Shabbat Zakhor and the Agunah Problem by Rav Shalom C. Spira

Shulchan Arukh Orach Chaim 685:7 requires all Jewish gentlemen [and according to some interpretations, Jewish ladies as well] to attend synagogue for Shabbat Zakhor, because the special maftir Torah reading constitutes a binding obligation on every individual. Remarkably, the haftarah reading from the Prophets that immediately follows this maftir, while not as weighty in terms of attendance duty, is of special interest to the agunah problem.

      "And Saul came to the City of Amalek, and he waged war in the nachal [wadi]" (I Samuel 15:5). The Gemara, Yoma 22b elaborates on "nachal" to mean that Saul's conscience struggled with the morality of waging war against Amalek in light of the mitzvah of the eglah arufah which is performed in a wadi called nachal eitan (as per Deut. 21:4). Specifically, says the Gemara, Saul contended as follows:

       "If for one soul [that is the victim of homicide] the Torah says to bring an eglah arufah, then how much more so for all these souls [in the City of Amalek]. And if the people sinned, how did the animals sin? And if the grown-ups sinned, how did the minors sin?"

      The Gemara concludes that a Heavenly voice answered Saul "do not be overly righteous" (Ecclesiastes 7:16). Namely, since the Holy One, Blessed Be He, specifically commanded Saul [via Samuel the Prophet] to wage war against Amalek [including children and livestock], therefore by definition the command is perfectly ethical.

      Now, by contradistinction, when we deal with the agunah problem, there is obviously no bloodshed in progress [witticisms about the sequence of Tractates Gittin and Kiddushin left aside], and hence it is fortuitously not as high-intensity an emotional drama. But the same answer that the Heavenly voice gave Saul indeed represents the appropriate repudiation to heterodox groups who insist on every agunah being entitled to leave her husband [no matter whether the husband is guilty or innocent of wrongdoing]: "do not be overly righteous." It is not possible to be more ethical than the Holy One, Blessed Be He, Who Has commanded us as Orthodox Jews to respect the sanctity of kiddushin. 

      There is, of course, a class of delinquent husbands who must be told or even coerced to deliver a get, as per Shulchan Arukh Even ha-Ezer nos. 77 and 154, but this concerns only some [and not all] marital discord situations. A qualified Beth Din must adjudicate these on a case by case basis.

      The above message is eloquently captured in the following 1975 remarks of R. Joseph Ber Soloveitchik [recorded at <https://www.yutorah.org/lectures/767722/>], responding to R. Emanuel Rackman's ill-fated proposal to rescue all agunot by claiming kiddushei ta'ut:

      "The truth is attained from within in accord with the methodology given to Moses and passed on from generation to generation. The truth can be discovered only through joining the ranks of the chakhmei ha-mesorah. It's ridiculous to say 'I have discovered something which the Rashba didn't know, the Ketzos didn't know, the Vilna Ga'on had no knowledge. I have discovered an approach to the interpretation of Torah which is completely new.' [It's] ridiculous. In order to join the ranks of the chakhmei ha-mesorah – Chazal, Rishonim, Acharonim –  we must not try to rationalize from without the Chukei ha-Torah, and we must not judge chukim u-mishpatim with the secular system of man."

      Some confusion appears to have been generated by a recent article published by R. Yonah Reiss claiming that there is a tradition of numerous poskim to find an escape-mechanism for every agunah. In the text accompanying footnote 7 of  <https://bethdin.org/the-halakhic-prenuptial-agreement/>, Rabbi Reiss avers that:

      "For the past one hundred plus years, there have been sustained efforts by numerous Jewish law authorities to formulate a type of prenuptial agreement that would address an additional area of concern within the Jewish community, namely the problem of Agunot (women whose husbands refuse to give them a Get despite the non-viability of their marriage). Since there is a long tradition of employing prenuptial agreements for the protection of a woman’s interests, including sustaining a marriage when in her best interests, or providing support for a woman in a troubled marriage, it seemed logical to use  this time-honored device towards the age-old rabbinic desideratum of preventing women from being Agunot."

      The reference in footnote 7 for the above text is as follows:

      "See the lengthy discussion in the article “Ein T’nai B’nisuin” by R. Tzvi Gartner and R. Betzalel Karlinsky, published in Yeshurun, volumes 8-10."

