– Lecture –
Professor B. Jackson
Co-Director, Centre for Jewish Studies, University of Manchester
‘Agunah and the Problem of Authority’ © Bernard S. Jackson
Text of lecture delivered on March 13th 2001 under the auspices of the Institute of Advanced Legal Studies, the Oxford Centre for Hebrew and Jewish Studies and the Jewish Law Publication Fund Trustees.
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‘It is not your duty to complete the work, but neither are you free to desist from it’ (Pirkei Avot 2:20)
1.1 History and Authority
Not infrequently, the problem of agunah is approached by appeals to history, whether by simple reference to an earlier stage in the development of the halakhah, or to the dynamic processes of Jewish law: major historical changes, it is argued, have been made in Jewish law (not least, in the areas of marriage and divorce) in the past; why, then, can we not make the necessary changes to meet the problem of agunah today? Against this, a halakhist might reply: it is not a question of history, but rather of authority. The mere fact that changes were made in the past does not in itself entail the view that we have authority to make such changes today. At this point, however, the history of the matter re-enters the debate. The question of authority itself sometimes depends upon historical claims. If the Talmud ranks as the highest authority, we need to establish the text of the Talmud. One talmudic text vital to our question has, as we shall see, a problematic text. Is the establishment of the text itself to be determined by historical scholarship or by recourse to authority? Again, the questions “what did the Gaonim actually do, and on the basis of what authority did they do it?” are historical questions, but the normative value of Rabbenu Tam’s rejection of the Gaonic approach may be premised upon the answers given to them. Authority systems, moreover, themselves have a history. If we are not entitled to argue: “just because changes have been effected in the past, the authority must exist to make further changes today”, it must follow that we cannot argue either: “just because changes have been not been effected in the past, the authority cannot exist to make changes today.”
1.2 A New Problem?
In discussing this problem, the impression is often given that the agunah problem is a relatively recent one — a product of the era of Emancipation, when (i) both marital breakdown and abuse by the husband of his rights in relation to a get are more common and (ii) the halakhic authorities themselves (deprived by both internal and external factors of some of their traditional powers) have suffered a loss of nerve and have become more reluctant than their predecessors both to innovate and even to exercise powers which the halakhah gives them. In fact, these features of the “modern” period are already well attested from an early stage in the halakhic tradition. Mishnah Nedarim 11:12 already records a tightening in the rules regarding the wife’s entitlement (in defined circumstances) to demand a get against the will of her husband, the motivation being stated explicitly as “a woman must not be [so easily given the opportunity] to look at another man and destroy her relationship with her husband.” Indeed, even the strategy of rabbinic encouragement to the family of the agunah to “pay off” the husband in order to achieve a “voluntary” get is attested at least as early as the twelfth century (e.g. a responsum of Raban, §4.2, below). Other than the parallel existence of civil marriage and divorce, I believe that there is little in our present difficulties which is inherently modern or new. Contrary to some contemporary voices, the present difficulties already existed long before the introduction of civil marriage and divorce. Nor can we blame our present predicament on inhibitions against beating the husband deriving from secular criminal law: the halakhic problem of when kefiyah is permissible is quite independent of such external constraints.
I shall review some aspects of the history of three of the principal strategies which have been used to try to alleviate the problem of the agunah, in order to highlight the problems of authority which, respectively, afflict them. The agunah problem is, I believe, primarily a problem of authority. If we were able to resolve the various authority issues which arise, we would rapidly achieve a solution to the agunah problem (and much else, besides). Of course, we have to define what we mean by a “solution”. I do not demean the sincere efforts of those who have sought to provide case-by-case alleviation, or limited solutions, halakhic or secular (such as the inherently “parochial” measures involving inhibitions on divorce in secular law or the range of civil disabilities now available as sanctions in Israel). But the problem will continue to plague us — as one of morality, of reputation (hillul hashem) and of social/gender values — until and unless we find a universal solution, either one which prevents the situation of agunah from arising at all [I refer throughout to the victim of a recalcitrant husband, not the wife whose husband has disappeared] or provides a universal remedy when it does arise. So let me proceed to the three principal strategies: conditions, coercion and annulment.
2.1 Conditions contrary to halakhah: mamona and issura
Tosefta Kiddushin 3:7-8 states
[If he says] “I hereby betroth you … on condition that if I die you shall not be subject to levirate marriage,” she is betrothed, and the condition is void, as he has contracted out of a Law contained in the Torah, and when anyone stipulates out of a Law contained in the Torah, the condition is void. [If he says] “on condition that you have no claim against me for food, clothing, or conjugal rights,” she is betrothed, and the condition is valid. This is the principle: Contracting out of a Law contained in the Torah as to a monetary matter is valid, but as to a nonmonetary matter is void.
