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The difference between "mistake" and "clear expectation": | {
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In order to invalidate kiddushin on grounds of mistake as to the facts, two fundamental conditions must be fulfilled: the defect must have existed prior to the kiddushin , and the spouse must have been unaware of it at the time of the kiddushin . Thus, in certain circumstances, if a defect existed in the husband prior to the kiddushin and the wife was not aware of it, the kiddushin can be invalidated on grounds of the defect. However, if the defect eventuated after the kiddushin , we cannot say that the kiddushin are now invalid due to mistaken transaction. | {
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On the other hand, concerning the clear expectation that "she did not give herself in marriage with this in mind," even in a case in which the defect appeared only after the kiddushin , under certain conditions it is possible to invalidate the kiddushin . This was the opinion of Rabbi Meir Simhah, head of the Beit Din of Dvinsk, 32 Teshuvot Ohr Same'ah (Machon Yerushalayim ed.) 2:28. For a similar view, see Rabbi Moshe Rozin, Teshuvot She'eilot Moshe , EH 2. "There are occasions on which we say that there is an assessment, even in relation to something which came about later . . . that she did not give herself in marriage with this in mind." | {
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This in fact warrants further elucidation, for it is necessary to properly understand the matter of cancelling the transaction, and to examine the relationship between mistake, clear expectation and condition. Under the halakhot relating to transactions, we find several cases in which the transaction is void. One possibility is that it was a mistaken transaction: this is when the purchased item was defined, and after the purchase, it emerged that the item was different from that which was agreed upon. Another possibility for voiding a transaction is when a sale was made on a certain condition: if that condition does not eventuate, the sale is void. In addition, Rabbi Yosef Karo mentions that there is a case in which the transaction is not voided: 33 SA HM 207:4. | {
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But in a regular sale, even though he had in mind that he sells on such and such a condition, and even though it is logical that he did not sell other than in order to do a particular thing and this was not done, he may not retract, for he did not specify, and unarticulated thoughts have no legal validity. And even though prior to the sale he said that he is selling with the intention of doing a particular thing, because he said nothing at the time of the sale he may not retract. | {
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Rema's gloss on Rabbi Karo's ruling is the following: "However, something about which there is a proven clear expectation – the transaction is invalidated." It must be stressed that Rema did not write this as a matter of dispute in terms of "there are those who say" ( yesh omrim ), as he does unfailingly when he himself wishes to disagree with Shulhan Arukh, or when he cites a view that disagrees. The reason would appear to be that in Rema's opinion, Shulhan Arukh too will concede this point, and in truth, the Vilna Gaon comments that Rema relies on cases mentioned elsewhere by Shulhan Arukh itself (one who heard that his son had died overseas, and he gifted his property; a document attesting to a fictitious transfer of ownership – shtar mavrahat ). Therefore, it would appear that this ruling is basically undisputed, and we follow a proven responsa. | {
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One of the differences between a mistaken transaction and a condition is that a condition may relate to something that may or may not materialize in the future, and therefore the sale may be valid or it may be invalidated retroactively. It is therefore necessary to clarify whether the clear expectation is like a mistaken transaction, where the particular flaw needed to have existed at the time of the transaction, and what the assessment adds is that even if he did not say specifically that he is buying with this in mind, nevertheless it is clear that this was his intention when he purchased the item; or rather, whether the clear expectation is like a condition, and the transaction may be invalidated by virtue of the clear expectation even if the flaw came about only later. From what Rambam writes 34 MT , Mekhirah 11:9. as well as Shulhan Arukh, the clear expectation would appear to be similar to a condition, for these laws were included in the halakhot of conditions and not in the halakhot relating to mistaken transaction and fraud, and from the order of things we may infer that the grounds for invalidating the transaction do not need to be evident at the time of the transaction. Even amongst the authorities who dealt with umdana, it appears that it makes no difference whether the defect existed and was discovered only after the kiddushin , or whether it actually came into being only after the marriage, and in all events it would appear that from this aspect, a proven clear expectation is similar to a condition. 35 See also Otzar ha-Poskim, EH 44:9. | {
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As Meiri notes that although we find in the Talmud Yerushalmi that even if she was the wife of a rogue and a person afflicted with a serious skin disease, it may be considered against her interests and cannot be done without her consent, due to the presumption that "it is better to be two together than to be alone." 36 Beit ha-Behirah Yevamot 118b, s.v. kvar yadata . However, regarding the wife of an apostate, it is considered a privilege for her to be divorced from him and thus it can be presumed that one has her consent. A contemporary Israeli rabbinical court contends: "If I could muster significant support amongst my colleagues, I would rule that the wife of a Jewish apostate for whom a get would unquestionably be a net benefit should be given one in such a way that it would be irrevocable one it reaches her agent's hands." 37 File no. 869531/2, Netanya Regional Beit Din, July 31, 2014. In other words, Meiri is of the opinion that sometimes, it is considered a benefit for the wife's to be divorced, and we do not say that it is better that she should be married: rather, we say that she did not give herself in marriage with this in mind. | {
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6. Clear Expectation ( umdana ) Concerning a Wife and a Husband | {