      Alas, be-mechilat Kevod Torato, Rabbi Reiss is mistaken. The three parts of the Gartner & Karlinsky article [available at <https://hebrewbooks.org/pdfpager.aspx?req=20292&st=&pgnum=690&hilite=>, <https://hebrewbooks.org/pdfpager.aspx?req=20349&st=&pgnum=681)>, and <https://hebrewbooks.org/pdfpager.aspx?req=20399&st=&pgnum=723&hilite=>] actually demonstrate how the consensus of Gedolei Yisrael condemned innovations designed to automatically grant agunot a get [or freedom to remarry without any get whatsoever], and characterized these innovations as heresy. [Cf. R. Moshe Feinstein, Iggerot Mosheh, Orach Chaim, IV, no. 49 who likewise describes as heretics those who attempt to reform halakhah for the sake of the feminist movement.] In my opinion, this also flows from the Mishnah, Yevamot 107a that "the daughters of Israel are not hefker." [N.B. Although Beit Hillel argue against Beit Shammai in that Mishnah with respect to kiddushin de-Rabbanan, the implication is that Beit Hillel concur with Beit Shammai regarding kiddushin de-Oraita, indeed the only form of marriage used nowadays. See also Rabbeinu Tam cited by Tosafot to Ketubot 63b that it is impossible that the Torah would allow an arrangement where every Jewish wife can leave her marriage whenever "she sets her eyes upon a different gentleman."]

      Importantly, Rabbis Gartner and Karlinsky cite (in footnote 103 of the second tier of their article) Rabbi Dr. Bernard Revel, first president of Yeshiva University, as being one of the many rabbis who put a cherem on any mesader kiddushin, groom, bride or witness who participates in a wedding with the heterodox proposal of appointing a shali'ach for a future agunah-rescuing get at the time of the chuppah. This pro-familialism message of President Revel underscores the reality that an agunah who graduates YU has exactly the same halakhah as an agunah who graduates Lakewood or Kiryas Joel.

      To be sure, there is one prenup which the Oral Torah does authorize to help agunot, as I have showcased at <https://daattorah.blogspot.com/2023/07/tishah-be-av-and-agunah-problem-by.html>. Consistent with the aforementioned words of Rabbeinu Tam, any such prenup cannot grant an automatic "get out of jail free" ticket to every agunah. Rather, my prenup [if actually employed before the chuppah] improves the financial position of every wife, allowing her to negotiate with her husband and offer to pay him for a get if both sides can arrive at a common understanding.

      "There is no wisdom and no understanding and no counsel against Ha-Shem" (Proverbs 21:30 cited by Eruvin 63a). The secular values of the street must necessarily defer to the sanctified values of Orthodox Judaism. It was my father's wish that his legacy be perpetuated through the recognition that the kiddushin which Reb Aharon Friedman offered Ms. Tamar Epstein was [and remains] valid, as discussed at <https://daattorah.blogspot.com/2025/01/a-eulogy-for-my-father-bt-av-shalom-c.html>. Let us remember this concept on Shabbat Zakhor.

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

A Eulogy for my Father by Rav Shalom C. Spira

  My father, Dr. Alexander Spira (Yeshayah Zvi ben Avraham Eliezer), ascended to the Heavenly Academy on 8 Shevat, 5784, and his aron was brought to Eretz Yisrael four days later on 12 Shevat. Hence, I recently completed the requisite twelve months of mourning with a eulogy delivered on this past Leil Asarah be-Tevet (corresponding to Jan. 9, 2025). The hesped, which took place at the beit midrash of R. Ephraim Chaim Crémisi [one of the dayanim of Jewish Community Council of Montreal] is audio-recorded at <https://www.dropbox.com/scl/fi/wbzc0hqk46uz0k20qcyu2/Rabbi-chalom-spira.m4a?rlkey=zw5vcrv6idjzc0rfdwrif5uta&e=3&st=ho5y3pyg&dl=0>. Special thanks are hereby extended to Reb Shmuel Yisrael (Sheldon) Keesel for enhancing the eulogy with his Siyum Mishnayot Seder Kodashim [commencing at 39:52 into the recording.]

