The Legacy of Rabbi Feivel Cohen vis-à-vis the Agunah Problem – Part 2 bv Rabbi Shalom C. Spira

 The Legacy of Rabbi Feivel Cohen vis-à-vis the Agunah Problem – Part 2 

                                                Shalom C. Spira 

 

As I wrote in my previous article at <http://daattorah.blogspot.com/2022/12/the-legacy-of-rabbi-feivel-cohen-vis.html>, the legacy of R. Feivel Cohen vis-à-vis the agunah problem – as he sought to publicly express it – is that the Jewish faith considers Ms. Tamar Epstein to be the wife of Mr. Aharon Friedman. At the same time, it has also been argued [by R. Mordechai Willig] that there is an additional dimension to Rabbi Cohen’s legacy, viz. that he quietly supported Rabbi Willig’s prenup to resolve future agunah cases, based on an extrapolation from shtar chatzi zakhar to the laws of gittin. My article challenged the latter extrapolation, be-mechilat Kevod Toratam. 

 A recent audio recording (dated Oct. 26, 2018) demonstrates that my opinion is shared by R. J. David Bleich. Actually, Rabbi Bleich already contested Rabbi Willig’s prenup back in 1996 in his Be-Netivot ha-Halakhah Vol. 1 (which is elaborated in Section A of my prenup essay at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>). The novelty of the 2018 audio recording is that Rabbi Bleich responds to the specific claim that the shtar chatzi zakhar should serve as a precedent for Rabbi Willig’s prenup. Rabbi Bleich orally counters that this specific claim is “nonsense.” The shtar chatzi zakhar represents a kinyan me-chayim, viz. a mercantile acquisition orchestrated from the time that the client is alive, to bequeath property to his daughter [or some other beneficiary who would not normally inherit according to the algorithm of Numbers 27:8-11] in a manner that takes effect a moment before the client’s death. By contradistinction, Rabbi Willig’s prenup consists of a penalty on the husband for not getting along with his wife and additionally not granting her get. Since there is no gemirat da‘at [seriousness of intention] on the part of the husband, the husband is not obligated to pay the money by Torah law. [And since the secular court will nevertheless enforce the financial penalty, the resulting gittin are invalid.] My thanks are extended to R. Yisrael Zvi Harari, a disciple [of both Rabbi Bleich and Rabbi Willig] at the RIETS kollel le-hora’ah, who conducted the interview and provided me with the audio recording, available at <https://soundcloud.com/shalom-spira/interview-with-rav-bleichmp3>. 

I also received supportive e-mail feedback (on Jan. 2, 2023) from Yechezkel Hirshman (a marriage counsellor and to‘en-in-training who has published an in-depth critique of many different prenups – including my own – at <https://achaslmaala.blogspot.com/2023/01/prenups-xii-straight-dope-on-yashar.html>). Yechezkel wrote to me (inter alia) as follows: 

 

“As per the situation with HRHG Rav Feivel Cohen ZTL, I agree with you that expressing agreement to a specific Halachic construct is not to be construed as an agreement on a compound Halachic innovation. I also agree with your distinction between a shtar chatzi zachar and a get. I think it is pretentious for anybody to claim a deceased gadol as a "closet supporter" of a very contentious issue.” 

 

            Accordingly, let us honour the legacy of Rabbi Cohen by politely praying that Ms. Epstein soon return with her true halakhic husband [Aharon Friedman] to Beth Din, and let us likewise politely encourage all couples that have signed Rabbi Willig’s prenup to sign a release form from that prenup [even if the latter concept contradicts Rabbi Cohen’s closet support]. Ultimately, as underscored by R. Joseph Ber Soloveitchik’s 1975 lecture recorded at <https://www.yutorah.org/lectures/lecture.cfm/767722/rabbi-joseph-b-soloveitchik/gerus-mesorah-part-1/>, a key dividing line between Orthodox Judaism and heterodoxy is that the former respects the sanctity of marriage, pursuant to the Gemara, Kiddushin 2b that betrothal is called kiddushin because the wife becomes forbidden to the entire world like hekdesh (the Temple treasury). Thus, half-baked solutions to the agunah problem must be avoided by Orthodox Jews. 

 

Rabbi Spira works as the Editor of Manuscripts and Grants at the Lady Davis Institute for Medical Research [a Pavillion of the Jewish General Hospital] in Montreal, Canada.