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Each understood the Torah from his own vantage point according to his intellectual capacity as well as the . . . character of his individual soul. This accounts for the difference in comprehension, as one concluded that a thing was tame (ritually impure - AYW) in the extreme, another viewed it as clearly tahor (ritually pure – AYW), while a third person contends the ambivalent state of the object is in question. . . . Consequently, the learned men stated that in a controversy amongst true scholars, all views represent a form of truth . . . | {
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In his classic essay regarding this issue, Rabbi Michael Rosensweig eloquently formulates his analytical understanding of Maharal's position, elucidating the following: 26 " Elu va-Elu Divrei Elokim Hayyim : Halakhic pluralism and theories of controversy," Tradition 26:3 (1992), 13–14. | {
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There is often no one decisive response to the issue of tahara or tuma , for example, since overall proximity to the ideal form represented by the classic case rather than a specific combination of components determines this status. Thus, one may speak of approximately the ideal sufficiently but not fully, and by the same token substantially but not sufficiently, and consequently, a whole hierarchy of truths would emerge. Dilution of some components and combination with competing and undermining characteristics may also contribute to the creation of a quasi-status, whole ultimate fate in the realm of practical halakhah is likely to be debated. | {
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Utilizing an analogy, Maharal notes: 27 Maharal , supra n. 16. | {
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The tree, for example, is composed of four elements (water, earth, fire and air) but the principal component is air. . . . Likewise, though any single matter has various halakhic aspects associated with it – all endowed by Hashem – one of them is the most paramount, and that is the determining component, and that is the Halakhah . | {
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In short, halakhic controversy is either a representation of multiple halakhic truths, or exists due to extraneous reasons such as forgetfulness and loss of halakhic tradition. 28 A third approach espoused by Ketzot ha-Hoshen , infra n. 35 and Rabbi Moshe Feinstein, infra n. 35 is that from the perspective of Hashem there exists one truth while from the vantage point of the halakhic arbiter there is one truth which he is dutibound to fulfill, namely "the truth in rendering a ruling" ( emet le'hora'ah ). Consequently, if two decisors disagree regarding an issue both are "the words of the living God". However, only one position reflects the truth vis-à-vis heaven. See Shimshon Ettinger, "Controversy and truth-on truth in the halakhic context," (Hebrew), 21 Shenaton ha-Mishpat ha-Ivri 37 (2000). | {
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The emerging question is: how do these two diametrically opposing perspectives regarding the nature of halakhic controversy impact on how one perceives halakhic doubt ( safek de'dina )? If we adopt the notion that there is only one position in a halakhic debate which represents truth, then the opposing view is false, as it emerged by dint of extraneous factors such as forgetfulness or a loss in transmission of the mesorah . On the other hand, espousing the doctrine of multiple halakhic truths inexorably leads one to the conclusion that all the positions in a particular halakhic disagreement represent halakhic truth. 29 Obviously, if the arbiter has erred in his position, depending on the type of error, this will impact on whether the psak din , civil ruling or ritual ruling, remains valid, or if it becomes null and void as a result. See Sanhedrin 33a. Consequently, it is unsurprising to encounter Rabbi Yitzhak Yosef, a contemporary authority, citing the following in the name of Rabbi Refael Hazan of eighteenth-century Izmir: 30 Ein Yitzhak , 2:304. | {
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Hashem gave the determination of Halakhah to the scholars of Yisrael which Hashem showed to Moshe forty-nine leniencies and forty-nine prohibitions. . . . Therefore, if the decisors are in debate and the Halakhah was not decided, whoever practices in accordance with one of these opinions has whom to rely upon. . . . | {
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As such, even if one subscribes to the notion of the existence of multiple halakhic truths concerning a particular issue, lest one assume that a decisor (a posek ), may refrain from performing due diligence in deciding which view to accept and choose the stringent view, Talmud Yerushalmi exhorts us: 31 Talmud Yerushalmi, Terumot 5:3; Pnei Moshe , ad locum; Shakh, SA YD 242, Kitzur be-Hanhagat Hora'ot Issur ve-Heter , 9. See also Berakhot 28b. This approach emerges from Piskei ha-Rosh , Sanhedrin 4:6. | {
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Just as one is prohibited to purify the impure, similarly, one cannot declare that the pure is impure. | {
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For example, one of the techniques to void a marriage is labeled " kiddushei ta'ut " (loosely translated: a marriage in error). Prior to invoking the tool of kiddushei ta'ut and claiming there was an error in the creation of the marriage, one of the preconditions that must be obtained is that the husband's defect must be a major defect (a mum gadol ) such as sexual impotency, refusing to have children, insanity or homosexuality which preexisted the marriage, and that the husband failed to disclose this defect to his prospective wife prior to their marriage. 32 See this writer's Rabbinic Authority , vol. 3, 134–176, 294–327; vol. 4, 184–201, 284–297. A review of our halakhic tradition will indicate that the classical restatements of Halakhah such as Alfasi, Rambam, Rosh, Tur, Shulhan Arukh and Rema do not address the propriety of utilizing this technique as a vehicle for voiding a marriage concerning a husband's defects. However, there are over 90 responsa ( teshuvot ) which address the propriety of employing this tool. A review of these responsa will demonstrate that over 50 authorities endorse this approach and more than 25 decisors prohibit it. 33 See this writer's Rabbinic Authority , vol. 3, 138, n. 4, 140, n. 8. In light of the fact that the classical legists did not address this matter and there does not exist normative Halakhah addressing the legitimacy of utilizing this technique, 34 Though the majority of legists support utilizing this technique, nevertheless, applying the rule of following the majority (" aharei rabbim le-hatot ") is limited to disputes transpiring in a beit din setting rather than intergenerational controversies. See Beit Yosef HM 13 (end) in the name of Teshuvot ha-Rashba 2:104; Teshuvot ha-Rashba 3:304, 5:126; Get Pashut, Kelalim, kelal 1:5; Teshuvot Maharlbah 147. Cf. Teshuvot ha-Ridvaz 4:116. Even in accordance with the view that majority rule is applicable where there are authorities engaging in intergenerational disputes, Sefer ha-Hinnukh , mitzvah 78 contends that the authorities have to possess the same level of halakhic proficiency. See also Teshuvot Hikrei Lev, OH 496:96; Teshuvot Tzitz Eliezer 2:24, 3:29. See further, this writer's Rabbinic Authority , vol. 1, 50–52. Secondly, whether one follows the majority or a minority who are greater in wisdom is subject to debate. See Ran on Rif, Yoma 4b; Hiddushei ha-Ramban Sanhedrin 32a; Shakh, SA YD 242, supra n. 31, at 2. Finally, for the complexity in ascertaining a particular arbiter's proficiency, see Teshuvot ha-Rid 62. Consequently, the propriety of employing kiddushei ta'ut as a technique to void a marriage has and continues to this very day to be addressed and debated by arbiters throughout the centuries. decisors teach us that the arbiter is empowered to employ his knowledge and skills to address, deliberate upon this matter and arrive at a decision. 35 Teshuvot ha-Rashba 2:322; Sheilat David, Kuntres ha-Hiddushin , 73–74; Shakh , supra n. 31, at 4; Taz's Introduction to Shulhan Arukh, YD; Ketzot ha-Hoshen, Introduction ; Teshuvot Iggerot Moshe, Introduction to Orah Hayyim , YD 1:101, YD 3:88, OH 4:11, 39; Dibrot Moshe Shabbat 11. Clearly, arbitrarily choosing to align with one position is in contravention to the aforesaid Talmud Yerushalmi's dictum. 36 Upon analyzing an issue, an arbiter must distinguish between staking out a position based upon the understanding of the Mishnaic and Talmudic sources as interpreted by post- Talmudic authorities as well as the invoking of public policy considerations of Halakhah . In other words, it may be that an arbiter sincerely accepts that a particular practice is permitted by the authorities but nevertheless chooses to prohibit it due the fact that it may create a desecration of God's name (a hillul ha-Shem ) it may lead to people to engage in other prohibitions, it may undermine a certain revered halakhic institution or it may undermine another important halakhic value. See A. Frimer and D. Frimer, "Women's Prayer Services – Theory & Practice, Part 1," Tradition 32:2, 5, 39, 60–69 (1998) and this writer's Rabbinic Authority , vol. 4, 21–48. As such, an arbiter's decision grounded upon public policy considerations would not run afoul of the Talmud Yerushalmi's teaching. | {
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An authority 's failure to adhere to this teaching entails a commission of malfeasance regarding the rendering of a ruling. 37 Teshuvot Devar Yehoshua 3:2. If he was remunerated for his ruling, he has transgressed the sin of theft 38 Teshuvot Divrei Hayyim , 1 YD 2. and may be obligated to compensate the party for any ensuing damages incurred due to his judgment. 39 Teshuvot Ma'aseh Avraham HM 11; Teshuvot Havazelet ha-Sharon 1 YD 49; Be'air Hetev, SA YD 1:12. | {
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Regardless of whether we endorse the view that there are multiple truths concerning an issue or only one truth, the question is: how does an authority resolve a matter which is , an uncertainty as to what the Halakhah ought to be (a safek de'dina )? As we know, Halakhah consists of both financial matters ( dinei mamonot ) and ritualistic issues ( issur ve-heter ). 40 There is a third realm of Halakhah such as the formulation of, a blessing ( berakha ), reading of the Torah and prayer (tefillah ), which neither is to be identified with financial mattrers nor ritual issues. See Teshuvot Tashbetz 1:49, 153; Teshuvot Binyamin Ze'ev 55, 351. This realm is beyond the scope of our presentation. At first glance, giving that monetary matters such as theft or injuring a fellow man entail the violation of prohibitions ( issurim ), the matter of a halakhic doubt ought to be dealt with in the same way in both realms. Namely, such issues ought to be resolved like a matter of dietary laws ( kashruth ), marriage and divorce and other ritual questions where we act le'humra , stringently. Thus, can we derive the halakhot of monetary matter from a ritual issue? | {
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Implicitly relying upon the position of Rabbi Shimon ben Tzemah Duran (known by the acronym: Tashbetz), 41 Teshuvot Tashbetz 1:158. Rabbi Shimon Shkop, the dean of the early twentieth century Yeshiva in Grodno, Lithuania replies: 42 Sha'arei Yosher 5:1. Translation is culled from Menahem Elon, Jewish Law , JPS, 1994, 136. See also Moshe Amiel, Middot le-Heker ha-Halakhah , Middah 11, Metzi'ut ve-Din. | {
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Civil laws (loosely translated: mamonot – AYW) which govern the relations among people, operate differently from the other commandments of the Torah. In respect of all other commandments. . . . our obligation to fulfill them rests on the duty to obey God's command. Matters of mamon . . . however, are different; there must be a legal duty before a religious obligation arises to pay damages or make restitution . . . When we deal with a legal right in a chattel or with a lien, the focus of our concern is not the observance of a religious commandment but rather the objective circumstances, who has the legal ownership of the object or is legally entitled to its possession. | {
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In other words, the initial step is the need to determine who the owner of the object is or who has to pay damages, i.e. the legal right. Once that fact has been established, and then we can proceed to identify the party who violates the prohibition associated with this legal right, either by stealing from the owner or causing injury to the owner. Consequently, it is unsurprising that in a case of a halakhic doubt regarding a monetary matter, we do not remove the object from possessor (the muhzak ). 43 Bava Batra 32b; Piskei ha-Rosh , supra n. 31; Teshuvot ha-Rosh 1:8; Rema, SA HM 25:2. In fact implicitly relying upon two Talmudic precedents emerging from Rabba's ruling, 44 Bava Batra 32a-b. citing the responsum of Maharam of Rothenberg, 45 Teshuvot of Maharam of Rothenberg , Cremona edition, 159. Rabbi Asher ben Yehiel (known by the acronym: Rosh) states the following: 46 Teshuvot ha-Rosh 85:11. See also, Teshuvot ha-Rosh , supra n. 43; Piskei ha-Rosh , supra n. 31; Mordekhai, Ketuvot 4:154. | {
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This is what I received from our Rabbi Meir z"l, in a case where there is a controversy what the Halakhah ought to be, we do not extract a monetary asset out of doubt and it remains with the possessor. | {
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To state it differently, there is a a presumption of the rightful possession by the defendant ( hazakah ) the possessor of the object. 47 Should a Jew swear that he will not sell one of his assets and he sells it, the sale is void due to the fact that he transgressed his oath. See Rabbi Yitzhak ben Rabbeinu Peretz, Hagahot Mordekhai Shevuot , 3:784; Rema SA YD 230; Sma, SA HM 208:3. In other words, in pursuance to this position, we extract the asset from the muhzak , the buyer. In other words, the violation of an issur , namely noncompliance with an oath, impacts upon a monetary matter resulting in the muhzak losing his asset! However, others reject this view. See Shakh, SA HM 208:2; Teshuvot Avnei Nezer YD 2:308. Accordingly, the asset remains with the muhzak . Pursuant to beit din procedure, a party in a dispute regarding a monetary matter may argue as follows: "I want the court to rule in my favor, which is based on the position of Rabbi X who affirms my claim." | {