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Here we should recall the words of those who held that in relation to the wife, the clear expectation that she would not enter into a marriage with a husband who has a defect is stronger, for the reason that she cannot effect the divorce herself against the will of the husband if it transpires that she cannot live with him; and if it is the case that the husband, who does have the possibility of effecting the divorce himself has the right to claim that the kiddushin are invalid, a fortiori this could be said of the wife. 38 Hokhmat Shlomo, Ketuvot 75a, 5; Teshuvot Noda be-Yehudah , Mahadura Tinyana, EH 80 (end); Teshuvot Ahiezer, EH 27; Teshuvot Iggerot Moshe, EH 1:79; Sefer Minhat Avraham 2:10. | {
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Rema, Sefer ha-Agudah and Arukh ha-Shulhan rule that the husband's consorting with prostitutes is grounds for divorce and a get may be compelled. 39 Darkhei Moshe Tur EH 154:21; Sefer ha-Agudah Yevamot 65a, 77; Arukh ha-Shulhan EH 154:16. See supra n. 4. The common denominator of Sefer ha-Agudah and Arukh ha-Shulhan is that the ground for divorce is not the actual offense of the philandering, but the breakdown in family life that the husband causes with such behavior. In addition, following the concern about contracting AIDS if the husband is unfaithful, there are additional grounds for compelling the get according to the above-cited Sefer ha-Agudah. 40 File no 1-21-2569, Yerushalayim Regional Beit Din; Ha-Din veha-Dayan 5, 10 (5764–2004), | {
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Other authorities regarded this as conduct that in its very essence causes revulsion in the wife. For example, Rabbi Eliyahu of Tarla argues as follows: 41 Teshuvot Dvar Eliyahu 73. | {
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"Regarding compelling a man to divorce – this is certainly worse than the blemishes in respect of which he is compelled to divorce her, and there is nothing more repulsive to her than this." | {
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And in contemporary times, Rabbi Uriel Lavi writes: 42 Ateret Devorah 1, EH 37. | {
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From what the Sefer ha-Agudah wrote, we see . . . that such conduct of the husband usually leads to him losing his money, and detracts from sexual intimacy with his wife and causes the woman suffering, that is, his conduct in its very essence entails repulsion and justifies compelling the husband to divorce . . . [in the case of] repulsion that is recognized and normal in such circumstances for all women – the husband is to be compelled. | {
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As we said above, because there is no possibility of compelling the get in the United States, therefore, in reliance on the facts and the testimony presented to us, the kiddushin may be invalidated by means of implementation of the clear expectation that "she did not give herself in marriage with this in mind" (meaning that there is an implied condition in the constitution of the marriage and its validity. 43 Teshuvot Binyamin Ze'ev 62; Teshuvot Terumat ha-Deshen 223; Sha'arei Yosher 5:18. Numerous decisors mandate that a condition must comply with the halakhot of conditions ( mishpetei ha-tena'im ) in matters of marriage and divorce due to the fact that we are dealing with a matter of prohibition (i.e. the prohibition of being a married woman). See Teshuvot ha-Rif 31; Rashbam, Bava Batra 137b, s.v. ve'im lav; Mordekhai, Succah 758. Nevertheless, in certain circumstances Halakhah will validate an implied condition. See Tosafot Ketuvot 97a, s.v. zavin, Tosafot Gittin 75a, s.v. le'afukei and Iggerot Moshe EH 4:121 (end). See also, B. Lifshitz, Promise: Obligation and Acquisition in Jewish Law (Hebrew), Jerusalem: 1988, 138, n. 106. In other words, despite the fact that we are dealing with the prohibition of "a married woman", nonetheless, we may invoke here in accordance to Rabbi Rozin, the mechanism of the clear expectation and void the marriage based upon an implied condition of marriage. On the other hand, voiding a marriage based upon "an error in the marriage" ( kiddushei ta'ut ) is grounded upon the notion that Halakhah mandates a meeting of the minds ( gemirat da'at ) which is consummated with the act of kiddushin which is executed by an act of undertaking an obligation (a kinyan ). See Hazon Ish HM 22; Rabbi Y. Abramsky, Dinei Mamonot , Bnei Brak, 5729. The emergence of an error in the kiddushin due to the husband's failure to disclose a major flaw to his prospective wife prior to the marriage effectively prevents "a meeting of the minds". See Hazon Ish, EH 56:9, 77:6. For a contemporary adoption of this approach and the application of the concept of a sale in error to "an error in marriage" see Moreshet Moshe , Bava Metzia 60:4 and Teshuvot Beriti Shalom 5:15. Cf. Rabbi Akiva Eiger who contends that a sale in error ( mekah ta'ut ) is grounded in the violation of a condition ( tenai ) rather than intrinsically linked to the performance of undertaking a duty. See Teshuvot Rabbi Akiva Eiger 2:51, 106. To state it differently, despite the fact that we are dealing with the prohibition of "a married woman", nonetheless, in accordance to Rabbi Eiger we may invoke here, the mechanism of "an error in marriage" and void the marriage based upon an implied condition (rather than an explicit condition formulated in pursuance with the halakho t of conditions) of marriage. For additional decisors who subscribe to Rabbi Eiger's approach, see supra p. 142, n. 37. Certain decisors have had recourse to this clear expectation in order to invalidate kiddushin in other circumstances. See: Teshuvot Maharam of Rothenberg, Prague ed., 1022 ( halitzah- in theory); R. Meir Posner, Tzal'ot ha-Bayit 6; Teshuvot Zikhron Yehonatan 1, YD 5; Teshuvot Hesed Avraham, Mahadura Tinyana, EH 55; Teshuvot Radakh 9; Teshuvot Meshivat Nefesh, EH 73, 76–77; Teshuvot Torat Hesed, EH 20:6 ( halitzah ); Teshuvot Divrei Malkiel 4:100; Teshuvot Maharsham 7:95; Teshuvot Sho'eil u-Meishiv, Mahadura Kama, 1:198; Teshuvot She'eilot Moshe EH 2; Teshuvot Har Tzvi, EH 2:133. In accordance with the views of Rabbis Feinstein and Lavi whereby the clear expectation can be applied on condition that there is another view whereby the kiddushin can be invalidated (see: Iggerot Moshe, EH 4:121; File no. 861974/2, Tzfat Regional Beit Din, 5.10.2014), in the present case we have applied the mechanism of mistaken kiddushin due to the abuse of the children together with the employment of clear expectation in connection with infidelity. Whether one can utilize a release from a levirate marriage (yibum ) judgment to conclude that one can equally void the marriage is open to debate. Eventhough a widow waiting for her deceased husband's brother to perform a release is biblically prohibited to anyone else and her status is not as stringent as the status of a married woman who is biblically prohibited to anyone else, one may nonetheless apply a halitzah ruling to a matter of marriage which entails voiding marriage. See Teshuvot Terumat ha-Deshen 250; Teshuvot Noda be-Yehudah , Mahadura Tinyana EH 66 (Cf. Mahadura Kama OH 21); Teshuvot Har Tzvi EH 1:95, 99. See further this writer's Rabbinic Authority , vol. 3, 154, n. 45. Based upon the foregoing, therefore we have cited the rulings of Maharam and She'eilot Moshe which deal with levirate marriage and advance the argument that a clear expectation ( umdana de'mukha) may serve as a ground to permit remarriage for the wife without the brother-in-law performing a release and these judgments may be equally applied to any marriage as a means to void the marriage. See the ruling of Rabbi Y.S. Nathanson argues that if in a case of levirate marriage one can free without halitzah , a fortfiori one may in a case of voiding a marriage due to an error in the marriage ( kiddushei ta'ut ). See Teshuvot Sho'eil u-Meishiv , Mahadura Tlita'a 61; Iggerot Moshe EH 3:46. In fact, in the absence of the ability to coerce a get, we may invoke the clear expectation standard. See Teshuvot Sho'eil u-Meishiv , Mahadura Kama 198; Teshuvot Ahiezer 27(4) in the name of Maharshal and Noda be-Yehudah. | {