This might appear to close the door against a condition obviating the need for a get: if the husband’s (in principle, voluntary) delivery of a get is “a Law contained in the Torah”, then the capacity to override it by a tenai depends upon classifying it as “monetary” (!wmm lX awhX rbd). The distinction in Tosefta Kiddushin 3:7-8 might make that appear unlikely. However, divorce does involve financial consequences (regarding the ketubah), and this appears to have influenced R. Yose, in the Jerusalem Talmud, Ketubot 5:9 (30b), to take the view that a clause allowing the wife a unilateral right of divorce (for “hatred”) was indeed to be classified as “monetary”:
- Yoseh said: For those who write [a stipulation in the marriage contract] that if he grow to hate her or she grow to hate him [a divorce will ensue, with the prescribed monetary gain or loss, and] it is considered a condition of monetary payments, and such conditions are valid and binding.
~yyq !yyntw !wmm yynt tanX !ya anX !ya !ybtkd !ylya hswy ybr rma
Rav Shlomo Riskin attaches great significance to this Palestinian tradition. There is nothing in the Babylonian Talmud which explicitly negates it. Nevertheless, many later authorities proceed as if conditions of this kind are self-evidently excluded, applying the principle of: ljb want hrwtb bwtkX hm l[ hntmh lk. What, then, is the weight of an explicit ruling in the Jerusalem Talmud, against what is merely implicit as in the Babylonian tradition? Jerusalem Talmud Gittin 4:2 is also sometimes cited (e.g. Gilat, “Gittin”, Enc. Jud. VII.594): “Sages have the power to uproot Torah Law by annuling marriages.” Though this is not required for the argument based on classification of the tenai, it does support the distinctiveness of the Palestinian tradition, which, I shall argue, may be particularly relevant in contemporary circumstances.
2.2 The French Proposal
In modern times, a fresh attempt has been made to use conditions specifically to prevent women divorced in civil law to remain “chained” according to halakhah. The French Orthodox Rabbinate in 1907 urged that all ketubot include a clause providing that a civil divorce decree would annul the marriage. This proposal, however, met with widespread opposition, on two principal grounds. The first was violation of the principle ljb want hrwtb bwtkX hm l[ hntmh lk (despite a precedent in Rema, which, it was argued, was also wrong for the same reason). Secondly, any such conditions regarding Nissuin (if not the Kiddushin) would be invalidated by the subsequent marital relations between the couple, applying the principle twnz tly[b wtly[b hXw[ ~da !ya: a presumption (hqzx) that marital relations are intended as such, and not as acts of promiscuity. The status of sexual relations between the spouses, on this argument, cannot be conditional — they cannot be marital if not invalidated by subsequent acts bringing the condition into effect, non-marital if those conditions are fulfilled. The first of these objections seems to have overlooked the Palestinian tradition represented by the Jerusalem Talmud, noted above). To the second, a possible answer is provided by the distinction between:
2.3 Conditions Precedent and Conditions Subsequent
In the United States, Rabbi Michael Broyde, a strong opponent of the Rackman-Morgenstern court, has himself expressed the view that this may offer a way forward. Distinguishing the operation of conditions from mistake-induced invalidity (§4.4, below), he writes:
… when a tenai is made at the time of marriage, and kept in effect during the sexual relationship and then the tenai is breached, the marriage ends without any divorce, as if there never was a marriage. Nevertheless, the marriage is fully valid until such time as the condition is breached.
… All agree that a tenai can be kept in effect if, for example, the couple repeated the condition to a bet din each time before they engage in a sexual relationship.
The practical problem (which has generated a “custom and practice” of not using such conditions) is thus that of maintaining the conditions intact at the same time as the marital relations. One may observe that this an example of a rule devised originally for the benefit of the woman now being turned against her. But this problem is based simply upon a presumption (hqzx) that relations between husband and wife are intended as marital, and not as acts of promiscuity. Perhaps we can devise ways of rebutting that presumption, and thus maintaining the tenai intact, without requiring the couple either to go to the bet din before each time they wish to engage in relations, or (as has been suggested) have witnesses stand within earshot to hear their oral declaration (maintaining the tenai) before each such marital act.
2.4 Incorporation of a Condition in the PNA?
The PNA in use since 1996 in the United Synagogue makes no attempt to make the validity of the marriage conditional upon observance of its terms, as might have been achieved, for example, by expanding the final clause to read:
The bride and bridegroom confirm that they have made this agreement freely and in the full knowledge and understanding of the meaning of its terms and that their continuing willingness to abide by it is a condition of the continuing subsistence of the marriage.
