Mamzer: Maharsham's solution of annuling the proxy by Rabbi J. David Bleich

  The following is an excerpt from an article which appeared in Tradition. Go to the Tradition website to read the full article.  Tradition

Rabbinic authorities have always  sought ways and means of alleviating the plight of unfortunate individuals stigmatized by mamzerut in order to permit such individuals to marry within "the community of God." Their efforts consisted of examining the loopholes which would have the effect of removing the onus of bastardy. Perhaps the most famous of these proposed remedies is a tentative suggestion advanced by Rabbi Shalom Mordecai Schwadron in his Teshuvot Maharsham, I, no. 9.

The Mishnah, Gittin 32a, states that in former times a husband could appoint a proxy to deliver a bil of divorce to his wife and yet retain the prerogative of annuling the proxy and thereby invalidating the divorce. Originally the husband was not required to inform the proxy of his change of heart. This practice was later banned by Rabban  Rabban Gamaliel the Elder in order to promote "the better ordering of society" (tikkun ha-olam). In defining the concept of tikkun haolam, R. Yochanan maintained that the measure was designed to prevent the proliferation of mamzerim. A messenger, unaware of the fact that his authority to deliver the bill of divorce had been nullfied, might in good faith present the bil of divorce to the woman in question. The woman, equally unaware that the proxy had been annulled and her divorce nullifed would feel free to remarry. Under such circumstances any issue of a subsequent union would be momzerim in the eyes of Jewish law.

R. Yochanan states that it was to prevent such unfortunate occurrences that Rabban Gamaliel forbade annulment of the proxy other than in the presence of the messenger. In the event that the husband transgresses the injunction of Rabban Gamaliel and annuls the proxy other than in the presence of the messenger, R. Simeon b. Gamaliel ordained that the act of annulment itself be null and void so that the bil of divorce may retain its validity. In discussing Rabban Gamaliel's decree the Gemara raises an obvious objection. It is axiomatic that a bil of divorce which is invalid according to Biblical law cannot be validated by rabbinic decree. In response to this objection the Gemara enunciates the well known dictum: "Everyone who betroths (a wife J does so in accordance with the intention of the Sages, and they annulled his betrothal."

The import of this statement is that while the Sages have no power to validate a bil of divorce which is not valid under biblical law they do have the power to annul the marriage itself retroactively. Since they do not acquiesce to the marriage under such circumstances the stipulated condition has not been fulfilled and the marriage itself is null and void. The status of the woman in these circumstances is not that of a divorcee but that of a single woman who had been consorting with a male without benefit of a nuptial ceremony.

Accordingly, as a result of Rabban Gamaliel's decree, annulment of a proxy other than in the presence of the messenger and sub. sequent delivery of the get to the wife become the occasion for the retroactive annulment of the marriage. Tosafot points out that Rabban Gamaliel's decree could be utilied in furthering certain ends which Rabban Gamaliel would certainly not have sought to promote. By invoking this decree acts of adultery could be legitimized with the cooperation of the husband and both the adulterer and the adultress might be enabled to escape punishment.

This could be effected by having the husband draw up a bil of divorce, appoint a proxy to deliver it to his wife and subsequently annul the proxy other than in the presence of his messenger. The resultant effect would be annulment of the marriage ab initio which would then mean that subsequent intercourse with another male was in the nature of fornication rather  than adultery. Ri, cited by Tosafot, maintains that this procedure is perfectly legal.

Maharsham, quoting Tosafot, points out that a mamzer could also be legitimized retroactively in precisely the same manner. If the husband is yet living and willng to cooperate he could simply appoint a proxy to deliver a bil of divorce to his wife and then proceed to annul the proxy other than is the presence of the messenger. Since the marriage is annulled retroactively the liaison between his wife and another man does not constitute adultery and hence the issue of that union are not mamzerim.