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Rabbi Aharon Levine of Rzeszow notes as follows: 44 Teshuvot Avnei Hefetz 30. | {
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One may add a further consideration to our argument regarding this case, namely, that in light of the fact that we now know that the husband is a despicable criminal engaged in human trafficking, his marriage has been voided, notwithstanding its formal validity. There can be no doubt that had she known of these activities; she would never have consented to marry him. They constitute an umdana , i.e., a compelling circumstantial presumption in favor of voiding the marriage. This is analogous to the case cited in Bava Kama 106b regarding a levirate wife whose levir is suffering from a serious skin disease. The Talmud suggests that in such circumstances, the levirate wife may claim that she is no longer bound by the levirate bond, since she would never have married her husband had she known that this situation would arise in the future; hence, her original marriage has now been voided. The reason that the Talmud rejects this claim is the adage of Resh Lakish that "women will accept defective men rather than remain unmarried." This adage is, however, inapplicable in our case, since by virtue of his criminal activities the husband's life is constantly in danger, and the couple lives in constant fear and dread. Moreover, what woman could be expected to live with such a despicable and loathsome person? There can be no doubt that she would never have knowingly consented to marriage in these circumstances and this case is a classic one for the application of the umdana principle. Now, it is true that Hatam Sofer (Teshuvot EH 82) rejected umdana as a basis for voiding a marriage, but the reason was because of the weak nature of the umdana in that case, i.e., the husband told the wife that he was rich and he turned out to be poor, and that he was a learned man but he turned out to be an ignoramus. The weakness of the umdana lies in the fact that he may very well have been rich but, in the meantime, he lost his fortune. Likewise, he was once learned but, in the meantime, he forgot his learning. At the most, the marriage in this type of case is of doubtful validity. In our case, however, the umdana is strong and powerful and free from all doubt as to the absolute unacceptability of the marriage on the part of the wife. Hence, we rule that she would never have consented to marry had she known the facts about her husband. | {
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It therefore may be said that according to numerous opinions concerning this issue, kiddushin can be invalidated by virtue of a major or a proven assessment. As opposed to some authorities who object to the implementation of the technique of major umdana , 45 Teshuvot Avodat ha-Gershuni 235; Teshuvot Beit Yitzhak 1:106; Teshuvot Nishmat Hayyim 129; Teshuvot Ohalei Aharon 2:44; Teshuvot Ahiezer 3:19; Teshuvot Heikhal Yitzhak, EH 2:25. Clearly, one of the reasons for rejection of employing the clear expectation standard as a vehicle to free a wife without a get is due to the prohibition of being a married woman. See Teshuvot Noda be-Yehudah , Mahadura Kama, EH 88, Tinyana, EH 80. we have adopted the approach of many authorities who used the mechanism of a clear expectation (major umdana ) in order to invalidate kiddushin . 46 See supra n. 43. | {
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Therefore, in the present case, there is a major umdana that a woman does not want to live with a philanderer. In any case, the kiddushin are invalidated for the reason that she did not give herself over to marriage with this in mind. This, in addition to what we said about the voiding of the kiddushin due to the husband deceiving his wife by hiding the fact that he was a pedophile – these are cases of mistaken kiddushin due to pedophilia and due to deceit and misrepresentation. | {
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7. Implementation of a Double Doubt as to the Halakhah in Matters of Biblical Law | {
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It has been established that it is possible to invalidate kiddushin by means of the technique of "mistaken kiddushin " due to two matters that had not been disclosed to the plaintiff before the kiddushin , i.e., that the husband was a pedophile and acted deceitfully and misrepresentation, and also due to a proven assessment that a wife is not prepared to marry a man who is having intimate relations with her sisters. | {
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Alternatively, in light of the fact that there are many authorities who object on principle to implementation of "mistaken kiddushin " and " umdana " as techniques for invalidating the kiddushin , the kiddushin can be invalidated through use of "double doubt as to the halakhah in matters of biblical law." | {
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One of the rules of decision-making in relation to the halakhot of doubts is that we rule strictly in relation to doubts in biblical law, and leniently in relation to doubts in rabbinic law. 47 Beitzah 3b; Yevamot 31a; Avodah Zarah 7a. Rambam argues as follows: 48 Rambam MT, Tum'at Met 9:12. | {
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It is well known that all these and other similar instances which are ruled impure, although there is a doubt involved, are rabbinic safeguards. According to biblical law, only one who has definitely contracted impurity is deemed impure. All stringencies stemming from doubt, whether with regard to ritual impurity, forbidden foods, forbidden intimate relations or the observance of the Sabbath, are only rabbinic in origin . . . | {