It was reported at the time that some such condition had been considered but rejected. We have not been told why. Interestingly, this approach is, in principle, favoured by Dayan Berkovits.
3.0 Coercion and the moredet
3.1 The Talmudic text
The principle of coercion was accepted already by the Mishnah in cases where the law recognised that the woman had a right to divorce: this came to cover cases of “major” physical defect, malodorous occupations inhibiting conjugal relations, infidelity and abusive behaviour; indeed, Mishnah Ketubot 7:9 provides a list of cases where the husband is to be coerced: aycwhl wtwa !ypwkX wlaw. We find already in Mishnah Arakhin 5:6 the seemingly paradoxical statement: “so also regarding a divorce we force him until he says ‘I want to’”:
..yna hcwr d[ wtwa !ypwk ,~yXn yjgb rmwa hta !kwrmayX
Already in the Gemara the issue is raised as to whether coercion applies also to the case of the moredet, the wife who refuses conjugal relations to her husband without having one of the grounds listed by the Mishnah. This was to become a major issue between the Gaonim and the Rishonim. Its importance for the agunah resides in the fact that any wife refused a get by her husband might well declare herself a moredet, to whom her husband is “repulsive” (ma’is alay). In Ketubot 63b, we encounter a dispute between two Amoraim regarding both the definition and treatment of the moredet. The definitional problem need not concern us. What is important is the substance. The essential issue is as follows:
… if she says, however, “He is repulsive to me (yl[ syam),” [Amemar said] she is not forced (hl !ynypyyk al). Mar Zutra said: She is forced (hl !ynypyyk).
According to this, the issue between Amemar and Mar Zutra is whether the wife is to be compelled back (into marital compliance). Mar Zutra takes the view that she is; Amemar takes the view that she is not. Are we to take Amemar to imply that she is entitled to a divorce, even a coerced divorce? The text is not explicit, and later authorities have differed. However, recent work towards a critical edition of the Talmud text has revealed a significant variant. MS Leningrad Phirkovitch reads:
… if she says, however, “He is repulsive to me (yl[ syam),” [Amemar said] he is forced (hyl !ynypyyk). Mar Zutra said: She is forced (hl !ynypyyk).
Here, Amemar takes the view that it is the husband who is coerced, which can hardly mean anything other than that he is coerced to give her a get.
The issue raised by the variant text of Amemar’s opinion is of great importance for the later development of the halakhah. The Gaonim accepted and developed compulsion against the husband of a moredet, but their view was ultimately rejected by Rabbenu Tam (France, 1100-1171). For Rabbenu Tam, the Gaonim had no authority to go beyond the Talmud, and the Talmud referred to coercion, in the case of the moredet, only in respect of the wife, not in respect of the husband. But Rabbenu Tam did not have access to the variant MS tradition. Suppose that scholarship ultimately concludes that the variant represents the original text, so that the Talmud does contemplate coercion of the husband? Would such an historical discovery be taken into account by halakhic authority? A recent study of this problem by Rabbi Moshe Bleich [Tradition 27/2 (1993), 22-55] cites the view of Rabbi S.Y. Zevin, the editor of the modern volume of variae lectiones, that:
… a variant talmudic text is significant only when it can be demonstrated that an early-day authority based his ruling upon that version of the text.
But should that apply even when manuscripts become available which were not available at all to the earlier authorities? Is the situation not comparable to the principle of hilketa kebatra’i, where account is taken of the fact that the new argument could not have been known to the earlier authorities? However that may be, R. Moshe Bleich concludes that:
… for halakhic purposes, it is the consensus of contemporary authorities that inordinate weight not be given to newly published material. Even earlier authorities who gave a relatively high degree of credence to newly discovered manuscripts did so within a limited context. Accordingly, formulation of novel halakhic positions and adjudication of halakhic disputes on the basis of such sources can be undertaken only with extreme caution.
In this formulation, we may note, it is “the consensus of contemporary authorities” which serves as the criterion for the determination of (in Hart’s terms) a “secondary” rule of the legal system, one which tells us how we are authorised to recognise and change the primary halakhic rules.
3.2 The Gaonim and Rishonim
I turn now to the practice adopted by the Gaonim. Two issues are of particular interest: (a) what measures exactly did they take in order to free the moredet? (b) by what authority did they do so?