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Under certain prescribed conditions, we will accept his position even if Rabbi X's view represents the minority, and the majority rule differently. Such an argument, "he sides with me" (known as " kim li ") can be invoked either by the muhzak , who is in possession of the disputed item or by a beit din . 48 Regarding the authorization of a beit din to advance a plea for " he sides with me ," see Teshuvot Hikrei Lev 1, HM 38; Teshuvot Beit David HM 5. For additional authorities who either endorse or reject this position, see E. Batzri, Dinei Mamonot , vol. 4, 143, n. 3. In short, in monetary matters, we do not follow the majority, and the governing rule is that the plaintiff has the burden of proving his claim is ( ha-motzi mi-havero alav ha-re'ayah ) . The claim of " he sides with me " reinforces the defendant's presumption and is memorialized by Rema with the caveat that a dayan who has expertise in dealing with halakhic doubts ought to render his independent decision. 49 See Rema, HM 25:2. For the limitations upon advancing such a plea, see Sma, SA HM 25:16; Shakh, SA HM 25:17; Urim ve-Tumim , Kitzur Tokfo Kohen , ( HM , following section 25), 124; Teshuvot Yabia Omer , 7, HM 2:1; Dinei Mamonot , supra n. 48, 141–158. In sum, the recognition of the plea " he sides with me " reinforces that in a case of a double halakhic doubt regarding a monetary matter, we do not remove the object from the possessor. In fact, "even 1000 doubts ( halakhic ) will not extract money from the possessor." 50 Kitzur Tokfo Kohen 120; Netivot ha-Mishpat, Kelalei ha-Tefisah 24; Dinei Mamonot , supra n. 48, 151, n. 12. On the one hand, Urim ve-Tumim , supra n. 49, 123–124, argues that one cannot advance a plea of "he sides with me" regarding an opinion which is not cited by SA and Rema. However, some decisors claim alternatively that in a situation of a halakhic doubt one can submit such a plea. See File no. 1097040/11, Haifa Regional Beit Din, 9 Sivan 5778. Secondly, once parties agree to authorize a beit din to address their contentious matter, neither litigant may submit a plea of "he sides with me". See Teshuvot Darkhei Noam HM 15; R. Z.N. Goldberg, "In Praise of Compromise," (Hebrew) 1 Mishpetei Eretz 78, 79 (2002). See further, supra n. 48. Moreover, one is preempted from advancing such a plea against the accepted rabbinical decisor ( mara d'atra ). See Teshuvot ha-Ridvaz 2:825; Teshuvot Havot Yair 165; Teshuvot Yabia Omer 7, HM 2. | {
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On the other hand, when dealing with prohibitions ( issurim ), such as whether a beit din may obligate a husband to give a get , a party to the divorce or the beit din must refrain from advancing an argument of " he sides with me. " 51 Teshuvot Darkhei Noam EH 40; Knesset ha-Gedolah EH 82, ha-Gahot ha-Tur 13; Teshuvot Maharashdam YD 62; Teshuvot Ginat Veradim 1, YD 6. | {
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Moreover, it should be no surprise to find that the Talmud exhorts us to refrain from drawing an analogy (a hekesh ) between the two realms of monetary matters ( mamon ) and ritual issues ( issur ve-heter) : "no analogy in a matter involving ritual law may be established from a monetary matter," 52 Berakhot 19b. For exceptions to this rule, see E. Shochetman, "On analogy in decision-making in Jewish law and the Foundations of Law Act," (Hebrew), 13 Shenaton ha-Mishpat ha-Ivri 307, 324–344 (1988). and conversely, "no analogy in a monetary matter may be established from a matter concerning ritual law." 53 Ketuvot 46b. For exceptions to this rule, see E. Shochetman, supra n. 52. For example, we cannot invoke a plea "he sides with me" ( kim li ) regarding child placement because we are dealing with issurim , namely obligations between man and God as well as potential child endangerment. 54 Darkhei Noam , supra n. 51; Knesset ha-Gedolah, supra n. 51. See also, Teshuvot Binyamin Ze'ev 144; Teshuvot Maharik , shoresh 148. | {
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Comparably, in a monetary matter ( mamon), the contentious parties may choose to engage in compromise ( pesharah ), such as apportioning an asset between the two parties, while concerning a safek in an issue of issura , ritual law, one cannot raise a compromise between two parties. Moreover, whereas in matters of ritual law, an hour of emergency (a she'at ha-dehak ), we may rely upon a minority opinion, 55 Teshuvot Ma'sat Binyamin 44, 105; Teshuvot Re'em 36; Beit Shmuel SA EH 17:47; Teshuvot ha-Mabit 188; Sedei Hemed ha-Shalem, Kelalim, Ma'arkehet Kaf , 109–110. Cf. Helkat Mehokeik, SA EH 17:31. See further, this writer's Rabbinic Authority , vol. 3, 247–250, 252–256. in issues of monetary matters, we may invoke the rule that the plaintiff has the burden of proving his claim rather than relying upon a minority view. 56 Teshuvot Yakhin u-Boaz 2:33. Finally, the systemic rule is that in a case of doubt regarding a monetary manner we act leniently, while in a situation of prohibitions we act stringently. 57 Ketuvot 73b. The corollary to this rule regarding matters of prohibitions is that if the doubt emerges from an issue that is of a biblical nature (is de-oraita ) we resolve it stringently, whereas in a matter of doubt that arises from a matter of a rabbinic nature (a de-rabbanan ) we act leniently. 58 Berakhot 19b; Shabbat 34a; Beitzah 3b; Ketuvot 60a. As such, given the distinction between monetary issues and ritual matters, we cannot derive the halakhot of ritual issues from the halakhot of financial matters , and conversely we cannot derive the halakhot of monetary issues from matters of ritual law. | {
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In sum, halakhic doubt may reflect the notion that both opinions are true or that only one view is true. In cases of halakhic doubt regarding prohibitions which is the subject of this study, there exist specific halakhot which teach us that this realm of Halakhah is readily distinguishable from halakhic doubt concerning monetary matters. | {
"url": "https://www.sefaria.org/Rabbinic_Authority_V,_Part_1;_Rabbinic_Authority;_The_Vision,_Chapter_1;_The_varying_definitions_of_a_halakhic_doubt.64",
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The implication of our presentation is that the emergence of a doubt is interrelated with the issue being examined. In other words, should an individual be bereft of knowledge of Halakhah, a personal doubt arises as to how he should conduct himself. His ignorance of Halakhah does not constitute a halakhic doubt. 59 Taz SA YD 98:6; Shakh , ad locum 9; Shakh SA YD 110, Kelalei Sefek Sefeika 34. Even if the entire world is ignorant on a given matter, it is not deemed a halakhic doubt. See Beit Shmuel SA EH 154:34. Cf. Taz , op. cit.; Teshuvot Yabia Omer 7, EH 12. The halakhic doubt emerges from the differing understandings of credentialed and educated authorities who attempt to resolve what ought to be the Halakhah regarding a particular question. | {
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The foundations for invoking a double halakhic doubt to void a marriage | {
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"ref": "Rabbinic Authority V, Part 1; Rabbinic Authority; The Vision, Chapter 2; The foundations for invoking a double halakhic doubt to void a marriage 1",
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On July 29, 1999, the Beit Din ha-Rabbani ha-Gadol, the highest rabbinical court under Israel's Chief Rabbinate, addressed the case of a person who was married Jewishly in the Soviet Union, where the rabbis who officiated at marriages and divorces were unfamiliar with the relevant halakhot . Subsequent to getting divorced, she remarried, sired a daughter and immigrated to Israel. Upon reaching maturity and desiring to marry, the child submitted her parents' divorce papers to the Israeli rabbinate in order to be recognized as a member of the Jewish community and have her marriage recognized by the Rabbinate. As we know, in accordance with Israeli law, the Chief Rabbinate, accompanied by its institutions such as its network of battei din (rabbinical courts), has exclusive jurisdiction regarding matters of marriage and divorce. Consequently, we understand her request to receive recognition from the Chief Rabbinate. | {
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"ref": "Rabbinic Authority V, Part 1; Rabbinic Authority; The Vision, Chapter 2; The foundations for invoking a double halakhic doubt to void a marriage 2",
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Varying reasons were given by the beit din which allowed her to receive recognition. 1 Piskei Din Rabbanayim (hereinafter: PDR ) 21:10 One of the arguments on behalf of recognition offered by Rabbi Shlomo Amar, a member of the panel, is the articulation of a double halakhic doubt (hereinafter: a double doubt/uncertainty or a sefek sefeika ). The implementation of this technique allowed Rabbi Amar to engage in voiding the marriage ( bittul kiddushin ) as well as the divorce. In order to properly understand the halakhic background of his line of reasoning for voiding the marriage, we shall introduce the reader to a few concepts. | {
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"ref": "Rabbinic Authority V, Part 1; Rabbinic Authority; The Vision, Chapter 2; The foundations for invoking a double halakhic doubt to void a marriage 3",
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The establishment of a marital relationship between a Jew and a Jewess may be loosely said to be an agreement, albeit a very special one, which establishes "a personal status," known in halakhic parlance as a presumption of being a married woman ("a hezkat eishet ish "), based upon the willing consent of the parties. One of the numerous consequences of being accorded this status is that a wife cannot engage in an extramarital affair with another man, and a husband cannot take part in an illicit affair with another woman. Such behavior is deemed an act of adultery (" ne'uf ") and is a violation of Biblical law, i.e. an issur de'oraita . 2 Vayikra 18:20, 20:10; Sefer ha-Hinnukh , Mitzvat lo-Ta'aseh 34. | {
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"ref": "Rabbinic Authority V, Part 1; Rabbinic Authority; The Vision, Chapter 2; The foundations for invoking a double halakhic doubt to void a marriage 4",
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However, if the execution of the marriage ceremony is not conducted in a proper halakhic fashion, under certain conditions there emerges "a safek kiddushin, " loosely translated as a doubtful marriage. In other words, her presumption ( hazakah ) as a married woman is placed into doubt, or, to state it differently, there is a doubt on a biblical level (a safek de'oraita ) if she actually is married. In cases of doubt, under certain conditions, we apply the systemic rule: any doubt which emerges from a biblical matter is ruled stringently; a doubt which arises from a rabbinic matter we rule leniently ( kol sefeika de'oraita le'humra, kol sefeika de'rabbanan le'kula ). 3 Beitzah 3b. | {
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"ref": "Rabbinic Authority V, Part 1; Rabbinic Authority; The Vision, Chapter 2; The foundations for invoking a double halakhic doubt to void a marriage 5",
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As such, the question arises as to whether the application of the rule: any doubt which emerges from a biblical matter is ruled stringently ( kol sefeika de'oraita le'humra ) means that we rule stringently on a biblical level or on a rabbinic level? Is the presence of a doubt regarding the Halakhah ( sefeika de'dina ) to be distinguished from a doubt concerning factual reality such as a doubtful marriage (a safek kiddushin ), such that it will be resolved stringently on a biblical level? Or is it to be resolved stringently on a rabbinic level? | {
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A review of the responsa ( teshuvot ) of many later authorities ( Aharonim ) will show that it is their understanding that "the opinion of a few" (a da'at me'ut ) is that under certain conditions a biblical doubt (a sefeika de'oraita ) what the Halakhah ought to be is to be resolved stringently on a biblical level. 4 Yeshuot Ya'akov OH 17; Teshuvot Bnei Shmuel 41; Teshuvot Be'er Yitzhak YD 1, anaf 6; Teshuvot Hikrei Lev YD 1, 118, 260; Teshuvot Ktav Sofer OH 30; Torat ha-Shelamim , Kuntres ha-Sefeikot 9; Teshuvot Pnei Moshe 2:2; Teshuvot ha-Saba Kadisha 3:23; Teshuvot Shivat Tzion 49; Mishneh le-Melekh, Gerushin 8:11; Teshuvot Mishkenot Ya'akov OH 260; Kehunat Olam 78; Petah ha-Devir 1:190; Pnei Yehoshua, Hullin 10b; Erekh Shulhan YD 62; Teshuvot Binyan Olam YD 17; Teshuvot Divrei Hayyim 1, OH 8. For additional Aharonim who identify this position as the majority view, see Birkat Ya'akov 10. Cf. Teshuvot ha-Ridvaz 4:93; ha-Saba Kadisha , op. cit.; Teshuvot Yabia Omer 8, EH 12 (19). Well-known and well-respected early authorities ( Rishonim ) and later authorities ( Aharonim ) alike such as Rashi, Tosafot, Ramban, Rashba, Ran, Tur, Rabbi Y.E. Spektor, Rabbi Ya'akov Reicher, Rabbi A. Eiger, Rabbi Ya'akov of Karlin, Rabbi Y. Orenstein, Rabbi Shalom Schwadron and Rabbi Shalom Messas align themselves with this position. 5 Hiddushei ha-Rashba, Kiddushin 73a in the name of Rashi; Pri Hadash, YD 110 in the name of Rashi; Pri Hadash , YD 110, Kelalei Sefek Sefeika 1 in the name of Tosafot, 25; Birkei Yosef, OH 588 (20) in the name of Tosafot; Hiddushei ha-Ramban, Hullin 22a; Teshuvot R. Yosef me-Slutsk 37 in the name of Ramban; Teshuvot ha-Ridvaz 4:188 in the name of the Ramban; Teshuvot Maharit YD 1 in the name of Ramban; Hiddushei ha-Rashba , Kiddushin 73a, Hullin 53b; Torat ha-Bayit, Bayit Revi'i , sha'ar 1; Teshuvot ha-Rashba 1:401; Ran on Rif, Kiddushin 16b; Teshuvot ha-Ran 51; Tur YD 110; Be'er Yitzhak , supra n. 4; Torat ha-Shelamim , supra n. 4; Sefer Yam ha-Talmud le-Ba'alei Mefrashei Hayam , 64a; Teshuvot Beit Ephraim EH 1; Darkhei Teshuvah YD 110:105; Teshuvot Rabbi A. Eiger , Mahadura Tinyana 68; Mishkenot Ya'akov OH 260, EH 43; Yeshuot Ya'akov , supra n. 4; Teshuvot Maharsham 2:156, 3:95; Da'at Torah YD 57; Mizrah Shemesh , Beit ha-Safek (end). | {
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"ref": "Rabbinic Authority V, Part 1; Rabbinic Authority; The Vision, Chapter 2; The foundations for invoking a double halakhic doubt to void a marriage 7",
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On the other hand, there is the majority opinion, including: Bahag, Rif, Rambam, Rosh (possibly), Ra'vaad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya'akov Emden and Rabbi Ovadiah Yosef, who rule that under certain conditions (e.g. a doubt what the Halakhah ought to be), a biblical doubt (a sefeika d'oraita ) ought to be resolved stringently on a rabbinic level. 6 Ha'amek Sheilah 68 in the name of Bahag; MT, Tumat ha-Met 9:12 , Avot ha-Tumah 16:1 , Issurei Biah 18:17 , Kilayim 10:27 ; Teshuvot ha-Rambam 310; Alfasi, Pesahim 40b, Kiddushin 5b; Teshuvot Bnei Shmuel 42 in the name of Rosh; Teshuvot Mutzal me-Aish 12 in the name of Rosh; Sedei Hemed ha-Shalem , 5, Ma'arekhet Samakh , Kelal 10 (Cf. Piskei ha-Rosh Yoma 8:7, Teshuvot Ktav Sofer OH 30 and Teshuvot Beit Ephraim EH 2 in the name of Rosh); Ra'vaad, Tumat ha-Met , op. cit., Kilayim , op. cit.; Beit Yosef, Tur YD 228 in the name of Teshuvot ha-Ran 51; Teshuvot Yad Eliyahu of Lublin 49; Semag , Negative Commandments 121; Hiddushei ha-Ramah, Kiddushin 39a; Sefer Beit ha'Behirah, Shabbat 23a, Hagigah 4a, Kiddushin 5b; Hiddushei ha-Ritva, Rosh Hashanah 34b, Avodah Zarah 39b; SA OH 616:2, YD , 110:9, 302:1, Teshuvot Yabia Omer 6, OH 3(1) in the name of Shulhan Arukh; (Cf. Teshuvot Torat Hesed OH 3, EH 13 in the name of Shulhan Arukh) (Cf. Noam Siah, vol. 1, 252–275 who argues that it is unclear what Rabbi Karo's stance is concerning this issue) ; Teshuvot ha-Ridvaz 4:93; Teshuvot Ginat Veradim , Kelal 8; Birkei Yosef 184:1; Teshuvot Sheilat Ya'avetz 2:143; Teshuvot Kol Eliyahu 1, OH 6; Teshuvot Mutzal me-Aish 1:12; Teshuvot Hikrei Lev YD 1:87 (Cf. YD 2:4, 118); Teshuvot Ta'alumot Lev 2:15; Teshuvot Pnei Yitzhak 1, YD 9; Teshuvot Yabia Omer 1, YD 3, 6, EH 3, 6 YD 24. See also, Pri Megadim Petihah le-Birkot ha-Shahar ; Teshuvot Zikhron Yosef YD 19; Mizgeret Shulhan 110; Mahazik Berakha 589:6; Teshuvot Yabia Omer , 10, YD 6:9–10. Cf. Pri Hadash who claims that there is a consensus regarding halakhic doubts, even in pursuance to Rambam and Ra'avad that a doubt on the biblical level is to be treated stringently on a biblical level. See Pri Hadash, supra n. 5 in the name of the famous view of Ran on Rif, Kiddushin 5b. Subsequently, Pri Hadash changes his mind. There are over 25 additional "later authorities" ( Aharonim ) who either subscribe to this view and/or who state that this view is reflective of the majority of decisors. See Noam Siah 12 (2). In fact, some authorities note that the majority of decisors subscribe to this view. See Ridvaz , op. cit.; Pnei Yehoshua Pesahim 9b, s.v. ha'nu; Sheilat Ya'avetz op. cit.; Zikhron Yosef, op. cit. Cf. other decisors who argue that the opposing approach is the dominant view. See infra n. 13. | {