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The principle that under biblical law, doubtful cases are to be resolved leniently has already been stated in other rulings in Rambam's Mishneh Torah. 49 MT, Issurei Bi'ah 15:29; 16:17, Kil'ayim 10:27, Avot Ha-tum'ah 16:1. In his Teshuvot ha-Rambam, Rambam teaches us: 50 Teshuvot ha-Rambam , 310. See also Iggerot ha-Rambam, Shilat edition, 382 ff, and quoted in Maggid Mishneh, MT Shabbat 27:3. Teshuvot Beit Yosef, EH 2, citing Rif; Teshuvot Bnei Shmuel 42 in the name of Rosh; Rabbi Dovid Bonfid, Hiddushei R. David Bonfid, Pesahim 9b; Meiri, Beit ha-Behirah, Kiddushin 5b; Semag , lavin 121; Mordekhai, Yevamot 21; Teshuvot She'elat Ya'avetz 2:143; Pri Hadash YD 110; Pnei Yehoshua, Ketuvot 9a , s.v. ve-omer Ri ; Pesahim 10a, s.v. haynu shnei kupot ; Kereti u-Peleti, Beit Hasafek 110:1; Teshuvot Torat Hesed, OH 7:4; Shakh, SA YD 110:66, Sefek Sefeka 34, citing Mordekhai; Teshuvot ha-Ridvaz 4:93, citing most of the authorities. | {
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"That we rule strictly in relation to a doubt of biblical law is a rabbinical dictate and not by biblical law." | {
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On the assumption that we accept the position that we rule strictly on a biblical doubt by virtue of a rabbinic ruling, as opposed to most of the authorities, 51 Mishneh le-Melekh, MT Tum'at Tzara'at 2:1; Taz, SA YD 110:15; Knesset ha-Gedolah, EH 68; Hagahot Tur 23 ; Teshuvot Tumim Yesharim 149; Teshuvot Ra'anah 27; Teshuvot Maharhash 30, in the said case, we have relied on a string of later authorities in general, and legists of Ashkenaz and Sepharad alike, that a double doubt can be invoked in order to restore the woman to her original presumed unmarried status. 52 See supra Chapter 2, n. 23. | {
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According to Rambam and those who agree with him, the double doubt is effective because the first doubt reduces the biblical prohibition to a rabbinic prohibition, leaving the second doubt, which is a rabbinic doubt, with regard to which we practice leniency. 53 Pnei Yehoshua, Ketuvot 9a, sv. v e-omer Ri; Teshuvot Shem Aryeh, YD 2. | {
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As opposed to this posture, according to Rashba, Ran and those who hold a similar opinion that doubtful cases on a biblical level are to be resolved strictly, the double doubt is effective because the single doubt is "like a fifty percent chance", whereas the two doubts constitute an absolute majority. 54 Teshuvot ha-Rashba 1:401; Pri Hadash, SA YD 110:49; Teshuvot Maharimat, YD 2; Teshuvot Torat Hesed, OH 3:4. According to most authorities, the doubt is effective due to the principle of majority. See Teshuvot Binyan Tzion 1:14; Teshuvot Yabia Omer 7, EH 36:5). And indeed, Rabbi Hizkiya Medini notes: 55 Sdei Hemed Hashalem, Get 4, s.v. veharav | {
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"From what we have written, it emerges that when the need arises due to a situation of igun , if there is a doubt regarding disqualification, and it is accompanied by another doubt, she may be released by virtue of a double doubt." 56 According to Rashba, supra n. 54; Hiddushei ha-Rashba, Kiddushin 73a; Torat ha-Bayit, Bayit Revi'i 1) and Ran (on Rif, Kiddushin 15b; Teshuvot ha-Ran 51), ruling strictly in the case of a doubt of biblical law is mandated by biblical law. The later authorities subscribed to this view in the name of the majority of authorities. See Teshuvot Bnei Shmuel 41; Teshuvot Hasaba Kadisha 1:23; Mishneh le-Melekh, MT Gerushin 8:11; Kehunat Olam 266; Penei Yehoshua, Hullin 10b, s.v. ela ; Teshuvot Shev Ya'akov, YD 48 citing Penei Yehoshua; Beit Meir, YD 228; Teshuvot Hatam Sofer, YD 286; Teshuvot Mishkenot Ya'akov, OH 136; Yeshu'ot Ya'akov OH 17:3; Teshuvot Hikrei Lev, YD 1:118; Teshuvot Divrei Hayyim 1, OH 8. The view of Rashba and like-minded authorities, whereby strictness is mandated by biblical law in the case of a doubt of biblical law, the reason for leniency in a case of a double doubt is that one doubt involves a fifty-fifty chance, whereas two doubts constitute a majority. See Teshuvot Rashba, ibid.; Pri Hadash, YD 110:49; Teshuvot Torat Hesed me-Lublin, OH 3:4. See supra chapter 2. Grounds for invalidating kiddushin through use of a double doubt are also found in Rambam's approach ("That we rule strictly in relation to a doubt of biblical law is a rabbinic dictate") which is the view of the majority of authorities. See: Teshuvot Ridbaz 4:93; Pnei Yehoshua, Pesahim 10, s.v. hinei ; Teshuvot She'ilat Ya'avetz 2:143; Teshuvot Zikhron Yosef, YD 19; Noam Si'ah 12 (b). | {
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In the present case, the first doubt regarding invalidation of the kiddushin due to the fact that the husband is a pedophile is the dispute amongst the decisors as to whether the mechanism of mistaken kiddushin can be applied in these circumstances. The second doubt is that the arbiters disagree as to whether the technique of mistaken kiddushin can be applied regarding a husband who acted deceitfully in order to invalidate the kiddushin . The third doubt is as to whether the clear expectation that "she did not give herself in marriage with this in mind" can be invoked in a case in which the husband is a philanderer. | {
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In applying the double doubt to the present agunah , 57 See Teshuvot Yabia Omer 3 EH 18; 6 EH 3 (9 14–15), 6 (5). we presume: | {
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(1) Since all the rivers run into the sea and in effect, all the various doubts distill into one large doubt as to whether or not the marriage is a valid one, Tosafot maintain that we are confronted with a halakhic situation in which "all the factual doubts fall into one conceptual category" and, according to Tosafot, the principle of double doubt – sefek sefeika – is inapplicable in such a situation. 58 Ketuvot 9a s.v. ve'iba'iteima . See also Shakh, SA YD 110, Sefek Sefeika 11–13. Nevertheless, it has already been proven at length by the Kereti u-Peleti (Beit Safek, ad. loc.) that the principle of double doubt is applied ubiquitously both in the Talmud and the Shulhan Arukh even in this type of situation, in order to reach lenient decisions. 59 Kereti u-Peleti Beit Safek, supra n. 50 . See also Teshuvot Mahari b. Lev 3:41; PDR 21:10, 23. | {
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However, according to Shakh and Rabbi Reicher, 60 Shakh , supra n. 58, at 12; Minhat Ya'akov, Kuntres ha-Sefeikot 20. the double doubt can be implemented in the same rubric (" shem ahad" ) only if the second doubt is more lenient. 61 Teshuvot Yabia Omer 4 , OH 43:6. In the present case, the second doubt is more stringent, but several authorities are of the opinion that it is only at the biblical level that a double doubt cannot be applied in the same rubric. Under rabbinic law, however, as is the case before us, a double doubt is applicable even if they both belong to the same rubric. 62 see Teshuvot Sho'eil u-Meishiv , Mahadura Kama, 2:82; Teshuvot Ein Yitzhak 1, OH 19; 16:5; Teshuvot Teshurat Shai 1:385, end; Teshuvot Binyan Olam, YD 33; Teshuvot Maharash Engel, 2:39; Teshuvot Maharsham 1:33; Darkhei Teshuvah, YD 110:11:280. | {