      My father was born on March 17, 1941 in Nazi-occupied Czechoslovakia. Miraculously, he survived the Holocaust with his parents and siblings (be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo) and subsequently moved to Montreal, Canada, where my father overcame the foreign language barrier to become certified as a dental surgeon and serve the public oral health for 50 years. My father's commitment to loving Ha-Kadosh Barukh Hu via the Maimonidean path of studying both Torah and science was recognized by the late R. Moses J. Burak in a personal inscription that I read at 13:46 during the eulogy (a photo of which accompanies this column).

 A true hero, my father ultimately gave his life al Kiddush Ha-Shem rather than accept a heart-transplant that could have reversed his terminal cardiac failure, for the reason identified at <https://daattorah.blogspot.com/2023/05/celebrating-siyum-on-sotah-managing.html>.

      My father also generously supported my publications analyzing the agunah problem, which have appeared on this blog. He enabled me to plead before the Chief Justice of Quebec to explain my prenup agreement that ameliorates the plight of agunot. Importantly, at 32:15 into the eulogy recording, I call the audience's attention to my related essay "Response to R. Shmuel Kamenetzky on the Methodology of Resolving Cases of Iggun." The essay was already showcased on this blog [at <https://daattorah.blogspot.com/2021/05/daas-torah-and-legacy-of-rabbi-joshua-h.html>] as flowing from the legacy of the late R. Joshua H. Shmidman [himself tangentially mentioned at 7:08 into the eulogy recording]. My father was indeed a devotee of the late Rabbi Shmidman. [To that effect, Rabbi Shmidman would invite my father to commence birkot ha-shachar on the Days of Awe, apparently because "all beginnings are difficult" (as per Rashi to Exodus 19:5), such that my father's musical talent was required to inspire the congregation to duty.] Hence, my father derived nachat ru'ach from my aforementioned essay which clarifies how the Orthodox Jewish faith considers Ms. Tamar Epstein as still being the wife of Reb Aharon Friedman. 

      As referenced in my essay, the Beit Din Tzedek of Edah ha-Charedit of Jerusalem has asked all rabbinical judges throughout the globe to announce the same. And on p. 15 of Contemporary Halakhic Problems Vol. 4 (which my father purchased for me as a gift soon after its release), Rabbi J. David Bleich identifies that Beit Din Tzedek of the Edah ha-Charedit as the gold standard Beth Din in the world. Ergo, pursuant to the Gemara, Kiddushin 31b that a son is obligated to honour his father even after the latter's ascent to the Heavenly Academy, the values of my father are now perpetuated by my essay which upholds the sanctity of marriage.

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

A Call for Hamas to Surrender by Rabbi Shalom C. Spira

          .The Gemara, Eruvin 45a, establishes that the Sabbath must be desecrated in order to defend the borders of a Jewish state from enemy incursion. That casus belli standard was [more than] adequately met this past Oct. 7, 2023. Hence, as elaborated by R. J. David Bleich, Be-Netivot ha-Halakhah, I, pp. 77-84, the Israeli Defense Forces enjoy moral authorization to wage a war termed “ezrat Yisrael mi-yad tzar” (rescuing Israel from the oppressor, a termed coined by Rambam, Hilkhot Melakhim 5:1). This means there is no guilt whatsoever for collateral damage caused by the IDF in its legitimate war of self-defense against Hamas. 

      In my opinion, Rabbi Bleich is supported by Tosafot, Yevamot 114b, s.v. zimnin, who write that it is the nature of war for projectiles to be launched from a large distance, with the combatants not knowing who will actually be hit by those projectiles. Ergo, we can extrapolate from Tosafot that once the Torah authorizes the Jewish army to engage in ezrat Yisrael mi-yad tzar, it means that the Jewish army is granted immunity from guilt over collateral damage. [And that which the Gemara, Gittin 56b, speaks of “removing the threatening snake with tongues while protecting the barrel of honey” is specifically referring as a critique against Vespasian’s invasive attack on the Temple in Jerusalem, a fundamentally different situation.]  

      In an effort to verify that my proof from Yevamot 114b is dispositive, I touched base with posek ha-dor Rav Bleich. On Nov. 18, 2023 [after havdalah], he responded by e-mail as follows: 

 

“The reference in the Gemara is to milchamah ba-olam. That doesn’t sound as if there was Jewish involvement. If so, Tosafot is describing conduct of non-Jews before the Geneva Convention.” 