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Assuming that we are permitted to invoke a double doubt beyond those that are explicitly mentioned in the Talmud and among early authorities and it can be employed a priori ( le-khatehillah ), in pursuance to Rabbi Yosef Karo's ruling, a double uncertainty (a sefek sefeika ) can nullify a biblical prohibition. 7 In contradistinction to Shakh, SA YD 110, Sefeik Sefeika 36, we ascribe to the position that one can introduce a double doubt which is not explicated or mentioned in the Talmud and early authorities. See Kereti u-Peleti , Beit ha-Safek ; Beit Yitzhak , Sha'ar ha-Sefeikot , Sefek Sefeika 21; Pri Hadash, YD 110, Kelalei Sefeik Sefeika 18 in the name of Maharit; Teshuvot Yabia Omer 6, YD 24. Furthermore, we subscribe to the posture that one can invoke a double halakhic doubt a priori . See infra n. 9; Teshuvot Tashbetz 3:117; Pri Hadash, YD 110, Kelalei Sefeik Sefeika 4; Rabbi Y. Abulafia, Teshuvot Pnei Yitzhak OH 3; Shulhan Gavoah , Kelalei Safeik Derabbanan 93; Teshuvot Binyan Shlomo 13; Teshuvot Lev Hayyim 121; Teshuvot Perah Shushan EH Kelal 3, siman 2; Teshuvot Kol Eliyahu 1 YD 21; Teshuvot Hikrei Lev 1, YD 131. SA YD 110:4. Assuming that "a biblical doubt ought to be resolved stringently on a rabbinic level" applies to a doubt as to what the Halakhah ought to be ( sefeika de'dina ). 8 Hiddushei ha-Ritva, Gittin 46a; Teshuvot ha-Ran 51; Beit Yosef, Tur YD 228 in the name of Ran; Teshuvot Ein Yitzhak EH 22:18; Sheilat Ya'avetz , supra n. 6; Teshuvot Torat Hesed ( Lublin) EH 37 (end); Pri Hadash, supra n. 5, Kelalei Sefek Sefeika 1; Teshuvot Nahalat Yehoshua 6; Yabia Omer , supra n. 6. Cf. those who contend that in sefeika de'dina Rambam concurs that a safek de'oraita is resolved stringently on a biblical level. See Kapot Temarim , Sefeika De'oraita ; Teshuvot Hikrei Lev, YD 1:260; Teshuvot Beit Ephraim YD 75, EH 1; Mishkenot Ya'akov EH 43; Teshuvot Shoeil u-Meishiv , Mahadura Kama 1:256; Teshuvot Rabbi Akiva Eiger , Tinyana 68; Teshuvot Maharash Engel 2:1; Darkhei Teshuvah, YD 110, Kelalei Sefek Sefeika , 205; Pri Hadash , op. cit. In other words, according to these authorities, Rambam's view, supra n. 6, is only applicable to cases of factual doubt. "If there exists a double doubt one must rule leniently" is to be understood as meaning that the first doubt is converted from a biblical prohibition to a rabbinic one and results in a stringent position (namely that the matter is prohibited rabbinically) which is compounded by the second doubt which creates a rabbinic doubt, and therefore, by dint of rabbinic Halakhah (" din de'rabbanan ") one may rule leniently. 9 Shabbat 34a; Pnei Yehoshua, Pesahim 9b-10a, Ketuvot 9a; Teshuvot Shem Aryeh YD 2; Teshuvot Hemdat Shlomo EH 39 (30); Teshuvot Torat Hesed OH 20:3; Hazon Ovadiah 1:13; Teshuvot Sheilat Yavetz , supra n. 6; Teshuvot Torat Hesed of Lublin OH 7:4; Teshuvot Beit Ephraim EH 2; Teshuvot Birkat Yosef Landa YD 48; Teshuvot Ginat Veradim 8, s.v. ha'ta'am ha'sheni . Whether one can rule leniently regarding a rabbinic doubt a priori ( le-khatehillah ) or ex post facto ( be'di'avad ) regarding a double halakhic uncertainty ( sefeik sefeika ) and/or a rabbinic doubt is subject to controversy. See Teshuvot Yabia Omer 7, OH 42 (2). In other words, the ramifications of invoking a double doubt in a particular case is that the matter is permitted (" heter gamur ") without any taint of a prohibition (" issur "). 10 Rabbi Hayyim ben Attar, Rishon le-Tzion , Sefek Sefeika ; Torat Hesed , supra n. 8. As we have explained, this conclusion is based upon the fact that we adopted the position of Rambam and others that a biblical uncertainty (a sefeika de'oraita ) ought to be resolved stringently on a rabbinic level. 11 Pnei Yehoshua , supra n. 6; Teshuvot Torat Hesed OH 3:1, 7:4; Sheilat Ya'avetz , supra n. 6; Shem Aryeh , supra n. 9; Teshuvot Beit Yosef Landa YD 49; Beit Ephraim , supra n. 8; Teshuvot Amudei Eish , Kuntres ha-Sefeikot 7. In other words, there is a correlation between recognizing the effectiveness of a double uncertainty and one's posture regarding whether a biblical doubt is to be treated stringently on a biblical level or if it is to be treated as a rabbinic innovation. Until now, we have been arguing that in order for a "double doubt" to be effective resulting in a leniency, one must adopt the view that a biblical doubt is to be treated stringently as a rabbinic decree. | {
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On the other hand, espousing the view that a biblical uncertainty ought to be resolved stringently on a biblical level does not necessarily mean that the application of a double doubt will be ineffective. The consequent leniency associated with the implementation of a "double uncertainty" is due the rule of "following the majority" (" aharei rabbim le'hattot "). The existence of one doubt creates a situation of a 50/50 uncertainty (" ke-mehtza al mehtza dami "), while the second uncertainty then creates a majority which results in treating the matter leniently on a biblical level. 12 Rashba , supra n. 5; Hiddushei ha-Rashba, Eruvin 5b, s.v. ve-safek; Shakh, SA YD 110 , Kelalei Sefeik Sefeika 27 in the name of Rashba; Pri Hadash YD 110:49; Teshuvot Torat Hesed OH 3:4; Teshuvot Kol Eliyahu 2, YD 3. For alternative explanations regarding the effectiveness of the double uncertainty even according to those authorities who contend that a biblical doubt is resolved stringently on a biblical level, see Tal Hayyim , 372, 379–383. In accordance with many decisors ( Poskim) , this approach is the dominant understanding as to why the employment of a double uncertainty will be effective. 13 Teshuvot Binyan Tzion 1:14; Teshuvot Yabia Omer 6, YD 14, 7 EH 6:5; Taharat ha-Bayit 1, 135–136. That being said, it is unsurprising that some authorities who subscribe to the posture that a biblical doubt ought to be resolved stringently on a biblical level will understand the dynamics of a double doubt based upon the rule of the majority principle (" rov "). 14 Teshuvot Terumat ha-Deshen, Pesakim u-Ketavim 129 (end) in the name of Semag; Maharit , supra n. 5; Pri Hadash , supra n. 5, Kelalei Sefek Sefeika , 1. In other words, the effectiveness of a double halakhic uncertainty (a sefek sefeika ) may be based upon the majority and is unrelated to one's position regarding the debate as to whether a biblical uncertainty (a sefeika de'oraita ) ought to be resolved stringently on a biblical level or by virtue of being a rabbinic innovation. 15 Teshuvot Rabbi Yosef mi-Slutsk 48; Teshuvot Shemen Rokeah, Tlitai YD 3. | {
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Assuming that one endorses the view that a biblical doubt ought to be resolved stringently by dint of being a rabbinic decree, and therefore the deployment of a double doubt is operative, or that a double uncertainty is effective by virtue of its own inner halakhic logic unrelated to the ramifications of the existence a doubt regarding a biblical prohibition, are there grounds to void a marriage utilizing the mechanics of a double doubt in cases of a halakhic controversy? | {
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Some contend that when there is a presumption of a prohibition ( it'hazek issura ), 16 In the Tosefta and Talmud Yerushalmi the term used is " hu'khah " or a variant term such as " mo'khiah ". See Tosefta Mikvaot 2:6–7, Zuckermandel ed.; Talmud Yerushalmi Eruvin 3:4. such as when a piece of non-kosher meat mixes with two pieces of kosher meat, "even a thousand doubts" will be ineffective in providing a leniency, allowing the non-kosher meat to be consumed. 17 Sefer Issur ve-Heter 26:2; Darkhei Moshe Tur YD 57 (end); Mishneh le-Melekh, Tumat Tzara'at 2:1; Pnei Yehoshua , Kuntres Aharon, Ketuvot 3b; Pri Megadim YD 110, Sefek Sefeika 27; Teshuvot Hakham Tzvi , Likutei Teshuvot 113; Teshuvot Tzemah Tzedek EH 49:6, 188:6; Teshuvot Ahiezer 3:19; Rabbi S. Shkop, Sha'arei Yosher , Sha'ar 1, 18–19; Teshuvot Zivhei Tzedek YD 110; Teshuvot Heikhal Yitzhak EH 1:2(9). However, if there are three doubts, Shakh and others will render a lenient ruling. See Shakh, SA YD 110, Kelalei Sefek Sefeika , 29–30; Teshuvot Kol ben Levi 3; Teshuvot Kapei Aharon EH 5. On the other hand, numerous decisors claim that the application of a double halakhic doubt will be effective. 18 Darkhei Moshe , supra n. 17; Torat ha'Hatat 43:7; Teshuvot R. Akiva Eiger , Mahadura Kama 37; Pri Hadash , supra n. 5, Kelalei Sefek Sefeika 16; Kereti u-Peleti YD 110; Teshuvot Noda bi-Yehudah , Mahadura Kama EH 57; Teshuvot Ein Yitzhak 1, EH 22 (18); Get Pashut 129:13; Teshuvot Yabia Omer , 6, YD 23 (5) in the name of Pri Hadash, Maharit and Maharam ibn Haviv, EH 3: 12, 15. | {
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Clearly, there are decisors who will employ a double uncertainty in the case of a biblical prohibition. 19 Pri Hadash , supra n. 5, 49; Teshuvot Maharit YD 2. See infra n. 23. Moreover, as we mentioned earlier, the creation of a halakhic marriage establishes "a personal status," known in halakhic parlance as a presumption of being a married woman (a hezkat eishet ish ). As such, will the construction by an arbiter of a double uncertainty to permit an agunah to remarry be effective in the face of a presumption of a biblical prohibition ( it'hazek issura ), namely the prohibition of being a married woman? Implicitly or explicitly relying upon the view of Rabbi Mordekhai ben Hillel, 20 Mordekhai , Yevamot 21. Hence, it is of no surprise that Rabbi Mordekhai ben Hillel subscribes to the posture that sefeika de'oraita is to be resolved stringently on a biblical level. See Mordekhai, Yevamot , 88a. some decisors contend that the construction of a double halakhic doubt (a sefek sefeika ) under such circumstances will be ineffective. 21 Teshuvot Ma'sat Binyamin 38; Taz SA YD 110:15; Shakh , ad locum 62; Teshuvot Ranah 27; Teshuvot Marhash 30; Knesset ha-Gedolah, EH 68, ha-Gahot Tur 149 in the name of Tumat Yesharim; Pnei Yehoshua, Ketuvot, Kuntres Aharon 46; Avnei Miluim 27:18; Teshuvot Havot Da'at YD 110; Teshuvot Sha'ar Asher EH 1:29 in the names of Rabbis Alfandri, Ramaz Mahari Kubo and Simhat Yom Tov; Teshuvot Be'rakh Moshe 34. Cf. Teshuvot Shoeil u-Meishiv , 4, Helek 3:118 who argues that this posture requires further deliberation. | {
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On the other hand, assuming that we are dealing with a halakhic doubt concerning a biblical matter, one may act leniently on a biblical level while one must act stringently regarding rabbinic law. 22 Teshuvot ha-Ran 51; Beit Yosef Tur YD 228 in the name of Ran; Pri Hadash YD 110, Kelalei Sefeik Sefeika 1; Teshuvot Nahalat Yehoshua 6; Teshuvot Hikrei Lev YD 1:87; Teshuvot Pnei Yitzhak 1, YD 9; Teshuvot Kol Eliyahu 1 OH 6; Teshuvot Mikhtam le-David Paredo OH 17. In the wake of a halakhic doubt regarding a biblical matter, others contend that we act stringently on a biblical level. See Teshuvot Beit Ephraim EH 1; Pri Megadim, YD 384; 110, Sefeik Sefeika 25; Teshuvot R. Akiva Eiger , Mahadura Tinyana 68. In other words, if one subscribes to the view that a biblical doubt is to resolved stringently on rabbinic grounds, we will apply the same approach to a halakhic doubt. Similarly, if one endorses the contrasting posture that a biblical doubt ought to be resolved rabbinically in a strict fashion, we will apply the same view to a halakhic doubt. See Noam Siah 5 (10). Alternatively, as we explained earlier, in the text accompanying notes 14–15, the effectiveness of a double halakhic doubt may be based upon the majority rule and is unrelated to the controversy as to whether a biblical uncertainty ought to be resolved stringently on a biblical level or by virtue of being a rabbinic innovation. In other words, even the decisors who endorse the position that a biblical doubt ought to be resolved rabbinically in a strict fashion may concur that the effectiveness of a double halakhic doubt is based upon the principle of majority. As such, numerous decisors, Ashkenazic and Sephardic alike, argue that in the wake of a "double doubt" or a series of doubts as to what the Halakhah ought to be (known in halakhic terminology as " sefeika de'dina ") regarding the halakhic impropriety of a ceremony of betrothal and marriage ( seder kiddushin ve'nissuin ), may, under certain conditions, nullify the presumption of a married woman and thus, in effect, will allow the woman to remarry without receiving a get from her get recalcitrant husband. 23 Teshuvot Ein Yitzhak, 1 EH 24 (48) (release from a levirate marriage- halitzah ); Teshuvot Ein Yitzhak 1, EH 22 (18), 62; Teshuvot ha-Ranah 1:68; Teshuvot Pnei Moshe 2:51; Teshuvot Hikrei Lev 1, YD 130, EH 59; Teshuvot Maharashdam EH 33; Teshuvot Maharbil 21, 33, 48, 62, 64; Teshuvot Maharash 5, 8, 35, 48; Teshuvot Ba'ei Hayyai, YD 216; Teshuvot Perah Shushan EH 3:2; Teshuvot Sha'ar Asher , EH 1:29, 31; Get Pashut Gittin 129:13; Teshuvot Rabbi Akiva Eiger , Pesakim 37, Mahadura Tinyana 45; Teshuvot Beit Shlomo EH 37; Teshuvot Shem Aryeh EH 111; Kereti u-Peleti , YD 110; Pri Hadash , YD 110:5, 16; Teshuvot Tzemah Tzedek EH 1:55 (7); Teshuvot Yismah Lev 12; M. Yerushalamski, Teshuvot Minhat Moshe EH 11; Get Pashut 129:13; Knesset ha-Gedolah, EH 65, ha-Gahot Tur 22–23 in the name of a dozen decisors; M. Yerushalamski, Teshuvot Be'er Moshe , Kuntres Binyan Yerushalyim 18; Teshuvot Nediv Lev EH 8; A. Makovsky, Teshuvot Ohalei Aharon 1:19; Teshuvot Ahiezer 3:19 (release from levirate marriage- halitzah ); Teshuvot Rav Pealim EH 3:11 (end); Teshuvot Yabia Omer 3 EH 18, 6 EH 3 (8), 6, 8; Teshuvot Shema Shlomo 1, EH 6; S. Messas, " A doubt in coercion of a Get ," (Hebrew) 23 Tehumin 120, 123–124 (5763); Teshuvot Minhat Osher 1:73; PDR 21:10; File no. 1126792/1, Netanya Regional Beit Din, 11 Tishrei 5778; Teshuvot ha-Rishon le-Tzion 2:8 For additional authorities who endorse this posture, see numerous responsa, Ashkenazic and Sephardic alike cited in Sefer Rav Berakhot , 126; Mishpat ha-Get , vol. 3, 495–499; Teshuvot Yabia Omer 1, EH 3 (14), 6, EH 3 (9, 14–15), 6 (5) and this writer's Rabbinic Authority , vol. 4, 159, n. 47. In short, in the wake of a get recalcitrant husband, we deem the matter as "an hour of emergency" ( sh'at ha-dehak ) and ex post facto ( be-di-avad ) we can void the marriage based upon a double halakhic doubt. See Sedei Hemed , Ma'arekhet Get 30(6) and ha-Samekh 30(3) in the name of Rashba and Ridvaz. For the merging of the two halakhic concepts of an hour of emergency and ex post facto in the case of an agunah , see Teshuvot Shevut Ya'akov EH 110; Teshuvot Ein Yitzhak 1, EH 24 (30). For decisors who contend that a double doubt dealing with what the Halakhah ought to be can trump a presumption of the existence of a prohibition (a hezkat issur ), see Teshuvot Rabbi Akiva Eiger , Mahadura Kama 47; Pri Hadash , YD Shehitah 18. Cf. Pri Hadash , supra n. 5, Kelalei Sefek Sefeika , 16; Eshel Avraham OH 161:7 in the name of Pri Hadash. For the debate as to whether one may employ a double doubt regarding the classical agunah where the whereabouts of her husband are unknown, see Otzar ha-Poskim, EH 17:15, subsection 123 (9–30). Examples of this type of scenario may include under certain conditions the absence or the ineligibility of witnesses attesting to the establishment of betrothal ( eidei kiddushin ), witnesses failing to observe the prospective husband giving his prospective wife a ring, the propriety of utilizing a borrowed ring for the act of kiddushin or major flaws, either physiological or psychological, in the husband's persona unknown to the wife prior to the wedding. | {