According to R. Sherira Gaon, “we compel him to grant her a divorce forthwith” rtlal jg hl btwkw wtwa !ypwkw. What exactly is meant by this? Kofin normally refers to physical coercion: thus, the husband is coerced (beaten) into writing (or authorising the writing, and delivery) of the get. On this formulation there is no suggestion that the court itself takes over any of the required formalities. What, then, if the husband resists the coercion? Nowadays, it is assumed that this is the end of the matter. The case of the recalcitrant husband who preferred to spend much of his life in an Israeli jail, and die there, rather than release his wife, is often cited. Yet there are hints of the use of a greater judicial power in some Gaonic and later sources. According to the Halakhot Gedolot (ascribed to Rav Shimon Kiara, 9th cent.): “… we grant her a bill of divorce immediately (rtla ajyg hl !nybhyw)”. Similarly, Rav Shmuel ben Ali, Head of a Babylonian school in the second half of the twelfth century, writes:
[The court] endeavors to make peace between [husband and wife], but if she refuses to be appeased they grant her an immediate divorce (rtlal jg hl !yntwn), and do not [publicly] proclaim against her for four weeks.
The use of the plural in these sources: !nybhyw, !yntwn, suggesting that the get is here effected by an act of the court rather than the husband, becomes more explicit still in an anonymous 13th-cent. responsum (quoted by Riskin, Women and Jewish Divorce, 52f.), which uses the expression: “they wrote her an immediate bill of divorce” (rtlal jg hl ybtkw). Such a view would seem to be implicit also in the following clause of a ketubah from the Genizah, in the collection of Friedman, Jewish Marriage in Palestine: A Cairo Geniza Study, I.56:
And if this Maliha hates this Sa’id, her husband, and desires to leave his home, she shall lose her ketubba money, and she shall not take anything except that which she brought in from the house of her fathers alone; and she shall go out by the authorization of the court (hnyd tyb ~p l[) and with the consent of our masters, the sages.
Indeed, the Rosh (R. Asher b. Yehiel (Asheri), Germany, 1250-1328), who followed Rabbenu Tam on the general issue, appears to have interpreted the Gaonic practice not as coercion but rather as annulment (hafka’at kiddushin):
… For they relied on this dictum: “Everyone who marries, marries in accordance with the will of the Rabbis” [bKet 3a] (Xdqm !nbrd ht[da Xdqmh lk), and they agreed to annul the marriage (!yXwdyqh [yqphl ~t[d hmykshw) when a woman rebels against her husband (Resp. 43:8, p.40b; Riskin, Women and Jewish Divorce, 126f.)
There, is, however, no necessary incompatibility in these various positions: they could be taken as steps which have to be taken in sequence — leading ultimately, but only as a last resort, to annulment.
By what authority did the Gaonim proceed? There is debate also as to whether the Gaonim claimed a talmudic basis for the takkanah (might they have had access to the tradition represented by the Leningrad MS?). Riskin comments that Nahmanides appears to believe that the Geonic decree introduced the coerced bill of divorce, whereas in fact the Geonim themselves believed this was already legislated in the Talmud. He observes that we have the texts of the original decrees of the Geonim, which apparently were not available to Nahmanides.
The responsum of Rav Sherira Gaon (which sets out his view of the history of the matter) uses the language of rabbinic takkanah, and explains it on the grounds that “Jewish women attached themselves to non-Jews to obtain a divorce through the use of force against their husbands.” The motivation is amplified somewhat in other sources. The anonymous 13th-cent. responsum quoted by Riskin (above) suggests that the twelve month delay required by the Talmud prompted women to resort to “bad ends, either prostitution or apostasy” (dmXb !yb twnzb !yb). In what Riskin (Women, 86f.) has identified as the earliest source to turn against the Gaonic practice, the Sefer Ha-Maor of Rabbenu Zerahyah Halevi, written between 1171 and 1186, the Gaonic decree (takkanah) is attributed to h[X tarwh. Rosh similarly explicitly construes these circumstances as amounting to “emergency measures, h[X $rwc, to go beyond the words of the Torah and to build a fence and a barrier”. But there is dispute amongst the Rishonim on whether such measures were intended as temporary “for that generation [only]” (Rosh) or “for [all] generations. This decree did not move from their midst for five hundred years” (Nahmanides). Rabbenu Tam, on the other hand, pays no attention at all to the argument from h[X $rwc. He appears to have regarded it as a minhag on a matter of issura, contrary to halakhah. In his view, the Gaonim had had no authority to go beyond the Talmud in this matter of coercion, and should not be followed. The (notoriously problematic) text of the Sefer Hayashar, however, leaves us with a doubt as to whether Rabbenu Tam himself considered that coercion of the husband was not contemplated at all in the Talmud, or whether it was contemplated after the 12 month waiting period instituted by Rabbanan Saborai (and which the Gaonim certainly overrode).