 

      Nevertheless, even granted Rabbi Bleich’s caveat, the bottom line is that Tosafot seem to demonstrate that the nature of warfare is to precipitate collateral damage. Ergo, while warfare may well be forbidden to Noahides [as per my previous article at <https://daattorah.blogspot.com/2022/06/a-cri-de-coeur-for-russian-army-to_30.html>], when the same concept of warfare is suddenly authorized for Jews under the rubric of ezrat Yisrael mi-yad tzar, collateral damage should presumably become justified. 

      It is true that Siftei Chakhamim to Genesis 32:8 comments that Jacob was distressed at the prospect of defending himself in war against Esau, lest Jacob execute collateral damage. However, there the issue appears to be emotional discomfort experienced by the patriarch, rather than identification of moral transgression. Assuredly, any war represents a monumental tragedy, and so Jacob desperately yearned to avoid it. But it remains the case that a military campaign of ezrat Yisrael mi-yad tzar – once necessitated by enemy attack – is ethically correct. [And see R. Chaim ben Atar, Or ha-Chaim to Genesis 34:31, who comments that it would have been collective self-endangerment for the family of Jacob had it failed to rescue Dinah from Nablus.]

      Furthermore, in my capacity as the author of [what appears to be] the only halakhic prenup that is actually effective in [at least somewhat] alleviating the agunah problem [as recently publicized at <http://daattorah.blogspot.com/2023/07/tishah-be-av-and-agunah-problem-by.html>], I contend that it is wrong for Hamas to prolong this conflict and thereby risk creating agunah cases among the wives of IDF soldiers. Rather, Hamas should recognize that “wisdom is better than weapons of battle” (Ecclesiastes 9:18), and surrender. 

            In attempting to appeal to the conscience of Gazans, the key issue at hand is how to properly channel the spiritual yearnings of Gazan society in a halakhically correct way. Rambam, Hilkhot Melakhim 10:9-10 rules that Noahides must not invent their own religion. Rather, Noahides are commanded by the Holy One, Blessed Be He, to observe the Seven Commandments identified by the Gemara, Sanhedrin 56b. If a Noahide seeks further spiritual enrichment, then he is welcome to choose to volunteer to perform any additional mitzvah [that would normally be directed to Jews alone] that he seeks, and he will receive reward as a volunteer for that mitzvah. The only exceptional mitzvot which Noahides cannot volunteer to observe are Shabbat and Torah study, as per the Gemara, Sanhedrin 58b-59a. [If a Noahide truly desires to observe even the latter two mitzvot, he enjoys the option of applying to a qualified Beth Din for consideration for conversion to Judaism.] 

            Now let us halakhically analyze the ways of many religiously fervent Gazans. They reject idolatry, insisting instead on worshipping the One and Only Master of the universe Who revealed Himself to Abraham. This represents a most impressive achievement, because it fulfills one of the Seven Commandments. Gazans also pray with devotion in Arabic, perhaps as much as five times a day. That’s wonderful, because prayer is a mitzvah that Noahides are either obligated or at least allowed to observe [-see Encyclopedia Talmudit, s.v. Ben No’ach], and prayer can be performed in any language, as per the Mishnah, Sotah 32a. Furthermore, when Gazans pray, they announce that “the Holy One, Blessed Be He, Is Great.” Well said: the Holy One, Blessed Be He, Is indeed Great, as per Deut. 10:17 [-a verse incorporated into the first paragraph of every Jewish amidah prayer for the past 2,400 years, as per the Gemara, Yoma 69b]. And the way that a Gazan should show that he truly recognizes that Greatness, is that the Gazan should observe the Noahide Code. Keep it at that, and thereby keep the peace.  

            Some confusion appears to have arisen from the fact that Gazan married ladies are scrupulously diligent to perform the mitzvah of kisui rosh (head covering). This may have led Hamas to the regrettable (mis)impression that it can therefore attack Jews. [To that effect, a recent statement by Agudath Israel, dated 17 Kislev, 5784, specifically asks all Jews (in the Hebrew version, though not directly translated in the accompanying English version) to strengthen themselves in kisui rosh. See <https://hamodia.com/2023/11/30/statement-from-moetzes-gedolei-hatorah-of-agudas-yisrael-on-yerushalayim-terror-attack/>.] 

