Last month, on 26 Marcheshvan, 5783, Rabbi Feivel Cohen – author of Badei ha-Shulchan and other works – ascended to the Heavenly Academy. Ten days later, Rabbi Mordechai Willig – chief justice of the Beth Din of America – delivered an eloquent appreciation for Rabbi Cohen [available at <https://www.yutorah.org/sidebar/lecture.cfm/1051145/rabbi-mordechai-i-willig/eruv-in-brooklyn-some-words-on-rav-feivel-cohen/>] , in which he mentioned Rabbi Cohen’s legacy vis-à-vis the agunah problem. I wish to respectfully yet carefully review Rabbi Willig’s remarks in the present essay, ke-darkah shel Torah.
The bulk of Rabbi Willig’s lecture explores Hilkhot Eruvin. Seeking to solve a particular difficulty in the field that is raised by Sfat Emet, Rabbi Willig [commencing 53:50 into the recording] cites a brilliant insight of Rabbi Cohen’s book Da‘at Kohen which clinches the discussion. It is at this point that Rabbi Willig turns to eulogizing Rabbi Cohen by describing the latter [not only as a proficient scholar in Eruvin but also] as a closet supporter of his prenup [viz. the 1993 Beth Din of America prenup] designed to rescue agunot.
Specifically, Rabbi Willig reports that – years ago, when Rabbi Willig was first contemplating his proposed prenup [before its ultimate release in 1993] – he studied Rabbi Cohen’s book Mi-Dor le-Dor, where the author elucidates how to execute an estate-inheritance-will via a shtar chatzi zakhar without running afoul of the rules of asmakhta (a contingency agreement wherein the person accepting liability never seriously anticipates that his obligation to pay will materialize and hence is halakhically invalid). After digesting the book’s contents, Rabbi Willig arrived at the conclusion that the same mechanism which Rabbi Cohen employs to bypass the asmakhta problem for a shtar chatzi zakhar can likewise bypass the asmakhta problem for committing a husband to pay his wife money as soon as she moves out of the house until such time as the husband will grant a get [=the essence of Rabbi Willig’s prenup, and a putative formula to rescue agunot].
Seeking confirmation, Rabbi Willig approached Rabbi Cohen with the prenup idea. In Rabbi Willig’s words: “He was very nice to me. He said: ‘You know, it’s very good, the sevara is right, but we’re not doing it over here in Brooklyn.’” The implication of Rabbi Willig’s testimony is that Rabbi Cohen agreed to his prenup in principle, but simply as a matter of voluntary policy [so as not to rustle the feathers of fellow Brooklynites] preferred not to implement the concept in his community.
Alas, Rabbi Willig’s extrapolation from shtar chatzi zakhar to the laws of gittin [and likewise Rabbi Cohen’s reported closet support thereof] is (be-mechilat Kevod Toratam) tenuous. In the case of a shtar chatzi zakhar, the sober-minded individual signing the document knows in advance that there is a reasonable probability he will die (until we are privileged to experience the messianic era when the mal'akh ha-mavet will disappear, as per the Gemara, Sukkah 52a) and so he sincerely wishes to bequeath property to others a moment before death occurs [as the shtar chatzi zakhar declares]. By contradistinction, in the case of Rabbi Willig’s prenup, the groom who signs the document does not seriously entertain the probability that his wife will ever demand divorce in the future. [If he realized that this was such a demanding wife, he wouldn’t have signed the document in the first place.] Hence, the quotidian money transfer specified in the prenup indeed represents an asmakhta which the husband is not obligated to pay, and if a secular court nevertheless threatens the husband that he will lose the specified money until he grants a get, then the get is invalid as per the Mishnah, Gittin 88b [that a get coerced by a secular court contrary to Halakhah is invalid].