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(2) An opinion that was not cited in Shulhan Arukh may not be a component of a double doubt (a sefek sefeika). 63 Teshuvot Tuv Ta'am ve-Da'at, 2nd ed., 219; Teshuvot Beit Shlomo, YD 101 ; Teshuvot Maharsham 1:7. | {
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"ref": "Rabbinic Authority V, Part 2; Rabbinic Authority; The Reality, Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\"), h) A husband who is a pedophile and a philanderer 107",
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In the present case, the three doubts that are found in the disagreements of the decisors who are not mentioned in the Shulhan Arukh, and apparently a double doubt is not effective in such circumstances. However, according to several authorities, the above rule does not pose an obstacle, and it is possible to attach to a double doubt militating for leniency another view that was either not mentioned in the Shulhan Arukh or that contradicts it. 64 Sdei Hemed Hashalem 9, Kelalei ha-Poskim 13:5; Teshuvot Yabia Omer 6, YD 7, EH 8 (18), 8, YD 6 (4); Rabbi Yitzhak Yosef, Teshuvot Ein Yitzhak 3:118–119. For understanding the divergence of opinion regarding whether one may advance an argument for a double doubt when it contradicts the ruling of the Shulhan Arukh, see supra page 50, n. 47. | {
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"ref": "Rabbinic Authority V, Part 2; Rabbinic Authority; The Reality, Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\"), h) A husband who is a pedophile and a philanderer 108",
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(3) Regarding invalidation of kiddushin on the grounds that the husband is a pedophile: there is a dispute amongst the legists as to whether the mechanism of mistaken kiddushin can be applied in such circumstances. Regarding a husband who deceitfully hid his defect, i.e. that he is a pedophile, prior to the marriage; there is a dispute amongst the decisors as to whether this would allow for recourse to the mechanism of mistaken kiddushin in order to invalidate the marriage. Furthermore, can the clear expectation that "she did not give herself in marriage with this in mind" be applied? The case in which the husband is a philanderer is a subject of dispute amongst the decisors. The common denominator of all these disputes is that the number of arbiters permitting and the number of authorities prohibiting in each dispute are never even (" shakul "). And therefore, the doubts are not evenly balanced. | {
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"ref": "Rabbinic Authority V, Part 2; Rabbinic Authority; The Reality, Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\"), h) A husband who is a pedophile and a philanderer 109",
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As opposed to some decisors who require a balanced double doubt, 65 Shakh , supra n. 58, at 33; Erekh ha-Shulhan HM 3, Kuntres Sefer ha-Zikaron, 1:52. in accordance with their approach that a Torah doubt entails Torah-mandated strictness, according to other authorities who support Rambam's approach, ruling strictly in the case of a Torah doubt is only rabbinically mandated, it is not necessary to have a balanced double doubt ( sefek sefeika ). 66 Teshuvot Torat Hesed, EH 9; Teshuvot Shemen Rokeah Tlitai, YD 3; Teshuvot Yabia Omer 4, YD 12 (14), 6, YD 2. To understand a doubt that is balanced between those who permit and those who prohibit see: Get Pashut 129:26; Yerushalayim Regional Beit Din, File no. 917387/1, 14 Kislev 5774. | {
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"ref": "Rabbinic Authority V, Part 2; Rabbinic Authority; The Reality, Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\"), h) A husband who is a pedophile and a philanderer 110",
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We accepted this approach. | {
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(4) We apply double doubt in relation to kiddushin and permit a woman to remarry in order to avoid being chained to her husband ( igun ); a fortiori when there are three doubts (as in the present case), even when there is disagreement amongst the authorities. 67 Shakh, supra n. 58, at 29 ; Teshuvot Ra'anah 27; Teshuvot Torat Hayyim of Maharhash 30; Teshuvot Yabia Omer 3, OH 28(17), 4, EH 5(11), 6, EH 6(5). | {
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"ref": "Rabbinic Authority V, Part 2; Rabbinic Authority; The Reality, Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\"), h) A husband who is a pedophile and a philanderer 112",
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8. Conclusion | {
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On the basis of the above, Mindy is permitted to marry any Jewish man, even a Kohen . 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. 68 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 in order to void a marriage in this particular case 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 "a marriage in error" ( kiddushei ta'ut ) and the clear expectation standard ( umdana de-mukhah ). | {
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I. A childless widow whose lot fell to an apostate brother-in-law: | {
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Sarah Stein v. Andrew Stein | {
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The facts of the case | {
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Sarah Stein (hereinafter: the plaintiff) and the brother of Andrew Stein (hereinafter: the defendant), Isaac Stein, married according to Orthodox Torah law on January 1, 1988. They did not have children and they adopted two boys. | {
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Approximately ten years ago, the defendant informed his brother, the husband of the plaintiff, that he converted to the religion of The Jehovah's Witnesses. We spoke to a rabbi who is a family relative and he conducted a few conversations with the defendant regarding his undergoing baptism and becoming a minister of this religion. | {
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On June 2, 2015, the brother of the defendant passed away and the family notified the defendant of his brother's demise. However, due to the dictates of his religion, he refused to participate in his brother's burial. | {
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After his brother's death, the family notified him that he is obligated to participate in the ceremony of halitzah in order that the plaintiff would be permitted to marry another Jewish person. However, due to his religious beliefs, he refused to participate in this Jewish ceremony of halitzah . | {
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After the third summons of the defendant requesting him to appear for a hearing at our beit din , we received an e-mail dated February 6, 2019, which states the following: | {