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To state the above differently, as we mentioned, in the case of a double uncertainty, the first doubt converts the prohibition from a biblical prohibition to a rabbinic one, resulting in a stringent position by dint of rabbinic Halakhah . For example, if a doubt emerges regarding the validity of a kiddushin (loosely translated as marriage), one might have thought that the woman's presumption of personal status as a single woman is determinative, since in a case of a doubt we do not deviate from her status as a single woman. 24 Pri Hadash, supra n. 5 , Kelalei Sefek Sefeika. However, though she may remarry on a biblical level, nevertheless rabbinically she is required to receive a get before marriage due to a concern for the prohibition of being a married woman. 25 See Ran on Rif, Kiddushin 5b; Teshuvot Maharit 1:138. While a get is required by rabbinic law in this case, and therefore one cannot void a marriage based upon a doubt regarding the validity of the kiddushin , nevertheless, since on a biblical level the woman is permitted to remarry, we may utilize this ruling as a supporting argument (a senif ) to act leniently. 26 Teshuvot ha-Ridvaz 1:56; Teshuvot Maharashdam EH 11, 13. With the emergence of a second doubt based upon the dynamics of invoking "a double doubt" in accordance with certain preconditions, there may be a basis to void the marriage under certain conditions. In other words, the presumption of being a single woman allows for the employment of the double halakhic doubt to be effective and void the marriage. 27 See Get Pashut , supra n. 23; Knesset ha-Gedolah , supra n. 23; Teshuvot Yabia Omer 6, EH 6 (6). | {
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On the one hand, according to the dominant approach of Rambam and others, the voiding of the marriage would be based upon the rule that we act leniently regarding a rabbinic doubt. On the other hand, pursuant to Rashba and others, even though we are dealing with a case of a prohibition (" it'hazek issura "), a double uncertainty will be effective due to the application of the majority principle. 28 See supra text accompanying n. 18. | {
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Now that we conveyed the halakhic underpinnings of the well-trodden tradition to void a marriage based upon the employment of a double doubt in cases of a halakhic controversy regarding halakhically questionable aspects of a marriage ceremony or a husband's flaws ( mumim ), we may better understand Rabbi Amar's ruling in the case submitted to the beit din panel regarding his application of a double uncertainty. As we presented, the beit din addressed the case of a person who was married Jewishly in the Soviet Union, where the rabbis who officiated at marriages and divorces were unfamiliar with the halakhot regarding these matters. Subsequent to the person's divorce, she remarried, sired a daughter and immigrated to Israel. Upon reaching maturity and desiring to marry, the child submitted her parents' divorce papers to the Israeli rabbinate in order to be recognized as a member of the Jewish community and have her marriage recognized by the Rabbinate. | {
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Rabbi Amar's recognition of the child as a member of the Jewish community is presumably based upon the argument that she was not deemed to be a halakhic bastard (a mamzer , a child sired from an incestuous relationship). 29 Mishnah Kiddushin 3:12; SA EH 4:13. In a case of a woman who was betrothed in a ceremony which is characterized as a doubtful marriage (" kiddushei safek ") and subsequently sired a child from a third party, the child is "a doubtful bastard" (a safek mamzer ). 30 Tur EH 4; SA EH 4:24. Though biblically a doubtful bastard can be a member of the Jewish community, 31 Kiddushin 73a; Teshuvot Maharsham 1:69. however, rabbinically, the child cannot enter the community due to a doubt(s) concerning the act of kiddushin . 32 Kiddushin 74a; MT, Issurei Bi'ah 16:21. Nevertheless, there emerges a debate regarding the legitimacy (the kashrut ) of a doubtful bastard whether we rule stringently or leniently. 33 Otzar ha-Poskim, EH 4:24; Teshuvot Maharashdam EH 116. Implicitly aware of this controversy and concerned for the stringent opinion, in a pithy three lines Rabbi Amar concludes that given that in our case we have a double uncertainty regarding the kiddushin, we invoke the ruling of Rabbi Akiva Eiger that there is no concern for halakhic bastardy. 34 Pithei Teshuvah SA EH 4 in the name of Teshuvot Rabbi Akiva Eiger, Pesakim 128; PDR , supra n. 1, 22. As such, she would be accepted into the Jewish community. | {
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However, the primary thrust for her recognition is argued in seven pages by delineating a series of halakhic doubts in the kiddushin that transpired in her parents' marital ceremony in Russia. His posture is predicated upon two foundations. Firstly, well aware that the establishment of a marital relationship between a Jew and a Jewess may be loosely said to be a contract, albeit a very special contract, which establishes "a personal status," known in halakhic parlance as the presumption of a married woman ("a hezkat eishet ish "), Rabbi Amar aligns himself with the view that the employment of a "double doubt" will be effective to void the marriage in the wake of the existence of a presumption of being a married woman. 35 See text supra accompanying n 18 and n. 23. As such, given that the marriage was halakhically invalid, the child that was sired by the couple was born out of wedlock. In other words, whereas in secular law she would be labeled as a bastard, in Halakhah , the child would be legitimate and bereft of any taint of halakhic bastardy ( mamzerut ) due to the absence of matrimonial ties of her parents. | {
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Secondly, though absent from his presentation as well as from a responsum dealing with voiding a marriage as to whether a biblical uncertainty ought to be resolved stringently by dint of being of biblical origin or rabbinic decree, 36 Teshuvot Shema Shlomo 1, EH 6:10 Rabbi Amar argues that we employ a double doubt by virtue of its own inner halakhic logic. 37 See supra nn. 14–15. | {
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In light of the aforementioned foundations, Rabbi Amar meticulously reviews the doubts emerging from her parents' wedding ceremony. Given that the marriage ceremony was performed by a rabbi who was ignorant of the halakhot of performing a kiddushin , there were various doubts concerning the propriety of the kiddushin . Firstly, the learned men in this community testified that the witnesses required for validating the marriage (" eidei kiddushin ") were either relatives who are invalid as witnesses or nonrelatives who were equally ineligible to serve as witnesses. 38 PDR , supra n. 1, 23. | {
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Furthermore, among the questions asked was whether the prospective husband gave his prospective wife a ring that he had purchased, was the recitation of the kiddushin formula, which may be loosely translated as the man's designation of the woman as his wife (" harei at mekudeshet li . . .") recited by the man before the giving of the ring, and did the witnesses observe the giving of the ring and hear the words of the kiddushin formula? Lest one challenge these issues by arguing that there is an assessed expectation (an " umdana ") that the ceremony was performed properly, invoking Rema, 39 Rema SA EH 42:1 Rabbi Amar contends that with regard to matters of kiddushin we cannot rely upon an assessed expectation. 40 PDR , supra n. 1, 22. Following in the footsteps of Maharam of Rothenberg, 41 Teshuvot Maharam of Rothenberg 4:993. we may understand Rema's posture due to his concern for the wife having the status of being a married woman as well as her desire to marry any man. Based upon the above, there was no intent to be married halakhically . 42 Clearly, if the facts of the case indicate that there is a major assessment of expectation (an " umdana de'mukha ") that the parties intended that act of kiddushin ought to transpire, the kiddushin would be valid. See Hazon Ish EH 52:3; Teshuvot Ezrat Kohen 41; Teshuvot Minhat Osher 2:81–82. | {
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Lest one challenge his conclusion that there are ample doubts regarding the kiddushin by invoking the opinion that a double doubt regarding halakhic uncertainty will be ineffective when the double doubt as well as all the other doubts lead to the same result (" shem ehad "), namely the halakhic impropriety of the kiddushin , 43 The reasoning is that construction of "a double doubt" regarding at least two debates of what the Halakhah ought to be is to be construed as a single doubt concerning what the Halakhah ought to be. Hence, it is not deemed a double uncertainty. See Tosafot Ketuvot 9a, s.v. ve'ei; Y. ibn Lev, Teshuvot Maharbil 3:41, 51. Whether in fact Rabbi Yosef ibn Lev rejects this approach in his other rulings, see Teshuvot Maharashdam YD 91, EH 33; Teshuvot Maharam Alshakar 26; Teshuvot ha-Ranah 1:109. For additional responsa ( teshuvot ), see Yosef Da'at 10. numerous legists support Rabbi Amar's conclusion that it is valid. 44 Magid Mishneh, MT, Issurei Biah 3:2 in the name of Rambam; Teshuvot Be'er Yitzhak EH 6 (9); Teshuvot Ein Yitzhak 1, EH 7 (2); Teshuvot Torat Hesed OH 11 (7), 13 in the name of Rambam; Teshuvot Matteh Aharon 2:16; Teshuvot Maharashdam EH 33; Teshuvot Rabbi Akiva Eiger 37. | {
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"ref": "Rabbinic Authority V, Part 1; Rabbinic Authority; The Vision, Chapter 2; The foundations for invoking a double halakhic doubt to void a marriage 23",
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Finally, Rabbi Amar addresses the contention that they lived together for many years as a husband and wife and consequently, their engagement in intimate relations should be viewed as marriage via intercourse (" kiddushei bi'ah "). While it is true that the Mishnah Kiddushin 1:1 teaches us that one may consummate a marriage via having conjugal relations, this ruling is inapplicable. Firstly, today we do not establish a halakhic marriage via this method. 45 Teshu vot Beit Ephraim EH 42 in the name of Sha'agat Aryeh. See further, this writer's Rabbinic Authority , vol. 3, 237. Secondly, the parties' intent was to establish the marriage based upon the ceremony of kiddushin occurring under the wedding canopy (under the hupah ). Since that ceremony was not performed in a proper fashion, consequently the marriage never materialized. 46 See infra chapter 4C, text accompanying notes 48–63. | {
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In conclusion, explicitly following the halakhic tradition (a mesorah ) outlined above, 47 See text supra accompanying n.23. Finally, unmentioned in Rabbi Amar's ruling, there exists a clear tradition amongst the authorities that one may implement a double halakhic doubt in situations of halakhic bastardy. See File no. 102-59, Piskei Din-Yerushalayim, Dinei Mamonot and Be'rurei Yahadut, 217, 226 (Rabbi O. Yosef's opinion); Teshuvot Minhat Osher 1:4(4). May one advance the argument of a double doubt when it contradicts the ruling of Shulhan Arukh? If we accept the rulings of Shulhan Arukh as final and thus dismissive of contrary opinions (see Teshuvot Maharif 59; Teshuvot Mishpat u-Tzedekah be-Ya'akov 2:5; Teshuvot Ohel Yosef YD 30; Rabbi Krochmal, Teshuvot Tzemah Tzedek 9; Teshuvot Havot Yair 165), then one cannot utilize his position to establish a halakhic doubt, much less a double halakhic doubt. On the other hand, if one accepts a Shulhan Arukh's judgment as a halakhic -judicial determination between differing opinions (see Rabbi H. Sofer, Zekhor le-Avraham , 65–111, 5760–5761) implicitly we may be dealing with the resolution of a biblical halakhic doubt and therefore, one may join this doubt with another doubt and establish a double doubt. In other words, Rabbi Yosef Karo, author of the Shulhan Arukh may act under certain conditions leniently if he knew that there was a second halakhic doubt. See Teshuvot Hikrei Lev 1, YD 127; Teshuvot Nediv Lev 2, HM 63; Teshuvot Yabia Omer 9, YD 6:5. Based upon the latter position, Rabbi O. Yosef invokes on numerous occasions a double doubt to establish a leniency even contrary to the expressed ruling(s) of Shulhan Arukh. See Teshuvot Yabia Omer 2, OH 8(18), 3, OH 28(17), 5 YD 15(1), 8, OH 8(2). For others who employ a double doubt even contrary to the view(s) found in Shulhan Arukh, see Rabbi Yitzhak Yosef, Ein Yitzhak , 3:115–116 in the name of numerous authorities. Alternatively, one may contend that upon rendering a decision, Rabbi Karo himself was aware of combining the halakhic doubt emerging from one controversy with the halakhic doubt produced by a second dispute. Since the matter was a case of a double halakhic doubt, Rabbi Karo would have resolved the matter leniently. Said conclusion is based upon the grounds that a double halakhic doubt even on a biblical level mandates leniency. See Yabia Omer 9, OH 108(5). Moreover for example, a review of Rabbi Yosef Karo's rulings memorialized in SA EH 39:1–6 will demonstrate that he does not address explicitly whether there is a basis for voiding a marriage under certain conditions if a prospective husband fails to disclose to his prospective wife before the marriage that he possessed certain major flaws (a case of kiddushei ta'ut ). Similarly, a review of his rulings in Even ha-Ezer will demonstrate that Rabbi Karo does not stake out a position whether the Talmudic notion of a clear expectation ( umdana demukhah ) that "upon this assumption she did not betroth herself" ( ada'ata dekhahki lo kidshah nafshah ) may serve under certain conditions a vehicle to void a marriage. The emerging question is whether one can invoke a double halakhic doubt when both the above techniques to void a marriage have not been dealt with explicitly in Shulhan Arukh's judgments? Given that Rabbi Karo neither articulated his position regarding this case of "a marriage in error" nor his view regarding a wife's clear expectation, there exists no logical reason to refrain from deploying a double halakhic doubt to void a marriage, assuming other conditions are applicable in the particular case to allow for voiding the marriage. To state it differently, regardless of whether the Shulhan Arukh's decisions are construed as final or a resolution of a halakhic doubt, in the event that Shulhan Arukh does not address a particular issue, the rabbinic consensus is that there emerges a halakhic doubt which can be joined with a second halakhic doubt to create a double halakhic doubt.(This conclusion is premised upon the fact that the particular arbiter endorses utilizing a double halakhic doubt to void a marriage under certain conditions). Rabbi Amar utilizes the technique of discovering a series of doubts as a vehicle to transform the child's mother from a married woman into a single woman, thereby eliminating the concern of halakhic mamzerut ( halakhic bastardy) from the child's status. 