As for the issue of authority more generally, Rabbenu Tam argued that in matters regarding issura we have to wait for the coming of the Messiah before changes can be made from the position stated in the Talmud. In rejecting the Gaonic takkanah, he was rapidly followed by the Ashkenazi authorities. Nevertheless, even the Rosh (Germany, 1250-1328), who followed Rabbenu Tam in this, advised in a particular case:
If [her husband’s] intent is to “chain” her, it is proper that you rely on your custom at this time to force him to give an immediate divorce. (Resp. 43:8, p.40b)
tazh t[b ~kgxnm l[ $wmstX awh ywar hng[l wt[d ~aw
!mzl jg !tyl wpwkl
3.3 Historical queries
We are, in fact, faced by a series of doubts on historical issues which are presupposed by the arguments from authority in this area:
(a) What was the original text of Amemar’s ruling on the wife proclaiming ma’is alay in the Talmud?
(b) Assuming the traditional text of Amemar’s ruling, did it imply coercion of the husband or not?
(c) Did the ruling of Rabbanan Sabora’i, requiring the wife to wait 12 months for her get, imply (as the Gaonim clearly understood) that after that period the court would compel him?
(d) What did the Gaonim mean (and practice) by compulsion? Were they willing, in the final resort, to override the husband’s resistance, whether by having the court authorise the writing and delivery of the get, or by hafka’at kiddushin?
(e) By what authority did the Gaonim proceed: interpretation of the Talmud (or a different talmudic textual tradition), takkanah, custom?
(f) If they were motivated by tsorekh hasha’ah, did they themselves conceive their measures to be temporary, and if so how temporary?
(g) Did the Rishonim have accurate information as to what the Gaonim did and on what authority they based themselves?
(h) Do we have accurate information on the reasoning of Rabbenu Tam?
On all these questions, we may ask whether the authority of the tradition is affected by what may turn out to have been historical errors concerning its prior development. For example, if Rabbenu Tam did take the view that coercion of the husband is never mentioned in the Talmud and that the Gaonim did not base themselves on talmudic authority (even a minority opinion in the Talmud), and these claims turn out to be historically incorrect, does that affect the status of the objections Rabbenu Tam made to the reforms of the Geonim? Or do we take the view that, like an erroneous textual tradition, error may be validated by subsequent acceptance? Not necessarily. In discussing hilkheta kebatra’i, Elon (Jewish Law, I.271) quotes Rema:
In all cases where the views of the earlier authorities are recorded and are well known and the later authorities disagree with them — as sometimes was the case with the later authorities who disagreed with the geonim — we follow the view of the later, as from the time of Abbaye and Rava the law is accepted according to the later authority. However, if a responsum by a gaon is found that had not been previously published, and there are other [later] decisions that disagree with it, we need not follow the view of the later authorities (aharonim), as it is possible that they did not know the view of the gaon, and if they had known it they would have decided the other way.
3.4 Value of a Solution based on Coercion
There is, however, a further problem if we look to coercion as potentially providing a universal solution to the problem of the agunah. For this purpose, not only must coercion be universally available to a wife refused a get; there must also be means of ensuring that the coercion is universally effective. If the husband (as in the notorious Israeli case) remains recalcitrant despite the coercion, a universal solution must find a way of dispensing with his participation altogether. We are thus led to consider the halakhic issues relating to annulment.
4.1 The Talmudic cases
The Talmud discusses a number of cases where a marriage was annulled, often indicating clearly the grounds and basis of authority. Here, the problem in using this remedy for the benefit of the agunah resides not in doubts regarding its talmudic authority, but rather whether that authority has survived, and if so how far the talmudic cases may be extended. Two types of case are considered in the Talmud: some concern defects in relation to the initiation of the marriage; others relate to subsequent behaviour (including a form of misuse of the get procedure itself).
We may take the incident at Naresh (Yev. 110a) as exemplifying the first type: a man “snatched away” a woman who had been betrothed as a minor to someone else. Despite the fact that the abductor might have “acquired” the woman by either money or intercourse, the Rabbis did not require her to obtain a letter of divorce from him. R. Ashi explained: “He acted improperly, they, therefore, treated him also improperly, and deprived him of the right of valid betrothal.”
