tanina”, is the Aramaic word for “second”. The second volume/collection of Noda be-Yehuda’s teshuvot is known as “Mahadura Tinyana”, as is the second volume of R’ Akiva Eiger’s teshuvot, among others. Our dayanim are apparently unaware of the proper pronunciation of the Aramaic word that means “second”, having confused it with the common Aramaic word that means “we taught”. It is unfathomable to find such an elementary error in basic Talmudic Aramaic within a psak signed by dayanim who purport to be qualified to be matir eishet ish without a get.
10 – Footnote 8: “Tzit Eliezer” should be “Tzitz Eliezer”.
11 – Footnote 15: “Beit Dn” should be “Beit Din”.
12 – The transliteration is inconsistent throughout the document. For example, khaf sofit is transliterated as “ch” in “Shulhan Aruch” (Discussion paragraph 2, as well as footnote 12) and in “Aruch Hashulhan” (footnote 13), but as “kh” in “Shakh” (footnotes 3,7, and 8). Additionally, khaf is transliterated as “h” in Mordehai (footnotes 5 and 12).
13 – Chet is transliterated as “ch” in “chupah” (Synopsis line 1), but as “h” in “hupah” (throughout the Discussion section).
14 – The transliteration of khaf as “h” in “Mordehai” does not correspond to any transliteration convention that I am aware of.
The following is a list of the spelling, punctuation and typographical errors that appear in the Hebrew version of IBD Psak 105.8
1 – תמצית Line 1: “בםפק” should be “בספק”.
2 – עובדות המקרה Line 3: “לגב.אהרליך”should have a space after the period.
3 – דיון Paragraph 2 Line 2: “בוגר” should presumably be “מבוגר”, which would be consistent with תמצית Line 1.
4 – דיון Paragraph 4 Line 2: There should be a period following “עדותן בטלה”.
5 – דיון Paragraph 5 Line 2: There should be no period following “עדותן בטלה”. It appears that the missing period from number 4 above mistakenly made its way here.
6 – החלטה Paragraph 2 Line 6: “כמוכן” should presumably be “כמו כן”.
7 – Footnote 1: “דברי ר’ בות” should presumably be “דברי ריבות”.
8 – Footnote 8: “ורבים קיימיה כוותיה” should be “ורבים קיימי כוותיה”.
9 – Footnote 10: “שו”ת מהרי אסאד” should be “שו”ת מהרי אסאד ג:מ”.
10 – Footnote 13: “תו”ת שערי רחמים” should presumably be “שו”ת שערי רחמים”.
http://www.torahweb.org/torah/docs/ibd-machaa.html. Other signatories include Rav Nota Greenblatt, widely considered the foremost expert on gittin in America, as well as Rav Gedalia Schwartz, among others. ↩
Shaarei Tzion Even Ha-ezer 2: 9-11 ↩
Line numbers correspond to the pdf version available on the IBD website. ↩
Here as well, line numbers correspond to the pdf version available on the IBD website. ↩