48 Based upon the foregoing presentation, we have outlined the foundations for invoking a double halakhic doubt as a vehicle to void a Jewish marriage. Moreover, the adoption of the position that a halakhic doubt emerging from a biblical matter may be resolved strictly on a rabbinic level equally extends to reliance upon a single view even if the matter is one of a biblical nature. Said conclusion is based upon a conflation of two postures. Firstly, as we know, according to numerous decisors, the application of the procedural rule "we follow the majority" is limited o resolving issues within the confines of a rabbinical court proceeding. See Hullin 11a; Sefer ha-Mitzvot of Rambam , mitzvah 175; Teshuvot ha-Rashba 2:104; Beit Yosef, Tur HM 13 (end) in the name of Rashba; Teshuvot Maharalbah 147; Teshuvot Torat Emet 207; Get Pashut , Kelalim, kelal 1:5. Cf. Teshuvot ha-Ridvaz 4:116. Therefore, in the absence of a give and take among disputants and/or if the controversy is intergenerational, the majority rule is inapplicable according to Torah law. Subscribing to this opinion and endorsing the above position that a doubt which arises from a biblical matter we may rule leniently on a rabbinic level, argues Rabbi O. Yosef, we may void a marriage based upon a reliance upon a minority view concerning a biblical matter. See Teshuvot Yehaveh Da'at , at 1 Kelalei Hora'ah, nos. 16–17. For further discussion regarding the import of a single opinion in a biblical matter, see this writer's, Rabbinic Authority , vol. 3, 239–262. The second implicit premise of invoking a double doubt in order to void a marriage is that the beit din must initially identify at least two grounds for divorce which in effect give credence to a wife declaring "a marriage in error" or "on this understanding she did not give herself in marriage" and therefore, the execution of a get is only required on rabbinic grounds lest the public infer that a married woman is exiting her marriage without a get. See Teshuvot Devar Eliyahu 48; Teshuvot Ahiezer 1, EH 27. Given that the giving of the get is only mandated rabbinically, consequently, we may deploy a double doubt and void the marriage based upon the foundations that we have outlined in our presentation. See supra pp. 38–51. For an alternative rationale for mandating the execution of a get on rabbinic grounds, see Teshuvot Ein Yitzhak 1, EH 24(43); Iggerot Moshe EH 3:48. | {
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The employment of a double halakhic doubt regarding get coercion in order to void a marriage | {
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Addressing the situation of a husband who failed to disclose to his wife prior to their marriage that he was convicted for child abuse, the Yerushalayim Regional Beit Din , a rabbinical court under Israel's Chief Rabbinate explores the possibility of whether such a flaw, marked by deception, would be grounds to coerce a get . 1 File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013. In this ruling authored by Rabbi Y. Goldberg, an internationally respected authority regarding get coercion, briefly outlined the dynamics of utilizing a double halakhic doubt regarding get coercion in voiding a marriage. Subsequently, Rabbi Goldberg reaffirmed the employment of a double halakhic doubt concerning get coercion as a means to void a marriage in his work, Elu She-kofin Le-hotzi , Yerushalayim, 5773, 50–51, 131, n. 18. To understand the background of this decision and its implications for employing a double halakhic doubt concerning get coercion as a vehicle to void a marriage, let us present a few halakhot . | {
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1. The nature of a get compulsion order | {
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Unlike American law, where a civil divorce is a decree of a civil court, Halakhah requires the volition of the husband and wife to dissolve a marriage. 2 Rubin v. Rubin , 75 Misc. 2d 776, 348 N.Y.S. 2d 61, 64 (Fam. Ct. 1973). For the requirement of the husband's volition, see SA EH 119:3, 6. Regarding the wife's volition, see Teshuvot ha-Rosh 42:1; Rema , SA EH 119:6. See further, J. David Bleich, "Jewish Divorce: Judicial Misconceptions and Possible Means of Enforcement," 16 Conn. Law Rev . 201 (1984), who demonstrates how various American courts misconstrue the nature of a Jewish bill of divorce. That being said, one of the ramifications of marriage is the creation of the status of a married woman (an eishet ish ) which means, amongst other matters, that the decisor (the Posek) must tread cautiously in releasing a married woman from the bonds of matrimony prior to ascertaining whether there are grounds for executing a get . Absent any grounds for permitting the divorce, should a get be executed it may be viewed as a coerced get (a " get me'useh "), and according to the majority of authorities that get would be null and void on biblical grounds. 3 For a list of these authorities, see this writer's Rabbinic Authority: The Vision and the Reality , vol. 3, 30, n.11. Therefore, should the wife rely upon this get and subsequently remarry and have children, her offspring would be halakhically stigmatized as halakhic bastards ( mamzerim ), children born from incestuous relationships and would be living in sin. 4 MT, Gerushin 10:4, Issurei Bi'ah 15:7, 21. In other words, the biblical prohibition associated with the presumption of being a married woman remains intact. 5 SA EH 134:1, 5, 7; Beit Shmuel , ad locum, 10. As such, we can understand why the beit din panel understood that in the event that there is a halakhic doubt regarding whether one is permitted to coerce a get or not entails a biblical doubt. Should an arbiter err in mandating get coercion in a particular case, it results in the commission of a biblical infraction which produces a coerced bill of divorce. 6 However, regarding prohibited marriages such as a kohen who marries a divorcee, or in situations where Halakhah mandates that there are grounds to coerce a get , then there will be a beit din ruling of get coercion and the coerced get will be valid. See SA EH 154:21, Rema ad locum; Beit Shmuel , ad locum 34. As we know, in the face of a dispute whether we coerce a get in a particular case, we are dealing with a biblical doubt. See Teshuvot Avodat Gershuni 39; Pithei Teshuvah SA EH 154:4. Given the existence of said doubt, the concern to avoid producing a coerced get emerges. See further infra n. 45. Consequently, it is unsurprising to encounter that if at all possible a beit din or rabbinic authorities would join various grounds for divorce together ( tziruf ilot gerushin ) in order to mandate get coercion. Each ground for divorce is self-sufficient to serve as a basis for get coercion. Yet, due to the specter of a coerced bill of divorce in order to strengthen the ground (and in effect, the ruling) we join it with a second ground or additional grounds for divorce. See Teshuvot ha-Rosh 35:1, 73:6; Teshuvot Beit Yosef, Yibbum and Halitzah 2; Rabbi E. Ashkenazi, Teshuvot ha-Rema 96; Teshuvot Betzalel Ashkenazi 20; Teshuvot Tzemah Tzedek EH 262; Teshuvot Ne'eman Shmuel 66; Piskei Din Rabbanayim (hereinafter: PDR ) 1:33, 38, 4:244, 251, 9:171, 184. For a lively exchange regarding the parameters of joining grounds for divorce in order to coerce a get , see File no. 467862/1, Netanya Regional Beit Din, January 16, 2011. In effect, upon invoking more than one ground for divorce, we may coerce a get based upon the existence of a double biblical doubt. If we are dealing with two doubts, each ground is subject to controversy whether get coercion is appropriate. For example if we are addressing whether we can coerce a get from a husband who engages in philandering and spousal battery, there are two halakhic doubts. Firstly, it is an uncertainty whether the Halakhah follows those decisors who claim that one can coerce a batterer to give a get . And should one argue that you cannot coerce a get under such circumstances, maybe the Halakhah is in accordance to those legists who contend that one can coerce a philanderer to give a get . See Teshuvot Noseh ha-Ephod 32. Whether one can void a marriage in a situation of a double biblical doubt is subject to debate. See Teshuvot Oneg Yom Tov 167; Sedei Hemed , Get 30 (6). See further infra text accompanying notes 45–55. | {
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The outstanding question which remains is if a beit din renders a compulsion order which is halakhically proper, what is the consequence of this ruling? Does a husband's failure to comply with the compulsion order render the marriage annulled ( hafka'at kiddushin ) or not? | {
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To reply to these questions, we need to address the basis for justifying a get compulsion order. Seemingly, the ongoing discussions and debates in Halakhah relating to the grounds to compel a divorce fly in the face of our conclusion that the execution of a Jewish divorce is a consensual process. How does a beit din compel a spouse to give or accept a get if the voluntary agreement of the parties is required? | {
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Relying upon the Talmud's validation of coercion regarding a sales transaction ("it is reasonable to assume that under the pressure he really resolved in his mind to sell"), 7 Bava Batra 48b. numerous authorities, ( Poskim ) conclude that this reasoning also applies to matters of divorce. In other words, consent stemming from coercive measures is to be construed as acting voluntarily in giving a get and is in consonance with what constitutes a willingness to accept Halakhah . 8 Hiddushei ha-Ramban, Yevamot 53a in the name of yesh omrim ; Hiddushei ha-Ritva, Yevamot 53a; Hiddushei ha-Rashba Kiddushin 50a, Yevamot 53a; Tosafot, Bava Batra 48a, s.v. ileima ; Piskei ha-Rosh, Bava Batra 3:51; Beit ha-Behirah , Yevamot 53a; Magid Mishneh, MT, Issurei Bi'ah 1:9. For a similar view in other realms of Halakhah , see Tosafot, Avodah Zarah 54a; Teshuvot ha-Rivash 387; Teshuvot Maharik ha-Hadashot 29. | {
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One avenue to validate coercion is for a wife to pay for her get . As we know, concerning a sales transaction in a situation of duress, he resolved to execute the sale because he was paid for the item (" agav oneseh ve-zuzei gamar u-makneh "). 9 Hiddushei ha-Rashba, Bava Batra 47b. Whether the coercing party must simply obligate himself to pay or must actually remit payment is subject to debate. 10 Rema, SA HM 205:1; Sma SA HM 205:5; Shakh, SA HM 205:2. However, the consensus is that the duty to pay or the actual repayment will bring finality to a sales agreement executed under duress. The same conclusion ought to apply to a divorce agreement executed under duress in order for it not to run afoul of the strictures of a coerced get . 11 Tosafot Bava Batra 48a, s.v. ileima; Teshuvot Tashbetz 35; Ohr Zarua 1:754; Teshuvot Maharah Ohr Zarua 126; Teshuvot ha-Rid 22; Beit Yosef, Tur EH 134 in the name of Rashba; Teshuvot ha-Mabit 1:76; Teshuvot Avodat ha-Gershuni 35; Beit Meir EH 134 (end); Teshuvot Mikhtav me-Eliyahu , Sha'ar 7, siman 15; Teshuvot Avnei Nezer EH 167:6; Teshuvot Beit Ephraim EH 125; Iggerot Moshe EH 1:37, 3:44, 4:106; Teshuvot Yabia Omer 1, EH 10:11. Cf. Beit ha-Behirah Bava Batra 48a. To date, once a beit din under Israel's Chief Rabbi's network of rabbinical courts obligates a Jewish divorce, in the light of earlier authorities, the panel will attempt to persuade the wife to remit money or other benefits to the husband in order that he would be willing to give a get . 12 Teshuvot Tashbetz 1:1; Teshuvot ha-Rosh 35:2; Teshuvot Hemdat Shlomo EH 80 (2); Teshuvot Tzemah Tzedek EH 262, 263; PDR 3:13, 5:71, 7:111, 8:36, 9:65, 4:106; File no. 467862/1, Netanya Regional Beit Din, 11 Shvat 5771. See further, this writer's Rabbinic Authority , vol. 1, 151–152. See the addendum. For a divorcee's monetary relief from the consequences of an exploitative divorce agreement, see this writer's, Rabbinic Authority , vol. 3, 82–96. | {
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One of the classic rationales given for this anomaly of being able to coerce a get , despite the fact that divorce must be based upon the parties' consent, is briefly alluded to in the Talmud 13 Bava Batra, supra n. 7. and is expanded upon by Rambam who writes: 14 MT , Hilkhot Gerushin 2:20. (Cf. Sefer ha-Mitzvot , Positive Commandment 222; MT, Gerushin , introduction) Precedential opinion may be found in Rashi, Kiddushin 50a. Various arbiters agreed with Rambam's understanding. See Tosafot Rid, Gittin 88b; Yad Ramah, Bava Batra 48a; Teshuvot Tashbetz 2:68; Netivot ha-Mishpat, SA, HM 208, Biurim 9. Explicit in this ruling is that the imposition of coercion of a get serves as an illustration of a means to enforce compliance with a religious commandment. See also, Tosafot Bava Batra 48a, s.v. elemah; Teshuvot Maharit Zahalon 83. In other words, there is a commandment to become divorced under certain conditions. Cf. others who emphasize that the commandment is to be divorced in a procedurally proper fashion. See Sefer ha-Hinnukh 455. Alternatively, given that as a member of the Jewish convenant faith community, we are responsible for our fellow Jew which encompasses his performance of commandments ( arevut ), we are mandated to coerce the noncompliant to fulfill his divine obligations such as divorce if so required. See Teshuvot Hikrei Lev OH 1:48. | {
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A person regarding whom Halakhah indicates that we should force him to divorce his wife and who refuses to divorce, a beit din in every place and at every time beats him until he says "I am willing" and he writes a get and this get is valid . . . Why is this get not void, as it was the product of compulsion . . . ? Since we do not talk of compulsion apart from one who was pressured and coerced to do a thing that he is not commanded by the Torah to do—for instance someone who was beaten until he executed a sale or donated a gift. However, in the case of one whose evil inclination drives him to avoid doing a religious commandment or to commit a sin, and was beaten until he complied with his duty . . . this (subsequent conduct) is not compelled from him rather he compelled himself due to bad judgment. Therefore, someone who does not desire to divorce (when Halakhah states that he ought to divorce – AYW), it follows from the fact that he wants to be part of the community of Israel that he wants to perform the religious commandments . . . and it is his (evil – AYW) inclination that is driving him and because they beat him until his inclination was subdued and he stated "I am willing" he has divorced willingly. . . . | {