!gwhk alX wb wX[ $kypl !gwhk alX hX[ awh
.hynym yXwdyql !nbr whny[qpaw
Elsewhere, too, R. Ashi was willing to annul a marriage, using the same formula in a case where a woman consented to betroth herself under pressure of physical violence (B.B. 48b). The Talmud discusses the issue of authority in relation to the form which the betrothal effected by the abductor might have take: if the kiddushin was by kesef (conventionally, with a ring), the Rabbis invoke a power of (retrospective) confiscation, hefker bet din hefker, which has a biblical basis in the powers granted to Ezra (10:8). But even if the betrothal was by biyah, the view is taken that a procedural defect can be found: the intercourse will be regarded (conclusively) as motivated not by the intention to constitute kiddushin, but rather by zenut. In short, immoral behaviour on the part of the groom here justifies the Rabbis in constructing a procedural defect in the kiddushin, such as to render it void. No valid kiddushin having taken place, no get is required.
The second type of case, annulment based on subsequent behaviour, may be exemplified by Gittin 33a, where the problem resides in the husband’s use (or abuse) of his (biblical) right to cancel a get at any time before it is delivered to his wife, even after he has committed it to an agent for delivery. The right to cancel is taken to exist even without communication to the messenger. Mishnah Gittin 4:2 records an earlier practice whereby the get could be annulled simply by the husband’s convening a Bet Din to do so. Clearly, this placed the wife in an intolerable position: she might act in good faith on the get and remarry, only to find that her first marriage had not in fact been terminated. For this reason Rabban Gamliel the Elder enacted (!yqth) a takkanah that any such a cancellation of the get by the husband was invalid, “to prevent abuses” (~lw[h !wqt ynpm). The Talmud here asks how this could happen, since apparently a rabbinic ordinance is allowed to invalidate an act of the husband (in cancelling the get) which is biblically valid. The reply: “Yes, all who marry do so subject to the conditions laid down by the Rabbis, and the Rabbis annul this marriage”:
.hynym !yXwdyql !nbr whny[qpaw Xdqm !nbrd at[da Xdqmd lk
4.2 Post-talmudic retrenchment
Yet when we reach the Rishonim of Ashkenaz, we find (here as in the issue of coercion for the benefit of a moredet), the beginnings of a tradition of rabbinic reticence regarding the use of annulment. A responsum of Raban (R. Eliezer b. Nathan of Mainz, 12th cent.) is particularly interesting, given the similarity of the case which prompted it to the Naresh incident in the Talmud. An incident occurred in Cologne in which a young man was negotiating with the parents of a young woman for her marriage when a new suitor, this time a man of wealth, appeared on the scene and arranged to marry her. The father instructed his daughter to marry the man of wealth. However, the young man’s relatives deceitfully got to her first and he married her by reciting harey at … and giving her a ring in the presence of witnesses prepared in advance. When the woman’s parents realized what was happening, they told her, “Throw away the ring.” She did so and married the man of wealth. The local scholars were prepared to annul the marriage to the young man, following the precedent of Naresh. Raban, however, disagreed. While offering a possible distinction between this case and Naresh — perhaps, here, the girl agreed to the marriage — he argued that, in any event:
… even if the Rabbis [i.e., the Talmudic Sages] had the power to annul a marriage, we do not have such a power of annulment, and it stands to reason that we do not have such power …
What was the outcome?
We advised her relatives to pay the young man some money to free her, and this is what happened. The first man gave her a divorce and the second one betrothed and married her and the matter was accomplished legally. I record this to teach future generations. (Resp. Raban, E.H. III, 47b; Elon, Jewish Law, II.848f.)
Elon (Jewish Law, II.850) notes that this denial of the power of hafka’at kiddushin was also the view of Rabbenu Tam, who denied that even the Geonim had possessed authority to annul such marriages.
4.3 Annulment in takkanot hakahal
The issue in the case presented to Raban was whether there existed an inherent power of annulment, to deal with abuses of the kiddushin procedure. But the power of annulment might be based either on rabbinic or communal enactments (takkanat hakahal). Thus, Rashba (R. Solomon b. Abraham Adret, Spain, 1235-1310) was asked:
Does a community (lhq) have the power to adopt an enactment that provides, in order to punish scoundrels, that a marriage effected in the absence of ten persons is void (!yXwdq wyXwdq ahy alX)? (Rashba Resp. 1, 1206; Elon, Jewish Law, II.853f.)