            The reality that Arab civilization excels in kisui rosh was already known two millenia ago to the Sages of the Mishnah, as recorded in Shabbat 65a. Actually, the mitzvah of kisui rosh is primarily directed to Jews [as per the Gemara, Ketubot 72a-b], although one could hypothetically argue that it has bears a measure of relevance even to righteous Noahides, regarding whom we have an oral tradition that following the Deluge, they accepted upon themselves an enhanced dimension of respect for the sanctity of marriage. [See Rashi to Genesis 34:7 and Numbers 22:5, as well as Maharsha, Chiddushei Aggadot to Yevamot 63b, s.v. limsokh. And see Eruvin 100b which seems to indicate that Eve covered her head.] In any event, even if Noahides are not formally commanded in kisui rosh, a Noahide who volunteers to perform an extra mitzvah will certainly receive reward [as per the aforementioned Rambam, Hilkhot Melakhim 10:10], and so the Gazan married ladies deserve congratulations for their kisui rosh. Yet, at no time does the Talmud suggest that Arab civilization can therefore persecute Jews. On the contrary, Arab civilization – like all of humanity – is expected to seek spiritual excellence by specifically observing all commandments of the Noahide Code, and these commandments include refraining from murder and refraining from kidnapping.   

            Arguably [and as possibly reflected in the aforementioned Agudath Israel statement], there may be room for Jewish improvement regarding kisui rosh. Although R. Moshe Feinstein, Iggerot Mosheh, Even ha-Ezer, II, no. 12 allows a wig, his responsum is challenged by a lengthy monograph of R. Nehorai Yosef Ohana, Zahav Levushah (Jerusalem, 5774), available online at <https://hebrewbooks.org/56098>. To summarize the hundreds of pages of refutation: Rabbi Feinstein claims that since a gentlemen can presentably groom his face with a scissors-like kosher shaver [despite his thereby becoming visually indistinguishable from someone who grooms his face with a forbidden razor], therefore we should extrapolate that a married lady can also don a wig [despite her thereby becoming visually indistinguishable from a single lady.] Alas, the extrapolation is questionable (with all due respect to Rabbi Feinstein) because the two cases are dissimilar in terms of how they apply in situations of life-preservation. Specifically, piku’ach nefesh indeed allows a gentleman to shave with a normally-forbidden razor [as famously occurred, for example, to R. Michoel Dov Weissmandl and the Stropkover Rebbe when they were hiding in a Bratislava bunker during the Holocaust; see the cleanshaven photos of them in Artscroll’s The Unheeded Cry, ch. 13], whereas even in a situation of piku’ach nefesh, a gentleman has a mitzvah to look away from a lady [other than for a purely functional recognition], as per the Gemara, Sanhedrin 75a. Ergo, it is logical to surmise that kisui rosh should operate with a more rigorous standard [and not be fungible with a wig], so as to visually distinguish the married ladies from the single ladies. Nevertheless, even granted this argument against Rabbi Feinstein, the forum for implementing this improvement is the Beth Din system which supervises conversions to Judaism [and hence can make a demand of prospective converts to accept upon themselves kisui rosh, as one can discern from <http://www.beisdinofsouthflorida.com/%D7%92%D7%99%D7%A8%D7%95%D7%AA-conversion/>]. That is to say, this argument against Rabbi Feinstein [while valuable in its own right] does not exempt Gazans from their paramount obligation to uphold the Noahide Code, which includes refraining from murder and refraining from kidnap. 

            My late mentor R. Joshua H. Shmidman (previously showcased at <https://daattorah.blogspot.com/2021/05/daas-torah-and-legacy-of-rabbi-joshua-h.html>) would introduce the recitation of the sacrificial order within the Yom Kippur mussaf service with the following insight. The spilling of blood in animal sacrifices, when orchestrated in the manner prescribed by the Torah, serves as a kosher outlet for the worshipper to escape the inclination to spill human blood. As such, I would recommend for Gazans to read R. Binyamin Fuss, Torat ha-Bamah (Jerusalem, 5766), available at <https://hebrewbooks.org/47849>, a detailed Noahide Code treatise on how all humans [other than Jews] can bring animal sacrifices today. In other words, although Jews are barred from offering sacrifices until the Temple will be rebuilt in the messianic era, Noahides can indeed offer sacrifices today as a matter of practical Halakhah, following the guidance in this publication. This will afford Gazan society [and indeed any other Noahide society that so opts] an opportunity to spill animal blood as part of religious observance, without ever engaging in violence against human beings. 