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Aware of the doctrine of the consensual nature of halakhic divorce as well as the legitimacy of a beit din compelling divorce under certain prescribed conditions, Rambam introduces the notion that one must distinguish between "the real will" and "the actual will" of a Jew who is committed to Halakhah . The real will of this Jew is to comply with the dictates of our halakhic tradition ( mesorah ), including—but not limited to—delivering (or receiving) a get if Halakhah mandates such an action. However, his actual will, which may be driven by desires that are beyond his control, direct him (or her) to disobey the Halakhah . In such circumstances, by coercing the miscreant to obey the beit din by acquiescing to the divorce, we have not forced him (or her) to do what he does not want; on the contrary, we have enabled him (or her) to do what he (or she) really wants! As Rambam explains, the logic behind the legitimacy of a coerced get is that the husband does indeed want in his heart of hearts to obey the teachings of Torah scholars, mitzvah le'kayeim divrei hakhamim . And others have proffered the same reason for validating a coerced get . 15 Tosafot ha-Rid, Gittin 88b; Teshuvot Tashbetz 2:68; Teshuvot Ralbah 36. Clearly, the implication of staking out this position precludes the possibility of freeing a woman to remarry without the giving of a get . The raising of a doubt(s) regarding the validity of the marriage will not lead to the dissolution of the marriage without a get . In fact, whether our Torah scholars will mandate get coercion in a situation of what may be loosely translated as a doubtful marriage ( safek kiddushin ), such as a husband who fails to disclose to his wife prior to marriage that he has epilepsy or is impotent, is a matter of debate. 16 Teshuvot Maharam of Rothenberg , Cremona ed., 77 in the name of Rav'yah; Teshuvot Shevut Ya'akov 1:101; Teshuvot Avnei Nezer EH 176:6; A. Sheinfeld, "Obligating a Get in a doubtful marriage," (Hebrew) 9 Shurat ha-Din 158 (5765). Y. Goldberg, Elu she-Kofin Le-hotzi , (Hebrew) Yerushalayim: 5773, 277–287. According to certain decisors, the possibility of voiding a marriage under such circumstances is found explicitly or implicitly to be unacceptable. 17 See Elu she-Kofin Le-hotzi, supra n. 16, 113–114, n.19. | {
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One of the implications of adopting Rambam's view is that the propriety of get coercion is predicated upon the fact that a husband must be a committed member of our covenant faith community. Should he be an apostate, one cannot posit that his real will is to comply with Halakhah and consequently validate the coercion of a get . 18 Teshuvot Maharitz 1 : 83; Mikhtav Eliyahu, Gittin , Sha'ar 7:15; Teshuvot Hatam Sofer EH 2:60; Teshuvot ha-Gershuni 39. Cf. Ohr Sameah , Gerushin 2:20. As such, in dealing with a nonobservant Jew, some decisors have concluded that one cannot coerce a get . 19 Teshuvot Mahaneh Hayyim 2, EH 1; S. Yisraeli, " Get coercion in Halakhah ," (Hebrew), 2 be - Tzomet ha-Torah ve-ha-Medinah , 108 (5751). Hence, it is of no surprise that Rabbi Yosef Colon seeks another reason to validate get coercion, concluding that the imposition of coercion will annul the marriage ( hafka'at kiddushin ). 20 Teshuvot Maharik , shoresh 63. Other authorities, such as Rabbi David ibn Zimra, argue that in a situation of a get recalcitrant husband who has a polypus (whose nose or mouth has a repulsive smell) and the like which engenders repulsiveness, it is incumbent to coerce a get which means for these decisors that the marriage is annulled. 21 Teshuvot ha-Ridvaz 4:1228 (=1:157); Teshuvot Tzemah Tzedek EH 226; Hiddushei ha-Ramban Yevamot 46b; Hiddushei ha-Rashba Yevamot 46b, s.v. dilma ; Hiddushei ha-Ritva Yevamot 46b; Teshuvot Betzalel Ashkenazi 124; Teshuvot Bah ha-Hadashot 92; Netivot ha-Mishpat HM 1; Teshuvot Tzemah Tzedek EH 226. Cf. Teshuvot Be'air Yitzhak EH 10 (3); PDR 15:145, 157 (Rabbi Sha'anan's opinion). Rabbi Meir Urbach argues that get coercion is based upon marital annulment as well as the mitzvah le'kayeim divrei hahamim . See Imrei Binah, HM, Dayanim 1. To state it differently, the solution of marital annulment is not only raised concerning a Torah nonobservant Jew but equally with regard to a Torah observant husband who possesses a major flaw(s) ( mum gadol ) physiologically, or for that matter psychologically, in his personality. | {
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Adopting the notion that get coercion entails marital annulment, the emerging question is whether a get has to be executed, or if marital annulment suffices and she is free to remarry without receiving a get . Under what conditions can this annulment transpire? | {
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A cursory review of its application in Talmudic times will provide an answer to these questions. Should a husband appoint an agent to deliver a get to his wife, as long as the get did not reach the wife, according to Biblical halakhah , he is authorized to cancel the get in the absence of the agent and without the wife's knowledge. Given that she may marry someone else in the interim and her children from the second marriage would be halakhic bastards, Rabban Shimon ben Gamliel introduces as a rabbinic legislation ( takanah ) that the voiding of the get may only be done in the wife's presence. What is the halakhic consequence of the cancellation of the get in violation of the legislation? According to Rabbi Yehuda ha-Nasi, the get is null and void even though the legislation was voided and consequently the wife could not remarry. However, in pursuance to Rabban Gamliel, the get is valid, although biblically the get is null. 22 Gittin 33a; Yevamot 90b. | {
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A second Talmudic case where kiddushin was annulled at the time of divorce deals with a husband who gives a get to his wife on his deathbed but then recovered from his illness. Rabbi Huna claims that the get ought to be like a deathbed gift, which if he recovers ought to be invalidated. On the other hand, Rabba and Rava disagree, arguing that a deathbed get is to be distinguished from a deathbed gift which remains valid even after the husband recovers. However, they agree that on biblical grounds the get is invalid. Nonetheless, our Sages are empowered to nullify the kiddushin , permitting the wife to remarry another man. 23 Gittin 73a. | {
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The common denominator of these two cases recorded in the Talmud is that we are dealing with the authority of the rabbis to annul a marriage ( hafka'at kiddushin ) and that the annulment is accompanied by the husband giving a get to his wife against his will. 24 Rashi, Ketuvot 3a, s.v. kol hamekadesh ; Rashi, Gittin 33a, s.v. adatei de'rabbanan mekadesh ; Tosafot Ri ha-Lavan , Ketuvot 3a, s.v. kol ha-mekadesh ; Hiddushei ha-Rashba , Ketuvot 3a; Teshuvot ha-Rashba 1:1162; Hiddushei ha-Ramban, Ketuvot 3a; Shitah Mekubetzet, Ketuvot 3a in the name of Ritva, Ra'ah, and Ramban; Beit ha-Behirah, Ketuvot 3a; Hiddushei ha-Ra'ah, Ketuvot 3a; Pnei Yehoshua, Ketuvot 3a; Yam shel Shlomo Ketuvot 3:5. Invoking the term annulment ( hafka'at kiddushin ) should not be confused with the term voiding a marriage ( bittul kiddushin ) in which a decisor is authorized to void a marriage by deploying the tool of "a mistaken marriage" ( kiddushei ta'ut ), a wife's clear expectation ( umdana ) regarding an emerging physiological/psychological condition or inappropriate behavior after the onset of the marriage, by invalidating the act of kiddushin (e.g. the absence of eligible witnesses standing under the wedding canopy) or the employment of a double doubt. Marital annulment, on the other hand in contemporary parlance entails the propriety of retroactively nullifying the marriage of a recalcitrant husband who refuses to give a get . In Talmudic and post-talmudic the technique was employed in other contexts. See this writer's Rabbinic Authority , vol. 3, 135, n. 1. See also, File no. 905457/10, Tel Aviv-Yaffo Regional Beit Din, September 11, 2017 who astutely distinguishes between the two concepts. Upon addressing whether there are grounds for voiding a marriage in a particular situation, from time to time some authorities utilize the term of marital annulment. The employment of this technique within the context of voiding a marriage is beyond the scope of our presentation. Unlike the incident of the kiddushin executed under duress, where the annulment transpired at the time of the questionable kiddushin and without a get , 25 Whereas we mentioned in our presentation two cases of marital annulment which mandate the giving of a get , albeit a flawed get , nonetheless the two other Talmudic cases recorded in Yevamot 110a and Bava Batra , supra n. 7 dealing with annulling a kiddushin due to a prospective husband acting inappropriately during the time of the kiddushin does not require the giving of a get . Lest one argue that we are empowered to annul a marriage without a get in other situations such as an agunah where a husband refuses to give a get , our authorities rule that annulment. There are instances where our authorities utilize language of annulment when engaging in argumentation to void a marriage. See Teshuvot Nishmat Hayyim 126; Teshuvot Zekan Aharon , Mahadura Tinyana EH 104; Teshuvot Maharsham 6:159. This matter requires further deliberation. In short, whereas under certain conditions a beit din is empowered to void a marriage, namely free a wife to remarry without a get , a beit din is proscribed from annulling such a marriage since a get is mandated and the husband is refusing to give one to his wife. the annulment in the other case happened after the kiddushin and a get was required. | {
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Given that our case of the Yerushalayim Regional Beit Din deals with marital issues emerging a long time after the kiddushin , and as such is similar to the case of the cancellation of the get in the absence of its deliverer and a deathbed get , is annulment permissible? In the wake of the view that get coercion is based upon marital annulment in the beit din situation, are the grounds for authorizing marital annulment accompanied by the giving of a get today rooted in get compulsion on biblical or on rabbinic grounds? Prior to the fourth or fifth century C.E., rabbis received their authority to resolve matters from their immediate predecessors who "laid their hands" upon them, a process dating back to the time of Moshe who ordained Yehoshua. Given that there is the presumption of a married woman, according to Rabbi Yitzhak Lampronti, arbiters weren't authorized to annul a marriage in the light of a double uncertainty or even a series of doubts. 26 Pahad Yitzhak, vol. 5, Safek , 107b. Though Pahad Yitzhak's posture addresses a case which there are factual uncertainties, a fortiori , his view ought to equally apply to a situation entailing a series of halakhic doubts. With the lapse of classical rabbinic ordination ( semikhah ), the Talmud teaches us: 27 Gittin 88b. | {
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Abaye once found Rabbi Yosef sitting in a beit din and compelling certain men to give a bill of divorce. He said to him: Surely we are only laymen (without the classic ordination where arbiters { dayanim } received their authority from their immediate predecessors who "laid their hands" upon them dating back to the time of Moshe - AYW). . . . He replied: We are carrying out their mandate. | {
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Explicitly or implicitly relying upon this Talmudic passage, some authorities conclude that matters of divorce in general can be executed in contemporary times on rabbinic grounds. 28 Hiddushei ha-Rashba Gittin 88b; Hiddushei ha-Ran Gittin 88b; Hiddushei ha-Ramban, Yevamot 46b; Hiddushei ha-Rashba , ad locum; Teshuvot Be'er Yitzhak, EH 10:3; Netivot ha-Mishpat 1; Beit ha-Levi 1. Some argue that annulment is limited to Talmudic times. See Sefer ha-Yashar , Teshuvot 24; Hiddushei ha-Ritva, Ketuvot 64a; Darkhei Moshe, Tur EH 7:17 in the name of Terumat ha-Deshen. Whether one adopts the rationale of the reinstatement of the husband's real will, compliance with rabbinic authority or marital annulment as the grounds for get coercion, clearly legally as well as halakhically today, the Israeli rabbinical courts under the Chief Rabbinate are empowered to coerce a get , and should the husband be recalcitrant he may be imprisoned. In other words, even if a beit din subscribes to Ridvaz's view that get coercion entails annulment, the implicit assumption is that the annulment is accompanied by some kind of get ( get kol de-hu ). 29 Text accompanying supra n. 24. Which of the above rationales (Rambam vs. Ridvaz) serves as the grounds for get coercion is unclear from reading the Yerushalayim Regional Beit Din's ruling. 30 For example, if the beit din adopts the Rambam's rationale, then invoking the double doubt, the marriage ought to be voided. However, if the beit din is endorsing Ridvaz's line of reasoning then the employment of the double uncertainty will result in the marriage being annulled and a get would be required. Given the problematic implications of such a position (see E. Shochetman, "Annulment of marriage – a possible way of solving the problem of refusal to provide a Get?" (Hebrew), 20 Shenaton ha-Mishpat ha-Ivri 349, 5755–5757), we assume that the beit din is subscribing to Rambam's rationale or some other line of reasoning. See also, PDR 15:145, 147. Given that even if the panel would have adopted Ridvaz's understanding of get coercion that it entails annulment, a get would still be required to be executed. As such would there be any grounds to argue that given that the Beit Din advanced two bases for get coercion, one may void the marriage? | {
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2. The parameters of the repulsion plea ( mais ali ) | {
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Let us now understand the basis for the Yerushalayim Regional Beit Din's ruling. | {
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Two types of argument concerning rebellion are found in the Talmud (Ketuvot 63b) on the part of the wife: | {
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(1) The rebellious wife by virtue of an argument ("she torments him and grieves him") – a wife who does not wish to divorce but refuses to engage in marital relations in order to cause her husband grief due to an argument that she had with him. 31 MT , Ishut 14:9; SA, EH 77:2. See the addendum. However, in accordance with Rabbeinu Tam, 32 Tosafot, Ketuvot 63b, s.v. aval . should the rebellious wife wish to be divorced without providing reasons, causing her husband grief in order that he divorce her and give her the value of her marital agreement (the ketubah ), she is equally deemed a rebellious wife (a moredet ) by virtue of an argument. 33 Perishah , Tur EH 77:18. | {
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(2) The rebellious wife due to revulsion ("he is repulsive to me"– mais ali ) – a wife who can no longer bear engaging in intimate relations with her husband. 34 Rashi , Ketuvot 63b, s.v. aval amra . | {
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In the present case, the wife's reason for rebelling cannot be classified as the first type, for she has no interest in causing her husband grief, neither because of an argument nor so that he should pay the ketubah . On the other hand, the wife is not claiming that the husband is repulsive to her in conjugal relations, but rather she is repulsed by their life together, and does not wish to be married to him any longer. The question is, therefore, if the second type of argument regarding rebellion due to repulsion is limited only to cases in which the wife can no longer bear having intimate relations with her husband, or is it possible to argue that the same applies in circumstances in which the wife finds married life with her husband intolerable due to his general conduct towards her? | {
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Rabbi A. Sasson struggles with this question, particularly in understanding Rambam's view: 35 Teshuvot Torat Emet 186. Cf. Rabbi Aharon Halevy, Ketuvot 63b, s.v. heikhi dami ; Beit ha-Behirah , Ketuvot 63b, s.v. ugedolei hamehabrim; Teshuvot Heikhal Yitzhak 1:2. | {