The innovative suggestion of Maharsham has been the subject of several recent articles of note. The proposal was brought to the atten. tion of readers of TRADITION by Rabbi Dr. Louis Rabinowitz, Spring 1971, pp. 5.15. Moriah (Elul 5730-Tishri 5731) featured an article by Rabbi Shlomo Zalman Auerbach, eminent Israeli halakhic authority, containing a lengthy and exhaustive analysis of Maharsham's position. In Panim el Panim of Shevat 2 and I Adar 13, 5733 the Israeli sèholar and jurist Professor M. Silberg discusses practical proposals to eliminate inci. dences of mamzerut. Professor Silberg's views are challenged by Rabbi Judah Dick (Panim el Panim, I Adar 13, 5733), a New York at. torney and Talmudic scholar who has espoused the cause of the agunah both in legal proceedings before civil courts and . in a determined effort to find halakhic redress for her unfortunate plight. 

Maharsham's language, "Had you consulted me before the bil of divorce was executed by the first husband I would have made a suggestion le-halakhah vo-lo le-ma'Qseh (according to theoretical halakhah but not for practical application)" clearly indicates that Maharsham viewed his innovative proposal as relegated to the realm of theory and not for actual implementation. Maharsham's use of the subjunctive phrase "had you consulted me" demonstrates that his answer even at that time would not have been intended for practical application. Rabbi Auerbach presents numerous reasons, many highly technical, in explaining why practical implementation of this proposal is precluded. The most salient of these considerations are the following:

1. The major argument against implementation of Maharsham's proposal is that Ramban, Shita Mekubetzet and Me'iri, in their commentaries on Ketubot 3a state , clearly that any children born of an adultrous relationship prior to the retroactive annulment of the marriage are mamzerim by virtue of rabbinic decree. According to these authorities the rabbinic decree providing for annulment of the marriage was accompanied by a de. cree declaring such issue to be legitimate precisely because the Sages did not want the decree regarding retroactive annulment of the marriage to serve as a tool in the hands of evildoers. This opinion is followed by many latter-day authorities. (See Ketab Sofer, Even ha- Ezer, no. 51; Oneg Yom Tov, no. 169; and R. Shlomo Kluger,H a- Elef Lekha Shlomo, Even ha-Ezer, no. 34. Pitchei T eshuvah, Even ha- Ezer 144: 1 also cites Berit Avra. ham, Even ha-Ezer, no. 49, sec. 5. See also Rashba, Ketubot 3a and Isaac Elchanan Spektor, Ein Yitzchak, I, Orach Chaim, no. 28, sec. 23.) Oneg Yom Tov states explicitly that "It is for this reason that this solution is not mentioned by any authority."

2. Retroactive annulment of the marriage renders all preceding acts of coitus acts of fornication. An individual is not permitted retroactively to transform his actions into transgressions and certainly should not be advised to do so and abetted in such a course of action by a B-it Din.

3. It is not certain that when the husband is counseled by a Bet Din to annul the proxy the marriage itself is in fact annulled retroactively. The phraseology employed by the Gemara in explaining why such annulment was legislated is "He acted with impropriety. . . ." When acting upon the advice of a B.-it Din the husband can hardly be said to have acted with impropriety and hence there are no grounds for annullng the marriage.

4. A number of early authorities, including Ramban, Re'ah and Rashba, maintain that in point of fact the original marriage is never annulled. According to this interpretation, the husband, cognizant of the statutory provision for such annulment, recognizes that annulment of the proxy is of no avail and hence never actually intends to annul the proxy. P'nei Yehoshu'a, Ketubot 3a, offers a different interpretation in agreement with the basic premise that in actuality no annulment takes place. Both Dr. Rabinowitz and Professor Silberg assert that the late Chief Rabbi Herzog did in fact invoke Maharsham's proposal in practice. Rabbi Herzog does indeed discuss Maharsham's responsum in his Heikhal Yitzchak, II, nos. 17- 19. However, Rabbi Herzog's ruling in the specific case brought to his attention was based on different grounds. As is is often the case in halakhic responsa, considerations which are themselves insuffcient to warrant the conclusion advanced are adduced as a usnit" or secondary line of reasoning in order to strengthen the ultimate decision.

Rabbi Auerbach reports that dayyanim in Israel have on numerous occasions refrained from following Maharsham's suggestion precisely because the latter stated explicitly that his words were not intended for practical implementation. Apart from halakhic objections which have been advanced, the proposal as formulated by Maharsham suffers from one practical drawback, viz., it requires the active cooperation of the original husband. Needless to say the cooperation of an estranged husband is often difficult to obtain. [...]