      May we indeed see humanity embrace the Noahide Code, and thereby usher in an era of global harmony. And the first step in that direction is for Hamas to surrender. 

 

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

Clarification of R. Ovadiah Yosef's position

Today Kevod Torato ha-Rav critiqued Rav Gestetner regarding ma'eese alai (in a reprint from several years ago) at http://daattorah.blogspot.com/2016/05/summary-halochot-on-mous-olay-and.html . However, I feel that, be-mechilat Kevod Torat'kha, this critique contains a misrepresentation of R. Ovadiah Yosef, a misrepresentation that originates with R. Michael Broyde at https://traditiononline.org/the-1992-new-york-get-law/ , text accompanying footnote 27. For there, Rabbi Broyde claims that R. Ovadiah Yosef, Teshuvot Yabi'a Omer, III, Even ha-Ezer nos. 18-20 allows coercion of the husband in many cases of ma'eese alai. No, unfortunately, with all due respect to Rabbi Broyde, that is a serious misreading of Yabi'a Omer. To understand this better, please see footnote 39 and accompanying text of my prenup essay at https://www.scribd.com/document/176990434/Prenuptial-Agreements . Namely, as I elucidate there, Yabi'a Omer is addressing an extremely narrow case of a Yemenite lady who was forced under threat of physical violence to accept kiddushin from her Yemenite "groom", and soon after this charade-of-a-wedding, she ran away. So, the whole marriage never halakhically took place altogether [for a lady can only receive kiddushin by her free consent, as per the Gemara, Kiddushin 2b]. Still, rather than let the lady walk out without a get [which me-ikar ha-din would be the halakhah], Yabi'a Omer is a little extra-machamir to say "you're both Yemenites, so even according to the so-called groom who claims that a marriage took place [which it really did not], the groom should also accept to be punished with jail as the Rambam holds is appropriate until he writes a get." Now what happened? Rabbi Broyde saw this teshuvah and distorted it (be-mechilat Kevod Torato) as communicating "the Yabi'a Omer allows coercing husbands in many cases of ma'eese alai". So while Rabbi J. David Bleich [in his repudiation of Rabbi Broyde at https://traditiononline.org/communications-86/ ] did not specifically respond to this distortion of Rabbi Broyde, I do respond to this distortion in my prenup essay [so as to illustrate that Rabbi Bleich's repudiation of Rabbi Broyde is correct], and I point out that two volumes later, in Teshuvot Yabi'a Omer, V, Even ha-Ezer no. 14, R. Ovadiah Yosef forbids charging mezonot to a recalcitrant husband even in a case of ma'eese alai, since that would constitute coercion. [So, evidently, the general approach of R. Ovadiah Yosef is to forbid coercion (whether incarceration or financial) in a case of ma'eese alai, with the Yemenite groom from two volumes earlier representing a special exception that has no bearing on any case that would ever arise in New York state.] I feel that Kevod Torato ha-Rav must correct this for the sake of halakhic honesty.

Thank you,

Shalom C. Spira

Tish‘ah be-Av and the Agunah Problem by Rabbi Shalom C. Spira

    The Gemara, Ta‘anit 30a, prohibits most areas of Torah study on Tish‘ah be-Av. One of the few permitted exceptions, as identified by Mishnah Berurah, Orach Chaim 554, se’if katan 3, is the passage in Gittin 55b-58a regarding the Temple destruction. The conclusion of that passage – an exposition of Micah 2:2 – is interpreted by Maharsha (Chiddushei Aggadot) as declaring that if even one husband is wrongfully pressured to divorce his wife [in violation of Exodus 20:14] or if even one marriage is poisoned by adultery – then the entire Jewish People is held accountable to collectively protest. Thus, it emerges that Tish‘ah be-Av is a time to reaffirm our commitment to the sanctity of marriage – and to eschew half-baked solutions to the agunah problem – as I previously wrote at <http://daattorah.blogspot.com/2023/01/the-legacy-of-rabbi-feivel-cohen-vis.html>.