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I, Andrew Stein, became an ordained minister of Jehovah God and underwent baptism to show my loyalty and allegiance to the true God Jehovah. I took an oath disavowing my previous beliefs and promised not to follow any practices of any other religion and thusly I am not under Mosaic Law. Please respect my feelings and do not contact in this matter ( halitzah – AYW) again. | {
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It is our understanding that any person who affiliates with this religion becomes a member and a priest simultaneously via baptism. In his role as a minister, he communicates to the wider community the beliefs of his religion. | {
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We summoned the defendant three times for a hearing, but he refused to respond to the summons and therefore the deliberation regarding this matter was conducted with the plaintiff in the absence of the defendant. | {
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The issue that we will address is the halakhah regarding the tie ( zikah ) between the plaintiff who is a yevamah and a yavam who is a Jew who converted to another religion (hereinafter: an apostate- mumar ). | {
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Discussion | {
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"ref": "Rabbinic Authority V, Part 2; Rabbinic Authority; The Reality, Chapter 4; Case studies of a wife's claim for voiding a marriage and levirate marriage (\"yibum\"), i) A childless widow whose lot fell to an apostate brother in law 13",
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1. The halakhic duty of halitzah | {
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It is prohibited for a Jewish man to marry his brother's wife, 1 Vayikra 18:16, 20:21. and the execution of kiddushin (loosely translated – a marriage) under such circumstances is invalid. 2 SA EH 15:22. The notable exception to this proscription is the case of the kiddushin of a yevamah, where the brother of the husband who died without having children (a yavam – levir) is obligated to marry his widow, known as a yevamah. 3 Devarim 25:5, Tur and SA EH 156:4. If the yavam does not desire to marry the yevamah, she is prohibited from marrying another man unless the yavam fulfills the duty of halitzah . 4 Devarim 25:6–10. Halitzah entails a ceremony severing the bond between the levir and the yevamah. There is a debate among the sages of the Talmud and post-talmudic decisors whether the duty of yibum has priority over the duty of halitzah . Normative halakhah is that halitzah assumes priority over a levirate marriage primarily because the levir did not intend to marry the yevamah for the sake of performing a religious duty. 5 Mishnah Bekhorot 1:7; SA and Rema EH 165:1. Upon completing the halitzah , the widow (the yevamah ) is permitted to marry a Jewish man. | {
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The prohibition of the yevamah to marry any other man prior to the performance of the halitzah is contingent upon the notion that the duty of yibum is upon them. In other words, if there is a tie between the widow and her brother-in-law (a zikat yibum ), there is an obligation of halitzah . If not – there is no halitzah . | {
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We must address the question of whether the yavam's conversion to another religion (Jehovah's Witnesses 6 The religion has been described in the following fashion: It is a millenarian restorationist Christian denomination with non-trinitarian beliefs from mainstream Christianity. (Wikipedia). For the principles and the theology of this religion whose adherents believe in Jesus Christ and the new testament, see Robert Bowman, Jehovah's Witnesses, Grand Rapids, Michigan, 1995; Walter Martin and Norman Klann, Jehovah of the Watchtower: Minn.: MN, 1974; Ron Rhodes, Reasoning from the Scriptures with the Jehovah's Witnesses, Eugene, OR; 1993. ) via baptism which establishes him as an apostate Jew ( mumar meshumad ) severs the tie between the yavam and yevamah . | {
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2. A yavam that converted to his faith after his brother's marriage – Views of the Authorities | {
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Upon the completion of the Talmud, the majority of the Geonim who lived in the subsequent time period, including those who issued classical restatements of Halakhah such as Rabbis Hilai, Amram, Yosef b. Avitur, Natronai, Paltoi, Sherira, Hai and Shmuel b. Hofni argue that a widow who is childless and has a brother-in-law who is an apostate Jew remains an agunah for her lifetime until such time that he performs halitzah (release from levirate marriage). There is a tie between the yevamah and the yavam, she is not permitted to marry until halitzah is performed. 7 Teshuvot Geonei Mizrah u-Ma'arav 182; Teshuvot Sha'arei Tzedek 3, Sha'ar 1, Simanim 28–29; Teshuvot Geonim , Coronel ed., 96; Otzar ha-Geonim, Yevamot 1, 34–37. Subsequently, other decisors endorsed this position. 8 Teshuvot Rabbeinu Gershom Me'or ha-Golah , Edelberg ed., 48; Teshuvot Rashi, Elfenbein ed., 173; MT , Yibum va-Halitzah 1:6; Hiddushei ha-Rashba , Yevamot 22a; Hiddushei ha-Ritva , Yevamot 24a; Beit ha-Behirah, Yevamot 16b; Teshuvot Yakhin u-Boaz 2:31; Teshuvot ha-Rid 64; Teshuvot Maharil ha-Hadashot 207; Tur EH 157; Teshuvot Maharik , shoresh 85; Teshuvot Terumat ha-Deshen 223; Orhot Hayyim , 2, Yibum 5; Beit Yosef, Tur EH 157; SA EH 157:4; Levush Malkhut EH 157:4; Teshuvot Noda be-Yehudah, Mahadura Tinyana EH 150; Arukh ha-Shulhan EH 157:7. In accordance with this approach, there was no difference with regard to when the conversion transpired. As Rashi notes: | {
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And there is no difference if the husband married her prior to his conversion to the other religion or if he converted subsequently after the marriage. | {
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The emerging question is: what are the reasons for this view? Among the reasons that are mentioned in the responsa that the tie of yibum and halitzah remains intact when dealing with a Jewish brother-in-law who is an apostate are the following: | {
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1. The well-known Talmudic dictum is "a Jew, even though he sins, remains a Jew." 9 Sanhedrin 44a; Rashi, ad. locum.; Teshuvot Maharam of Rothenberg , Prague ed., 864 in the name of Geonim; Ritva , supra n. 8.; Rid , supra n. 8; Yakhin u-Boaz , supra n. 8. | {
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2. If an apostate Jew executes kiddushin – his kiddushin are valid. 10 See Rabbeinu Gershom , supra n. 8; Rid , supra n. 8; Rashi , supra n. 8.; Terumat ha-Deshen , supra n. 8; Yakhin u-Boaz , supra n. 8. | {