He replied that the authority to make such an enactment exists if the people of the town agree, but subject to a veto by any halakhic scholar within the locality. Indeed, he attributes to the communal authority both the power to apply here the principle “He acted improperly, they, therefore, treated him also improperly” (§4.1, above) and that of hefker “bet din” hefker. The community is here equated with the bet din, the only difference being the additional invocation of the powers conferred by the Talmud on ry[h ynb. There is, however, a sting in the tail of the responsum. It is framed between an opening reference to the “strict law” (!ydh trwX), and a concluding note of hesitation: “Nevertheless, the matter requires further consideration” (rbdb bXythl $yrc dw[ ~wqm lkmw), which seems to suggest that powers may exist but the authorities may be reluctant to use them.
In a responsum by Ribash (R. Isaac b. Sheshet Perfet, 14th cent.), such reserve generates a doctrine of consensus. Ribash was asked to about the validity of a communal enactment (Resp. #399):
… providing that no one may marry any woman except with the knowledge and in the presence of the communal officials, and in the presence of ten persons; and that if anyone should violate the law and marry contrary to these requirements, the marriage is void (!y[qpn wyXwdq wyhyX). At the time a marriage is contracted [in violation of the enactment], the community expropriates the money or other property given to effect the marriage, and the property is considered to be ownerless and of no value. The marriage is annulled (!y[qpwm wyhy !yXwdqhw), and the woman may marry without any divorce (jg ~wX ylbm) and is not even required to obtain a divorce to remove any possible doubt.
Ribash seeks to reassure the questioner: there is an (independent) power conferred by the Talmud on ry[h ynb (B.B. 8b); moreover, he buttresses this with a “consensual” argument: the communal institutions represent the people, so that the people are by such takkanot, in effect, adopting new standard conditions (tena’in) in their own future marriages. He adds, moreover, that even if it were necessary to rely upon the principle of Xdqmh lk in cases such as this, the questioner need not hesitate in attributing that power to the kahal (lhqh t[d l[) as well as to the Rabbis: indeed, once the people of a town agree to such conditions by enacting the takkanah, those conditions will serve as implied terms (binding even on one who ~ts Xdqm). Ribash thus concludes unequivocally that the community has the power to adopt the proposed takkanah. That being so, the final paragraph comes as a surprise:
This is my opinion on this matter in theory. However, as to its practical application I tend to view the matter strictly; and I would not rely on my own opinion, in view of the seriousness of declaring that she needs no divorce to be free [to marry], unless all the halakhic authorities of the region concurred, so that only a “chip of the beam” [cf. Sanh. 7b] should reach me [i e., so that I do not take upon myself the full responsibility, but only part of it].
,hz yt[d l[ $mws ytyyh alw ,rymxhl $kwx ytyyh ,hX[ml lba .hklhl
.twlylgh ymkx lk tmkshb ,al ~a .jg alb haycwhl :!yn[h rmwxl
arwXkm abyX ,!yyjmld ykyh yk
Ribash is not willing to bear the responsibility for this decision alone; he requires the concurrence of “all the halakhic authorities of the region” (twlylgh ymkx lk tmksh) — despite the fact that he had earlier pronounced the approval of the local scholar as desirable but not essential. We are thus left with a paradoxical situation: such a power of communal enactment may itself be halakhically exercised without a consensus of rabbinic authorities, but a consensus is required for a formal haskamah for such exercise, since the individual authority consulted is reluctant to take sole responsibility for giving such an haskamah. Elon observes (Jewish Law, II.856), this reflects a desire “to divide the responsibility for the decision among as many authorities as possible”; perhaps we should say, rather, that it reflects a desire to divide the responsibility for authorisation of the decision among as many authorities as possible.
4.4 Kiddushei Ta’ut and the Rackman-Morgenstern Court(s)
Although several of the cases of annulment we have surveyed address issues of consent, the question of mistake vitiating consent does not appear in the literature until a relatively late stage. Rabbi Howard Jachter has recently reviewed the history. The Talmud discusses the effect of the discovery of unknown “defects” in the woman, not the man; the remedy there is a get. It is not until Tosafot that we encounter the view that in some cases — that of an unambiguous Aylonit — no get is required since the marriage is considered invalid, and even here many Rishonim (including, again, Rabbenu Tam) rule that a get is rabbinically required for fear that the husband might have been prepared to marry her anyway. Jachter concludes that “all opinions agree that there are precious few circumstances in which a marriage can be invalidated if the man finds a severe defect in the woman he married.” As for defects discovered in the husband after the marriage, the issue is not addressed until the Aharonim. Some take a strict view and hold the marriage valid even despite discovery of “an extremely severe flaw in her new husband such as that his male organs are missing”; others are willing to invalidate the marriage in such circumstances, at least “if other lenient considerations exist, such as if a witness to the wedding ceremony was unqualified to serve as a witness or if the husband is missing and possibly may be dead.” In the absence of such considerations, the wife still requires a get “on a rabbinic level”: he cites the Beit Halevi for the view that “there is absolutely no room to say that she does not need a get, for even if a man finds a severe defect in a woman, a get is rabbinically required.”