      R. Simchah Rabinowitz, Piskei Teshuvot al Mishnah Berurah Chelek Shishi, points to another exception presented by Mishnah Berurah, this time in se‘if katan 5. Where a halakhic verdict is urgently needed on Tish‘ah be-Av for a sick patient or for litigants in a monetary dispute (who cannot wait until tomorrow), a decisor may study the case as is necessary to provide immediate guidance. Rabbi Rabinowitz explains that this is what justified R. Shalom Mordechai Schwadron, Teshuvot Maharsham, I, no. 84, to formulate a responsum on Tish‘ah be-Av to permit an agunah to remarry. Indeed, Rabbi Schwadron concludes that responsum by citing Bach to the effect that rescuing an agunah is a spiritual achievement equivalent to rebuilding one of the ruins of Jerusalem. 

            Upon careful reflection, it emerges that there is no contradiction between the aforementioned Maharsha and Maharsham regarding the agunah-problem message of Tish‘ah be-Av [and, poetically enough, their works carry almost identical names]. Where the Oral Torah declares that an agunah can remarry, such as the case of Maharsham in which he discovered sufficient circumstantial evidence to presume the first husband to be dead, then it is indeed a great mitzvah to enable this remarriage. But where the first husband is demonstrably both alive and innocent of any wrongdoing, then Maharsha directs us to respect that first (and only) marriage. 

For this reason, R. J. David Bleich, responding to the 1992 New York Get Law [a well-meaning but unfortunately less-than-successful attempt to solve the agunah problem], comments as follows [available at <https://traditiononline.org/communications-86/> ]:

                "Regrettably, instead of serving as a panacea resolving the plight of the agunah, the Get Law has itself                       created countless agunot. It is precisely because of concern for agunot that the Get Law cannot                       be allowed to stand."

In other words, we must always take into consideration the Maharsha vs. Maharsham dichotomy, thereby distinguishing true from imagined solutions to the agunah problem. That is why my own prenup proposal [available at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>] contains a clause shielding the husband and wife from any secular court that might wreak havoc with a get. 

Prenuptial Agreements | PDF | Halakha | Hebrew Words And Phrases Halakhic analysis of prenuptial agreements, leading to a combination of two halakhically kosher prenuptial agreements to benefit the Jewish wife www.scribd.com

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Continuing on this theme, I would like to highlight my recent exchange with R. Heshey Zelcer in Hakirah Vol. 28 (Spring 2020) [available at <https://hakirah.org/Vol28Letters.pdf>] regarding the [once again well-meaning] Yashar Prenup. I hypothesize that the poskim who are advertised as supporting this prenup (R. Moshe Sternbuch, et al, be-mechilat Kevod Toratam) innocently glossed over paragraph 16 of the agreement, which states as follows: 

 

           “At the initial session, Beth Din shall outline the issues between the Parties and make a            determination of the interim payments necessary to ensure that the lifestyle of the un-                                emancipated children of the household (if any) can be maintained, and that they can continue            to attend yeshiva.” 

 

 Rabbi Sternbuch et al do not raise an objection to this paragraph, presumably because it does not explicitly require the husband to pay the wife until he grants her a get. However, as one can discern from the aforementioned Hakirah exchange, Rabbi Zelcer effectively interprets this clause to in fact mean that the Beth Din will direct the husband to pay the wife until he grants a get. And so, the Yashar Prenup seems to present a problem that is essentially identical to that of the RCA prenup, the latter representing a prenup that Rabbi Sternbuch and others have identified would produce an invalid get. [See <https://hebrewbooks.org/60970>.] 

A careful examination of Rabbi Sternbuch’s letter of approbation for the Yashar Prenup [available at <https://yasharinitiative.org/docs/RabbiMosheSternbuch.pdf>] reveals that he is appreciative to the framers of the prenup for keeping the Jewish litigants out of secular court. However, Rabbi Sternbuch does not say that he permits charging the husband money until the latter grants a get, and – indeed – he could not permit such an innovation without contradicting what he wrote regarding the RCA prenup. [For a different perspective (than mine) on the Yashar Prenup, see Yechezkel Hirshman at <https://achaslmaala.blogspot.com/2023/01/prenups-xii-straight-dope-on-yashar.html>. Hirshman does not believe that the Yashar Prenup actually costs the husband any money, yet he concurs in practice (with me) to keep the proposal on ice. See there for his illuminating approach.] 

      

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

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.