Admittedly, it is true that the Mishnah, Makkot 3a compares the actuarial probability of future death to the actuarial probability of future divorce in calculating how much money to fine edim zomemin (witnesses who claimed that a husband divorced his wife without granting a ketubah, and were then discovered to be false by virtue of their not being in the location of the alleged divorce at the time of the alleged divorce). Perhaps it is this Mishnah that caused Rabbi Willig and Rabbi Cohen to believe that we can extrapolate from the shtar chatzi zakhar (i.e. anticipation of death) to the prenup (i.e. anticipation of divorce). Even so, however, a careful examination of Makkot 3a reveals that [regarding divorce] the Mishnah is discussing the actuarial probability that the husband will offer a get to his wife of his own free will in the future, not the actuarial probability that the wife will demand a get from her husband in the future [the latter representing the basis of Rabbi Willig’s prenup]. Thus, it remains the case that Rabbi Willig’s prenup is subject to the asmakhta objection. Ergo, it is precisely because of our sympathy for agunot that we should encourage any married couple which has signed Rabbi Willig’s prenup to sign the release form [revoking the secular court’s ability to enforce Rabbi Willig’s prenup] in Section A of my relevant essay at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>. Otherwise, the wife may be stuck with an invalid get and hence remain an agunah. The same message [albeit without a sample release form] is offered by Rabbi Pinchas Spira [no immediate relation to this student] in his treatise Kedushat ha-Nissu’in, available at <https://hebrewbooks.org/60970>.
Me-inyan le-inyan be-oto inyan (to borrow the expression from Kiddushin 6a), Rabbi Willig’s prenup plays an illuminating role in the specific agunah case of Epstein vs. Friedman. Namely, as reported at <https://yucommentator.org/2012/04/panel-featuring-current-agunah-confronts-crisis/>, on March 29, 2012, Rabbi Hershel Schachter claimed that [notwithstanding Exodus 20:14, which prohibits arbitrarily telling a husband to divorce his wife, nevertheless] Mr. Aharon Friedman is obligated to grant Ms. Tamar Epstein a get because nobody told her about Rabbi Willig’s prenup before her marriage to Mr. Friedman. Had she known about Rabbi Willig’s prenup, she would have executed it prior to her chuppah and thereby enjoyed an automatic “get out of jail free” card.
Alas, this approach (while well-meaning) represents a compounded error by Rabbi Schachter (be-mechilat Kevod Torato). Firstly, Rabbi Willig’s prenup would not have rescued Ms. Epstein from her agunah predicament since the prenup does not work altogether [as argued in the present article]. Secondly, even if there would be an [alternate] prenup that does work to rescue agunot [which indeed there fortuitously is, as explained in Section Q of my aforementioned essay at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>], failure to apprise the bride of the existence of the prenup [while perhaps unprofessional/unethical on the part of the mesader kiddushin who should have informed the bride in advance] most certainly does not constitute grounds for a Beth Din to subsequently obligate the husband to grant a get. See Shulchan Arukh Even ha-Ezer nos. 77 and 154.
And this brings us to my final point. Notwithstanding his reported closet support of Rabbi Willig’s prenup, Rabbi Feivel Cohen has clearly announced [in a public manner, and not merely in a private conversation] that Ms. Epstein remains the wife of Mr. Aharon Friedman according to Torah law. [See <http://daattorah.blogspot.com/2016/01/rav-feivel-cohen-rules-heter-is.html>, and my elaboration at <http://daattorah.blogspot.com/2022/07/response-to-eulogy-for-rabbi-nota-zvi.html>.] Ergo, if we genuinely wish to honour the legacy of Rabbi Cohen vis-à-vis the agunah problem, we should all politely pray that Ms. Epstein soon return to Beth Din with her true husband Mr. Friedman. And this is an especially appropriate aspiration for Chanukah, since the final paragraph of Rambam, Hilkhot Chanukah points out that the Holy One, Blessed Be He, will even allow His Name to be placed in water in order to bring peace between husband and wife.
Rabbi Spira works as Editor of Manuscripts and Grants at the Lady Davis Institute of Medical Research [a Pavillion of the Jewish General Hospital] in Montreal, Canada.