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While in pursuance to the above position, an apostate Jew is obligated to perform halitzah , the bond is of a rabbinic nature. The most compelling proof to this conclusion is found in responsa of Mahari Weill and Mahari Mintz which serve as a precedent for Rema's ruling that if she remarried without the performance of halitzah by the apostate Jew, she may remain with her new husband. 11 Teshuvot Maharil 54; Teshuvot Mahari Mintz 12; Rema SA EH 157:4. It is just a stringency, since ex post facto if she marries without halitzah, the marriage is valid. In other words, fundamentally ( ikar hadin ), the marriage is permissible and consequently, ex post facto we follow the fundamental stance. Similarly, Ridvaz concurs that the kiddushin of an apostate Jew is invalid on a Torah level since he is viewed as a non-Jew. Consequently, if he extended a kiddushin (marriage) offer to a woman, the marriage is invalid. 12 Teshuvot ha-Ridvaz 1:351. Cf. Teshuvot ha-Ridvaz 1:93. Other authorities agree that the yibum bond is grounded in rabbinic law. 13 Beit Yosef, Tur EH 159 in the name of Mahari Weill; Bi'ur ha-Gra, SA EH 157:8; Teshuvot Sheilat Ya'avetz 1:29; Teshuvot Meishiv Davar 4:75. | {
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A contrasting opinion was adopted by Rabbi Yehudai Gaon and Rabbi Hanoch Gaon. In accordance with their position, apostasy which was executed before the brother's marriage to the yevamah severs the yavam bond. However, if the conversion transpired after his brother's marriage, as in our case, and at the time of the marriage he was presumptively a bona fide Jew ( hezkat kashrut ), in pursuance to the above Geonim, the apostate Jew has a bond for yibum . 14 Mordekhai, Yevamot 28; Magid Mishneh , MT, Yibum va-Halitzah 1:6 in the name of R. Yehudai Gaon; Otzar ha-Geonim. Yevamot, Teshuvot 88, p. 37. Some later authorities espoused this view. 15 Teshuvot Shoeil u-Meishiv EH , Mahadura Tinyana 90; Teshuvot Maharam Schick EH 144; Teshuvot Avnei Nezer EH 2:223. | {
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Both views agree that in the situation of apostasy of the yavam after his brother's marriage, the apostate retains a bond for yibum . Based upon the foregoing, in accordance with both opinions, we cannot permit the plaintiff to marry without receiving halitzah from the defendant since his apostasy occurred approximately ten years after the plaintiff's marriage to his brother. | {
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A third view which disagrees with the other two opinions and contends that a yavam who became an apostate after the plaintiff's marriage to his brother severs the bond of yibum is memorialized in the words of Mordekhai, who writes: 16 Hagahot Mordekhai , supra n. 14 and a portion of this responsum can be found in Teshuvot Maharam of Rothenberg , Prague ed., 1022 ( halitzah case – in theory rather than in practice). | {
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It says in Ohr Zarua Katan . . . Rabbi Nahshon Gaon . . . and Gaonic responsa . . . that a yavam that was an apostate to idol worship during the marriage of his brother, and still when his brother dies remains an apostate, he is not bound to the wife of his brother and she is exempt from halitzah . . . And in the commentary of Rabbeinu Hananeil, from the moment of death she becomes subject to the levirate marriage . . . and Maharam advances a proof since on such an understanding (that she would marry an apostate Jew – AYW) she never would have married him . . . | {
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In order to prove the absence of a yibum bond in the case of a yavam who converted to another religion after his brother's marriage, Mordekhai directs us to the view of Rabbeinu Hananeil, who argues that "death creates the moment of subjection of the yevamah to the marriage." 17 See also Ohr Zarua 1:605. In the Talmud there is a controversy whether the "first marriage subjects her to levirate marriage" or "death subjects her to levirate marriage." 18 Yevamot 13b, 30b, 109a. If we adopt the former position, then if the yavam was already an apostate Jew during his brother's marriage, the yibum tie has been established. On the other hand, if we endorse the view that "death creates the yevamah's subjection to the marriage," then if the yavam converted after his brother's marriage, as in our case, the yibum bond has been severed and consequently she is permitted to remarry without receiving halitzah . | {
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According to Rava, 19 Yevamot 13b. one must subscribe to the position that "death subjects the yevamah to marriage" and we follow his view due to the fact that "the halakhah is like the latter authorities" ( hilkheta ke'batrai ) and it is known that the application of this principle of adjudication begins with Talmudic controversies from the time of Abaye and Rava and onwards. 20 Seder Tannaim and Amoraim , 10; Piskei ha-Rosh, Ketuvot 7:13; Yam shel Shlomo, Bava Kama 2:15; Yavin She'muah , Kelalim 273–274 in the name of Ra'ah, Rosh, Rif, Ba'al ha-Maor, Rav'yah, and Rashba. Cf. Yad Malakhi , Kelalim 167–168; Pahad Yitzhak , entry, " ein halakhah ke'talmid. " | {
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Mordekhai relies upon Rabbeinu Hananeil and Rabbeinu Barukh b. Shmuel who claim that "death subjects the yevamah to marriage." 21 See also, Ohr Zarua , supra n. 17; Maharam of Rothenberg , supra n. 16; Teshuvot Maharam Mintz 105; Teshuvot ha-Ridvaz 4:1143 (94); Ba'air Hetev, SA EH 157:3; Teshuvot Teshurat Shai 2; Teshuvot Mahari Enzel 47; Teshuvot Maharam of Lublin 36, 56; Teshuvot ha-Re'eim 68; Teshuvot Be'air Oshek 76; Teshuvot Nivhar mi-Kesef 61; Teshuvot Maharsham 6:191; Teshuvot Iggerot Moshe EH 1:152, 3:48; Teshuvot Dibrot Eliyahu 7:83. Consequently, even if the yavam is a Jew and a member of the covenant Jewish faith community during the time of his brother's marriage and he became an apostate after the marriage, a bond has not been established for yibum and halitzah . | {
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In his presentation, Mordekhai offers three reasons why, in our circumstances, a yavam who is an apostate does not have ties to yibum and halitzah . | {
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Firstly, yibum is dependent upon brotherhood, and an apostate is not construed as a brother. Secondly, zealots punish a woman who has sexual intercourse with an apostate. Therefore, consorting with an apostate is considered "a matter of licentiousness" ( davar she'be'ervah ), and consequently there is no bond of yibum and halitzah in such a scenario. Finally, if she had known that she would have to marry an apostate Jew, she never would have consented to the original marriage. As Rabbi Moshe Feinstein notes: 22 Teshuvot Iggerot Moshe EH 3:48. | {
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According to the rationale of Maharam [from Rothenberg] . . . even if he becomes an apostate after the kiddushin, if she had known that she would have to marry an apostate Jew she never would have consented to the original marriage. | {