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That which is written in the Talmud "he is repulsive to me," i.e., that she alleges that she cannot have relations with him because he is repulsive, like the meaning of "repulsive" in relation to pork, etc. But if her allegation does not relate to intimate relations, then it will not be an allegation of "he is repulsive to me," and even if she says, "I do not want him because I hate him," or that "he will no longer be called my husband," etc., as is written in this context, this language does not give rise to a claim of "he is repulsive to me," because it is possible that the hatred is not due to repulsion, but only because of an argument and a fight or something else, and then her argument is not to be reflective of the plea "he is repulsive to me." . . . And one can also say the opposite, that the meaning of "he is repulsive to me" is that "I hate him" and "I do not want him," etc., i.e., he is repulsive to me, which means I hate him, and as we found in Rambam himself, who said at the end that "she is not like a captive that she should be forced to engage in sexual relations with one she hates, etc. ." From the fact that he said "hates" and not "repulsive," we may derive that hatred and repulsion have the same legal status. And the reason that the Talmud did not use the expression "hatred" is not to exclude hatred, but in fact "repulsion" does include the pretext of hatred. | {
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After discussing the various proofs for each side of the argument, he concludes: | {
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All this causes me doubts on this subject, and I have not found anywhere in the writings of the Sages a firm determination, or even some kind of determination on either of these sides, and it is possible that they did not mention it because it is so straightforward, but in any case the thrust of my argument, any expression of "I do not want him, I hate him, he is no longer called my husband, etc." will fall into the category of "he is repulsive to me." | {
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In any case, according to many other decisors, the claim of repulsion includes circumstances in which the woman is not interested in continuing to live with her husband, and a clear statement of repulsion is not required. 36 Teshuvot Maharik, shoresh 102; Teshuvot Maharashdam, EH 41; Beit Shmuel SA EH 77:11; Teshuvot Tzemah Tzedek, EH 262:11; Teshuvot Pnei Moshe 1:55. In short, the halakhot that regulate the situation of a rebellious woman due to repulsion also apply when the woman claims that she no longer wants to live with her husband. | {
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The evidence required to prove revulsion | {
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Even though several authorities are of the opinion that acceptance of the claim "he is repulsive to me" is contingent upon production of proof of the circumstance which generates the repulsion, 37 Beit ha-Behirah, Ketuvot 63b, in the name of Rambam; Teshuvot Maharit, EH 40; Teshuvot Divrei Malkiel 3:145; Hazon Ish, EH 79:16; File no. 992236/1, Beit Din ha-Rabbani ha-Gadol, May 17, 2015. many decisors contend that there is no need for admissible proof for this purpose, and it is enough if it emerges either from the wife's words, from the circumstances, 38 Tosafot, Ketuvot 63b, s.v. aval ; Teshuvot ha-Rashba , cited in Beit Yosef, Tur EH 77; Teshuvot Maharit 2, EH 40. See also, Teshuvot Yabia Omer 3, EH 18:2. or if the wife provides an explanation, a "pretext" (an amatla ), for her claim of repulsion. 39 Tosafot Rid, Ketuvot 64a; Teshuvot Rosh 43:8, in the name of Maharam of Rothenberg; Teshuvot Tashbetz 4 ( Hut ha-Meshullash ) 3:35; Teshuvot ha-Rashbash 93. Rema, SA EH 77:3 in the name of Tur and in the name of Maharam of Rothenberg. | {
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As for the "pretext," most legists contend that it is not sufficient to provide just any explanation for the repulsion in order for the beit din to accept the claim. The explanation must be clear and convincing, and in their words, a "clear pretext" is required. 40 Tashbetz, supra n. 39 ; Rema, SA EH 77:3 and the commentaries, ad locum; Teshuvot Yabia Omer 3, EH 18:3–4; PDR 15:145. The assumption is that despite the emotional and psychological aspects of "he is repulsive to me," the wife who is suffering is capable of expressing her feelings to the court rationally, by clarifying the source or the reason for these feelings with a "clear pretext," and it is incumbent upon the rabbinical court to determine whether the grounds are true and justified. | {
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3. The application of a double doubt (a sefek sefeika ) regarding get coercion as a vehicle to void a marriage | {
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The aforementioned decision of the Yerushalayim Regional Beit Din focuses upon a suit for divorce filed by a woman on grounds of repulsion of her husband following a verdict in the civil court that convicted the husband of obscene acts carried out on minors. In its argumentation, the panel addresses whether there is a basis for coercing a get when a wife advances a plea of "he is repulsive to me" accompanied by a clear pretext. Though there were a few decisors who subscribe to get coercion under these circumstances, 41 Rashbash , supra n. 39; Teshuvot Yakhin v'Boaz , 2:21 in the name of Maharam; Teshuvot Hut ha-Meshullash , ha-Tur ha-Shlishi , 35 in the name of the Maharam; Tosafot Rid, Ketuvot 63b; Hiddushei ha-Ritva, Ketuvot , 63a; Teshuvot Tzitz Eliezer , 17:53. Lest one argue that one cannot rely upon Rashbash's ruling since it was offered in theory ( le-halakhah ) and not in practice ( le'ma'aseh ), nonetheless numerous decisors understand that one can coerce a get even in accordance to Rashbash. See Teshuvot Seder Eliyahu Rabbah 13; Teshuvot Maharmit EH 40; Teshuvot Shoeil u-Meishiv, Mahadura Tlita'ah 1:350. the majority reject this view. 42 Sefer Meisharim , Netiv 23, Helek 8; Teshuvot Beit Ephraim 126; Teshuvot Mekor Barukh 17; Netivot Mishpat (Algazi), 214a; Ra'ah ha-Levi , Teshuvot Zekan Aharon 149. Moreover, some authorities would not even obligate a get in these circumstances. 43 Teshuvot Maharam of Rothenberg , Prague ed., 946; PDR 12:339 in the name of Rosh, Tur and Maharshal; Teshuvot Ateret Devorah 1:33. Secondly, the beit din explores whether there would be grounds to coerce a get due to the fact that the husband acted deceitfully when he refrained from disclosing to his wife prior to their marriage that he was a convicted pedophile. Here again, upon beit din review; it was found that the propriety of a get compulsion order was equally a matter of halakhic debate. 44 Teshuvot ha-Rosh 35:2; Rema SA EH 77:3; Beit Shmuel SA EH 117:24; Teshuvot Ohr Gadol 5; Teshuvot Ein Yitzhak 2, EH 35 (34). Cf. Pithei Teshuvah SA EH 77:8 in the name of Teshuvot Hatam Sofer EH 1:116; Teshuvot Divrei Malkiel 3:110; PDR 1:5, 10–11, 5:193, 241, 247. | {
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In the wake of this understanding of these two issues, what emerges from the decision of the beit din panel is that there are two halakhic doubts (hereinafter: double doubts): namely, whether one may coerce a get in light of a husband's abusive behavior and whether one ought to coerce a get due to his deception. Without elucidation, the panel posits that since a doubt regarding the propriety of get coercion entails a biblical doubt, therefore we are dealing with a double halakhic doubt on a biblical level, where a get may be coerced. 45 A doubt involving the propriety of get coercion under particular circumstances is to be construed as a biblical doubt. See Hiddushei ha-Ramban Yevamot 46a; Hiddushei ha-Rashba , ad locum; Pithei Teshuvah SA EH 70:3 in the name of Hatam Sofer and Beit Meir. In other words, if there is a halakhic controversy whether to coerce a get , due to the existence of a halakhic doubt we refrain from coercing a get . See Tosafot, Ketuvot 70a; Rema, SA EH 154:21. Should a get be coerced under such conditions, the get is null and void. The assumption is that if Halakhah mandates the get ought to be coerced we are dealing with a situation that the wife can no longer live with her spouse and consequently, she is not bound ( shi'bud ) to him. As Dayan Izirer notes, "The nullification of the servitude empowers her with the right to be liberated from all of the husband's servitudes, including the primary servitude that she is prohibited due to him to others and she is preempted to receive all her marital rights because she was married to him." See H. Izirer, "The Duty of the Get and Maintenance to a Rebellious Wife who is Repulsed by Him," (Hebrew) 2 Shurat ha-Din 64, 99 (5754). In other words, where there is an obligation to give a get , the woman may still be capable to live with her husband and therefore she is still bound to engage in conjugal relations with her spouse and this duty has not been annulled biblically. On the other hand, where Halakhah mandates get coercion it is the authority(ies)'s determination that the woman is under duress by still remaining with him and consequently, she is no longer bound to have conjugal relations with her husband. See Izirer, op. cit., p. 102. In short, the propriety of get coercion entails a biblical doubt regarding the presumption that she is a married woman. See further supra n. 6. Whether there are grounds to coerce a get is a biblical issue, but the actual implementation of the mechanism of get coercion is a rabbinic enactment, see Izirer, op. cit., 102–103; File no. 846913/2. Yerushalayim Regional Beit Din, May 9, 2011. Therefore, a doubt regarding whether to apply coercion entails a biblical doubt whether there is a basis to coerce a get . Whether one can void the status of "a married woman" in case of a compounded biblical doubt regarding get coercion in a case of get recalcitrance ( igun ), see the debate in Teshuvot Oneg Yom Tov 167; Y. Goldberg, Elu She-kofin Le-hotzi , 51, n. 46, 131, n. 18 and infra n. 55. Based upon the arguments submitted to the Yerushalayim Regional Beit Din, one can argue that we are dealing with three halakhic doubts. Firstly, given that the wife is advancing a plea of repulsion ( ma'is ali ) we have a doubt whether we adopt Rambam's approach to coerce a get . And if you should conclude that we do not coerce a get due to the suspicion that the wife is interested in another man, possibly where there is a "clear pretext", we coerce a get . And if you should conclude that the existence of a clear pretext one does not mandate the compulsion of a get , possibly we should rule in accordance with Rif in the name of a Gaonic enactment that we coerce a get . Based upon the foregoing, Rabbi O. Yosef mandated get coercion due to the invoking of a double halakhic doubt ( sefek sefeika ) comprised of three halakhic doubts. See Teshuvot Yabia Omer 3, EH 18(4), 20(35). Utilizing this double halakhic doubt concerning get compulsion in dealing with the plea of repulsion and in pursuance to the Yerushalayim Regional Beit Din's judgment as well as Elu She-kofin Le-hotzi, supra n. 1 that a double halakhic doubt in biblical matters permits us to void a marriage. The different halakhic planes for a plea of repulsion as outlined above are applicable to numerous marital situations which lead to divorce and as such may be invoked as a double halakhic doubt in order to void a marriage in a case of get recalcitrance. See infra chapters 4E, n. 82 and 4F, text accompanying nn. 40–41. Alternatively, we may advance an additional double halakhic doubt which would result in voiding the marriage. The first doubt is that there is a debate whether one may coerce a get based upon a plea of repulsion. Moreover, there is a second doubt whether one may coerce a get concerning a particular ground for divorce such as a husband who is physically abusive to his spouse. Based upon this double halakhic doubt one may coerce a get (see Teshuvot Heikhal Yitzhak EH 1:3 (15); PDR 15:145, 153) and therefore we may void the marriage. See R. Y. Goldberg, Elu She-kofin Le-Hotzi , Yerushalayim, 5773, 50–51, nn. 46–47, 131, n. 8. See Teshuvot Osher Hanan who rejects the invoking of a double halakhic doubt in regard to get coercion involving a wife's plea of repulsion due to the fact that both Rabbis Moshe Sofer and Eliyahu Abergil would argue that in the wake of a halakhic dispute concerning whether there are grounds for get coercion one cannot coerce a get in order to avoid the strictures of a coerced get . See Teshuvot Hatam Sofer 1:116; Teshuvot Dibrot Eliyahu 4:27; Teshuvot Osher Hanan 4, EH-HM 77(10). (As Rabbi Ariel Holland of Tekoa, Israel notes, we know that from time to time there may be a halakhic controversy which is even ( shakul) which means that there is an equal number of decisors who endorse one view and an equal number of arbiters who adopt the opposing opinion and Halakhah has not determined which position will be adopted as normative. In pursuance to Hatam Sofer's grandson, his grandfather's definition of a coerced get is limited to a dispute which is even. Consequently, in cases where the debate is uneven, there is no possibility of a coerced get. See Teshuvot Ktav Sofer EH 59. As such, in accordance with this interpretation of Hatam Sofer's position, there may be grounds to entertain the possibility of invoking a double doubt in relation to get coercion. However, most authorities apply a coerced get in situations of uneven controversies and as such would be unable to entertain the possibility of a double doubt regarding get coercion.) Obviously, Rabbis Yosef and Goldberg reject this posture and will invoke a double doubt under these circumstances. The implicit premise of their position is predicated upon the notion of a husband's willingness to accept the bet din's authority to render a judgment, a ruling which may not reflect halakhic consensus rather than constructive consent based upon halakhic unanimity serving as grounds for get coercion. See Teshuvot Ein Yitzhak, EH 2:5, 35; Hazon Ish, EH 69:23; Teshuvot Heikhal Yitzhak EH 1:2. For these two diametrically opposing perspectives in dealing with get coercion, see this writer's Rabbinic Authority , vol. 3, 35–43. For a differing rationale for avoiding the specter of a coerced get due to a beit din's reluctance to subscribe to one opinion emerging from a halakhic controversy that would permit get coercion, see Tosafot Yevamot 64a, s.v. yotzi; Tur, EH 154 in the name of Rosh; Rema SA EH 154:21; Teshuvot Maharashdam YD 146; Teshuvot Re'em 1:14. Finally, may one advance the argument of a double doubt dealing with the repulsion plea when it contradicts the ruling of Shulhan Arukh? For example, given that Shulhan Arukh opposes get coercion in a situation where a wife advances a plea of repulsion ( mais ali ) and a plea of repulsion with a clear pretext (see Beit Yosef, Tur EH 77; SA EH 77:2, Bi'ur ha-Gra SA EH 77:6; Helkat Mehokeik, SA EH 77:5) as we presented earlier in this note, may one contend that there exists an argument for a double doubt regarding get coercion? If we accept the ruling(s) of Rabbi Yosef Karo, author of the Shulhan Arukh as final and thus dismissive of contrary opinions (see Teshuvot Maharif 59; Teshuvot Mishpat u-Tzedekah be-Ya'akov 2:5; Teshuvot Ohel Yosef YD 30; Rabbi Krochmal, Teshuvot Tzemah Tzedek 9; Teshuvot Havot Yair 165), then one cannot utilize his position to establish a halakhic doubt, much less a double halakhic doubt. On the other hand, if one accepts Shulhan Arukh's judgments as a halakhic -judicial determination between differing opinions (see Rabbi H. Sofer, Zekhor le-Avraham , 65–111, 5760–5761) implicitly we may be dealing with the resolution of a biblical halakhic doubt and therefore, one may join this doubt with another doubt and establish a double doubt. In other words, Shulhan Arukh may act under certain conditions leniently if he knew that there was a second doubt. See Teshuvot Hikrei Lev 1, YD 127; Teshuvot Nediv Lev 2, HM 63; Teshuvot Yabia Omer 9, YD 6:5. Based upon the latter position, Rabbi O. Yosef invokes on numerous occasions a double doubt to establish a leniency even contrary to the expressed ruling(s) of Shulhan Arukh. See Teshuvot Yabia Omer 2, OH 8:18, 5, 8, OH 8, YD 15:2, 6, YD 24, 9, YD 6:4, 10, YD 43(2). For others who employ a double doubt even contrary to the view(s) found in Shulhan Arukh, see Rabbi Yitzhak Yosef, Ein Yitzhak , 3:115–116 in the name of many authorities. Consequently, it is unsurprising to find that Rabbi O. Yosef employs a double doubt regarding the plea of repulsion as it relates to get coercion. See Teshuvot Yabia Omer 3, EH 18(4), 20(35). In light of a controversy whether we can permit a wife to remarry when there is a biblical double uncertainty, the panel aligns itself with the posture which would allow for this remarriage. However, since it presumes that each doubt has to be even ( shakul ), which means that there must be equal number of decisors who will coerce a get versus an equal number of decisors who reject this possibility prior to invoking the technique of a double halakhic doubt; this method could not be implemented. As we mentioned, the majority of authorities oppose get coercion vis-à-vis a husband who engages in pedophilia. And regarding the matter of misrepresentation, it is unclear whether the number of decisors who endorse get coercion that corresponds to the number of those who reject the implementation of get coercion. | {