It is against this background that a number of annulments granted by Rav Moshe Feinstein have been discussed: in one, the husband is reported to have been incurably impotent before the marriage (Iggrot Moshe E.H. 1:79); in another, “a man concealed that he was institutionalized prior to the marriage (E.H. 1:80); in a third, he concealed that he was a practicing homosexual prior to the marriage (E.H. 4:113); in a fourth (the facts of which are more disputed), he concealed that he converted to another religion (E.H. 4:83). These decisions have themselves been described as “extraordinary” (Jachter: though he does not take them to be erroneous or invalid), and the criteria for Kiddushei Ta’ut have generated discussion: Rabbi Michael Broyde, for example, indicates that the remedy is based on mistake, not fraud, notwithstanding the fact that the cases decided by Rav Moshe Feinstein do appear to have involved knowing concealment on the part of the husband. More important: the defect must have been present in the husband at the time of the marriage, and the woman must discontinue marital relations with her husband either immediately or very soon after the discovery of the defect.
Rav Moshe Morgenstern has been severely criticised for going beyond these criteria. Thus, he applies the principle of Kiddushe ta’ut (amongst other arguments) to the very circumstances of denial of a get: a woman would not consent to enter into a marriage had she known at the time that the husband could or would arbitrarily refuse her a get. Such a refusal “may very well be a sign of sadism that existed before the marriage.” In such cases, he argues, there is a presumption that his later-manifested psychological condition existed prior to the marriage, and thus it is the husband who has the burden of proving that the defect did not exist before the marriage.
We need not enter into the merits of this interpretation. What is significant for present purposes is (i) the fact that the Aharonim have developed what is a new area of application for the annulment remedy, despite the widespread view that annulment is not available to post-talmudic authorities; (ii) the authority attached (on all sides) to the decisions of Rav Moshe Feinstein. Rabbi Jachter observes:
Rav Moshe in these responsa certainly stretched the halacha to its outer limits and virtually no other halachic authorities have adopted his position (although a great rabbi may choose to issue a ruling in accordance with Rav Moshe’s views in case of emergency when it is absolutely impossible to procure a Get from the husband).
It would thus appear that even today it is possible for a “great Rabbi” to follow such decisions of Rav Moshe Feinstein, even without a consensus on the halakhic issue in question.
4.5 Takkanot in Israel
Professor Elon (“Takkanot”, Enc. Jud. XV. 727f.) argues that the reluctance to adopt post-Geonic legislation in areas of marriage and divorce reflects the fear that different communities might adopt different rules. However, he maintains, the situation has changed with the establishment of the State of Israel, and the authority accorded to its halakhic institutions. In the 30’s and 40’s they were prepared (in general) to adopt takkanot. For example:
… the introduction of adoption as a legal institution represented an innovation in Jewish law … In 1944 the following three matters were enacted in different takkanot: the minimal amount of the ketubbah was increased “having regard to the standard of living in the yishuv and economic considerations”; the levir refusing to grant the widow of his deceased brother halizah was rendered obliged to maintain her until releasing her; the legal duty was imposed on the father to maintain his children until reaching the age of 15 — not merely until the age of six years as prescribed by talmudic law. Included in the matters laid down by takkanah in 1950 was the prohibition against the marriage of a girl below the age of 16. The introductory remarks to the takkanot of 1944 emphasize the twofold basis of their enactment, halakhic authority and the assent of the communities of the yishuv and their representatives.
Since then, Elon observes, legislative activity on the part of the halakhic authorities in the State of Israel has dried up. He regards this as regrettable, and points particularly to the problem of the agunah. Elon thinks that the halakhic authorities in Israel may (or should?) now command sufficient “standing” to enact appropriate takkanot, again using the talmudic institution of annulment on the basis of Xdqmh lk:
Solutions to these problems are capable of being found through the enactment of takkanot leading to an annulment of marriage in special cases, in the manner and by virtue of the talmudic principle described above in some detail. The already mentioned threat of a proliferation of laws and lack of uniformity on a matter of great halakhic sensitivity, which inhibited past generations from acting on the stated principle, has much abated in modern times in the light of the central spiritual standing which may be allocated to the halakhic authority in Israel in its relations with other centers of Jewry in the Diaspora.
Yet even he puts this in terms of “special cases”: he does not, seemingly, present it as a universal solution to the problem.