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In other words, in this particular case there were no grounds for get coercion due to the invoking of a double halakhic uncertainty. | {
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As we mentioned, it is clear from reading the Yerushalayim Regional Beit Din's decision that the fact that most authorities rule against the propriety of get coercion prevents the invoking of a double doubt, and said conclusion is also supported by other decisors. 46 Tosafot Ketuvot 9a, s.v ve'i; Shakh, SA YD 110, Kelalei Sefek Sefeika 33; 129:28; Teshuvot Hikrei Lev 1, YD 126, Erekh Shulhan HM 3. However, it is our understanding that Bahag, Rif, Rambam, Rosh (possibly), Ra'avad, Semag, Ramah, Meiri, Ritva, Rabbi Yosef Karo (possibly), Rabbi David ibn Zimra, Rabbi Mordekhai ha-Levi, Hida, Rabbi Ya'akov Emden and Rabbi Ovadiah Yosef all rule that under certain conditions (e.g. a doubt as to what the Halakhah ought to be), a biblical doubt (a sefeika de'oraita ) ought to be resolved stringently on a rabbinic level. 47 Ha'amek Sheilah 68 in the name of Bahag; MT, Tumat ha-Met 9:12, Avot ha-Tumah 16:1, Issurei Biah 18:17, Kilayim 10:27; Teshuvot ha-Rambam 310; Alfasi, Pesahim 40b, Kiddushin 5b; Mordekhai, Yevamot 21; Teshuvot Bnei Shmuel 42 in the name of Rosh; Teshuvot Mutzal me-Aish 12 in the name of Rosh; Sedei Hemed ha-Shalem , 5, Ma'arkehet Samakh, Kelal 10 (Cf. Piskei ha-Rosh Yoma 8:7, Teshuvot Ktav Sofer OH 30 and Teshuvot Beit Ephraim EH 2 in the name of Rosh); Ra'avad, Tumat ha-Met , op. cit., Kilayim , op. cit.; Beit Yosef, Tur YD 228 in the name of Teshuvot ha-Ran 51; Teshuvot Yad Eliyahu of Lublin 49; Semag, Negative Commandments 121; Hiddushei ha-Ramah, Kiddushin 39a; Sefer Beit ha'Behirah, Shabbat 23a, Hagigah 4a, Kiddushin 5b; Hiddushei ha-Ritva, Rosh Hashanah 34b, Avodah Zarah 39b; SA OH 616:2, YD , 110:9, 302:1, Teshuvot Yabia Omer 6, OH 3(1) in the name of Shulhan Arukh; (Cf. Teshuvot Torat Hesed OH 3, EH 13 in the name of Shulhan Arukh) (Cf. Noam Siah , vol. 1, 252–275 who argues that Rabbi Karo's view is unclear); Teshuvot ha-Ridvaz 4:93; Teshuvot Ginat Veradim, Kelal 8; Birkei Yosef 184:1; Teshuvot Sheilat Ya'avetz 2:143; Teshuvot Yabia Omer 1, YD 3, 6, EH 3, 6 YD 24. See also, Pri Megadim Petihah le-Birkot ha-Shahar ; Teshuvot Zikhron Yosef YD 19; Mizgeret Shulhan 110; Mahazik Berakha 589:6; Teshuvot Yabia Omer 10, YD 6:9–10. In pursuance to this tradition that we are dealing with a rabbinic matter, there is no requirement that the double doubt represent that the legists are equally divided (i.e. shakul ) to determine whether one may coerce a get in order to free the wife without a get . 48 Teshuvot Torat Hesed (Lublin), EH 9 (5); Teshuvot Yabia Omer 4, YD 12 (14), 6, YD 24:13, 10, OH 38 (4). Cf. Teshuvot Divrei Malkiel 7:93. Moreover, Get Pashut 120:26 and File no. 917387/1, Yerushalayim Regional Beit Din, November 17, 2013 disagree with our conclusion. Clearly, many of the authorities cited infra n. 55 do not require that the arbiters be equally divided regarding the propriety of the issuance of a g et compulsion order or voiding a marriage prior to invoking a double halakhic doubt. Even if one side of the doubt reflects a minority opinion, the double halakhic doubt will be effective. 49 For the definition of "even" as referring to the arbiters equally divided regarding a particular issue, see Teshuvot Zivhei Tzedek 2, 110:158; Teshuvot Beit David YD 6; Teshuvot Ohel Yosef 30; Teshuvot Dvar Moshe 3, YD 2; Teshuvot Hesed le-Avraham OH 13; Teshuvot Yabia Omer 3, OH 16 (7); Get Pashut, ibid . ; File no. 917387/1, ibid. Finally, given that the rule of "following the majority" is applicable only to resolving issues within the confines of a beit din proceeding, one cannot speak of a majority opinion and minority opinion concerning intergenerational disputes. 50 Teshuvot ha-Rashba 2:104, 3:304, 5:126; Teshuvot ha-Ritva 85; Beit Yosef, Tur HM 13 (7) in the name of Rashba; Teshuvot Maharlbah 147. As such, the requirement that the decisors be equally divided regarding a pending issue is not mandated regarding a double doubt. 51 Tal Hayyim , 523. | {
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Moreover, even according to Rashba and others that a biblical doubt ought to be resolved stringently on a biblical level, does not necessarily mean that the application of a double uncertainty will be ineffective. The consequent leniency associated with the implementation of a double uncertainty is due to the rule of following the majority (" aharei rabbim le'hattot "). The existence of one doubt creates a situation of 50/50 uncertainty (" ke-mehtza al mehtza dami "), and then the second doubt creates a majority which results in treating the matter leniently on a biblical level. 52 Pnei Yehoshua, Ketuvot 9a; Teshuvot ha-Rashba 1:401; Pri Hadash 110:49; Teshuvot Torat Hesed OH 3:4; Teshuvot Kol Eliyahu 2, YD 3. For alternative explanations for the effectiveness of the double uncertainty even according to those authorities who contend that a biblical doubt is resolved stringently on a biblical level, see Tal Hayyim , 372, 379–383. In accordance with many authorities this approach is the dominant understanding as to why the employment of a double doubt will be effective. 53 Teshuvot Binyan Tzion 1:14; Teshuvot Yabia Omer 6, YD 14, 7 EH 6:5; Taharat ha-Bayit 1, 135–136. Given the above lines of reasoning, 54 See supra text accompanying n. 48. Though in pursuance to Teshuvot Divrei Malkiel 7:2, the requirement of an even number of decisors on both sides of the doubt applies to Rambam's approach regarding doubt on a biblical level one must act stringently, nevertheless we have implicitly subscribed to the view that this posture would not necessarily mandate such a requirement. See Teshuvot Yehaveh Da'at 2:74 (271–272). A discussion of this matter is beyond the scope of our presentation. there is no prerequisite that the doubt must be even, namely that the arbiters would be equally divided concerning the propriety of the issuance of a get compulsion judgment prior to employing the rule of the double doubt. As such, relying upon a well-trodden tradition ( mesorah) of Ashkenazic as well as Sephardic decisors that sanctions the employment of a double uncertainty concerning biblical prohibitions including prohibitions of nakedness ( issurei ervah ), 55 Teshuvot Ein Yitzhak, 1 EH 24 (48) (release from a levirate marriage- halitzah ); Teshuvot Ein Yitzhak 1, EH 22 (18), 62; Teshuvot ha-Ranah 1:68; Teshuvot Pnei Moshe 2:51; Teshuvot Hikrei Lev 1, YD 130, EH 59; Teshuvot Maharashdam EH 33; Teshuvot Maharbil 21, 33, 48, 62, 64; Teshuvot Maharash 5, 8, 35, 48; Teshuvot Ba'ei Hayyai, YD 216; Teshuvot Perah Shushan EH 3:2; Teshuvot Tzemah Tzedek EH 1:55(7); Teshuvot Sha'ar Asher , EH 1:29, 31; Get Pashut Gittin 129:13; Teshuvot Rabbi Akiva Eiger , Pesakim 37, Mahadura Tinyana 45; Teshuvot Beit Shlomo EH 37; Teshuvot Shem Aryeh EH 111; Kereti u-Peleti , YD 110; Pri Hadash , YD 110:5, 16; Teshuvot Yismah Lev 12; M. Yerushalamski, Teshuvot Minhat Moshe EH 11; Get Pashut 129:13; Knesset ha-Gedolah, EH 65, ha-Gahot Tur 22–23 in the name of a dozen decisors; M. Yerushalamski, Teshuvot Be'er Moshe , Kuntres Binyan Yerushalyim 18; Teshuvot Nediv Lev EH 8; A. Makovsky, Teshuvot Ohalei Aharon 1:19; Teshuvot Ahiezer 3:19 (release from levirate marriage- halitzah ); Teshuvot Rav Pealim EH 3:11 (end); Teshuvot Yabia Omer 3 EH 18, 6 EH 3 (8), 6, 8; Teshuvot Shema Shlomo 1, EH 6; S. Messas, " A doubt in coercion of a Get ," (Hebrew) 23 Tehumin 120, 123–124 (5763); Teshuvot Minhat Osher 1:73; PDR 21:10; File no. 1126792/1, Netanya Regional Beit Din, 11 Tishrei 5778; Teshuvot ha-Rishon le-Tzion 2:8; Y. Goldberg, supra n. 16, 51, n. 47, 131, n. 18. For additional authorities who endorse this posture, see numerous responsa, Ashkenazic and Sephardic alike cited in Sefer Rav Berakhot , 126; Mishpat ha-Get , vol. 3, 495–499; Teshuvot Yabia Omer 1, EH 3 (14), 6, EH 3 (9, 14–15), 6 (5) and this writer's Rabbinic Authority , vol. 4, 159, n. 47. Cf. those decisors who reject the application of a double halakhic doubt in various realms of Halakhah , see this writer's, Rabbinic Authority , vol. 4, 159, n. 46. the invoking of the double doubt regarding get coercion under certain conditions will trump the presumption that she is a married woman and will reinstate the original presumption of being a single woman (a penuyah ). | {
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As such, freeing a wife without a get may be based upon the employment of a double doubt relating to two different debates as to whether one can coerce a get concerning two different grounds for divorce. 56 Seemingly, given that numerous authorities who opine that in the wake of a halakhic controversy regarding whether there are grounds for get coercion, one cannot coerce a get . See supra n. 45(end). Consequently, logically one may never employ a double doubt in so far as get coercion in order to void a marriage. As such, these decisors would not endorse voiding the marriage in our case. In pursuance to this approach, whether there may be conditions which sanction the implementation of a double doubt as it relates to get coercion we leave as an open question. In short, in the wake of a get recalcitrant husband, we deem the matter as "an hour of emergency" ( sh'at ha-dehak ) and a priori ( le-hatehillah ) we can void the marriage based upon a double halakhic doubt. 57 See Sedei Hemed , Ma'arekhet Get 30(6) and ha-Samekh 30(3) in the name of Rashba and Ridvaz. The implicit premise of invoking a double doubt regarding get coercion in order to void a marriage is that the beit din must initially identify at least two grounds for divorce which in effect give credence to a wife declaring "a marriage in error" or "on this understanding she did not give herself in marriage" and therefore, the execution of a get is only required on rabbinic grounds lest the public infer that a married woman is exiting her marriage without a get. See Teshuvot Devar Eliyahu 48; Teshuvot Ahiezer 1, EH 27. Given that the giving of the get is only mandated rabbinically, consequently, we may deploy a double doubt regarding get coercion and void the marriage based upon the foundations that we have outlined in our presentation. See supra pp. 64–70. | {
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A. The halakhic impropriety of a kiddushin ceremony | {
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In the summer of 2000, Avraham (hereinafter: the defendant) married Sarah (hereinafter: the plaintiff). Subsequently, the couple separated in September 2010 and thereafter the plaintiff requested that the defendant give her a get . Years later, we summoned the defendant to resolve the matter of the get in our beit din , but he refused to comply with the summons. We set a date for the hearing and heard the arguments of the plaintiff, and in June 2017 we obligated the defendant to give the plaintiff a get . To date, he persists in his refusal to give a get . | {
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Under the wedding canopy ( hupah ), standing near the officiating rabbi, groom and bride, were relatives from both families of the couple who are ineligible to give testimony concerning the kiddushin . Standing in the back of the canopy were three adult Jewish males who were nonrelatives. One was a rabbi who is known to be Torah observant, who "came and went" during the ceremony. Additionally, there was an adult Jewish male, and we were unable to ascertain whether he was Torah observant. There was a third adult male who was a nonrelative, whom, we are told, was secular. In fact, we spoke to the man and he informed us that he was non-observant. The three men were not designated by the officiating rabbi to serve as witnesses for the kiddushin . The ring set in diamonds given by the defendant to the plaintiff during the kiddushin was bought by the plaintiff and the defendant did not reimburse her for the purchase. No marriage agreement ( ketubah ) was executed at the wedding. Though the plaintiff brought a ketubah to the hall and offered it to the officiating rabbi, he declined to use it or any other ketubah . | {
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As Rabbi Avraham Shapiro, former Chief Rabbi of the State of Israel observes in a case which did not entail a husband's get recalcitrance ( igun ): 1 Sefer Minhat Avraham 4:6. | {
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We do not work excessively hard to consider carefully all potential leniencies but in the case of an agunah , the beit din must work hard to identify a leniency in order that she not remain an agunah. | {
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Accordingly, we have canvassed the halakhot to void the kiddushin (loosely translated: the marriage) of the above couple as it relates to the propriety of the marriage ceremony. | {
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Discussion | {
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A. Kiddushin conducted by a person without the requisite credentials | {
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The Talmud states: 1 Kiddushin 6a. See also SA EH 49:1 and the glossators ad loc. | {
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Rabbi Yehudah said in the name of Shmuel: Whoever is not well-versed in the halakhot of divorce and marriage has no business rendering decisions in such cases. | {
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Moreover, the one who officiates at the wedding ceremony (the mesadeir kiddushin ) must be ordained as a rabbi. 2 Teshuvot Shevut Ya'akov 3:121; Teshuvot Knesset Yehezkel 72; Teshuvot Divrei Malkiel 4:119, 5:223. | {
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