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We may now formulate our conclusion that an apostate has no ties to yibum and halitzah based upon the teaching of Rabbi Aharon Lichtenstein who astutely states: 23 "Brother Daniel and the Jewish Fraternity" in 12 Judaism , Summer 1963, 260, 267, 276. | {
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If we ask, in purely descriptive terms, whether anyone born of Jewish parents is a Jew, the answer must be yes. As an epithet, the term ‘Jew' remains applicable to any individual who was ever endowed with Jewish status – even to a meshumad (apostate). . . . However, if we ask whether a meshumad has anything of a Jewish personality and character, and whether, therefore, he continues to be endowed with the personal status of a Jew, the answer is a ringing no. He remains a Jew without Jewishness. . . . His personal status as a Jew – be it for marriage or any other purpose is lost. The hallmark of Jewry, what being a Jew essentially means, is effectively erased. | {
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3. Umdana – "with this understanding she would not have married him" | {
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In contrast to kiddushei ta'ut (loosely translated: a marriage in error), where the focus is upon a major defect ( mum gadol ) that preexisted the marriage and a husband intentionally or unintentionally failed to disclose the flaw, the clear expectation (the umdana de'mukha – hereinafter: umdana ) "with this understanding she would not have married him" deals with a major defect that transpired during the marriage. For example, "if I had known that my husband would become an apostate, a criminal, or psychologically dysfunctional during the marriage, I never would have married him." These are examples of a clear expectation which under certain conditions can lead to voiding the marriage. 24 Maharam of Rothenberg , supra n. 16.; Teshuvot Beit ha-Levi 3:3; Teshuvot Hesed le-Avraham , Mahadura Tinyana, EH 55; Teshuvot Radakh , Bayit 9; Teshuvot She'eilot Moshe EH 2 ( halitzah ); Teshuvot Zikhron Yehonatan 1, YD 5; Teshuvot Avnei Hefetz 30; Teshuvot Radad (Meisels), EH 40; Teshuvot Meshivat Nefesh, EH 73, 76–77; Teshuvot Divrei Hayyim EH 3; Teshuvot Maharsham 7:65 (a wife who is psychologically dysfunctional); Teshuvot Iggerot Moshe EH 4:121 (a halitzah case accompanied with the argument of kiddushei ta'ut ); Teshuvot Har Tzvi EH 1:79, 2:133. Whether one can utilize a release from a levirate marriage ( halitzah ) judgment to conclude that one can equally void the marriage is open to debate. Eventhough a widow waiting for her deceased husband's brother to perform a release is biblically prohibited to anyone else and her status is not as stringent as the status of a married woman who is biblically prohibited to anyone else, one may nonetheless apply a halitzah ruling to a matter of marriage which entails voiding marriage. See Teshuvot Terumat ha-Deshen 250; Teshuvot Noda be-Yehudah , Mahadura Tinyana EH 66 (Cf. Mahadura Kama OH 21); Teshuvot Har Tzvi EH 1:95, 99. See further this writer's Rabbinic Authority , vol. 3, 154, n. 45. Based upon the foregoing, therefore we have cited the rulings of Maharam and She'eilot Moshe which deal with levirate marriage and advance the argument that a clear expectation ( umdana de'mukha ) may serve as a ground to permit remarriage for the wife without the brother-in-law performing a release and these judgments may be equally applied to any marriage as a means to void the marriage. See the ruling of Rabbi Y.S. Nathanson argues that if in a case of levirate marriage one can free without halitzah , a fortfiori one may in a case of voiding a marriage due to an error in the marriage ( kiddushei ta'ut ). See Teshuvot Sho'eil u-Meishiv , Mahadura Tlita'a 61. For our conceptual distinction between kiddushei ta'ut and umdana , see Teshuvot Ohr Sameah 2:29; She'eilot Moshe , op. cit.; Zikhron Yehonatan , op. cit. . It is important to stress that this umdana has been employed in the responsa both regarding kiddushei ta'ut as well as emerging after the onset of the kiddushin . In other words, concerning kiddushei ta'ut , once the major latent defect has been identified, some legists will employ the umdana by stating, "had she known prior to the marriage about this major defect she never would have married him." On the other hand, if the inappropriate behavior or mum , flaw only began after the onset of the marriage and did not preexist prior to the marriage, there may be grounds to employ an umdana where she would (for example) exclaim, "had I known that he would become mentally dysfunctional during the marriage I never would have married him." For a discussion of these two types of umdana , see Teshuvot Zikhron Yehonatan , vol. 1, YD 5 (17). An inquiry was submitted to Maharam of Rothenberg regarding an apostate yavam who refuses to perform halitzah and he teaches us the following: 25 Maharam of Rothenberg , supra n. 16 which was subsequently cited by Maharam Mintz , supra n. 21, Teshuvot Maharil 205 and Mordekhai , supra n. 14. | {
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Concerning an apostate we can say this, since we are witnesses that a woman is not ready to undergo levirate marriage with him . . . with such an understanding she didn't marry him (the first brother) originally being that he was an apostate, and it is to be construed as if she conditioned (the marriage – AYW) that she would not undergo a levirate marriage with him. | {
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Maharam establishes that there exists a clear expectation that the yevamah does not want to marry an apostate Jew. 26 See also Teshuvot ha-Ran 43; Teshuvot Hatam Sofer EH 2:73–74; Teshuvot Har Tzvi EH 1:79. Compare Rabbi Dovid Korfo ( Teshuvot ha-Radakh , Bayit 9, Heder 11) who writes: "However, regarding a woman whose husband has become an apostate, since he engages in conjugal relations and he satisfied her desire and personal need, perhaps she wants him, even though he is proscribed from having intimate relations with her due to the fact that her paramount concern is satiating her body and isn't afraid of the prohibition . . .". In other words, according to Radakh, she enjoys living with an apostate because he satisfies her desire through the engagement in conjugal relations. Furthermore, Maharam contends that there is an implied condition at the time of the establishment of the marriage that she would not undergo such a levirate marriage. 27 Numerous decisors mandate that a condition must comply with the halakhot of conditions ( mishpetei ha-tena'im ) in matters of marriage and divorce due to the fact that we are dealing with a matter of prohibition (i.e. the prohibition of being a married woman). See Teshuvot ha-Rif 31; Rashbam, Bava Batra 137b, s.v. ve'im lav; Mordekhai, Succah 758. Nevertheless, in certain circumstances Halakhah will validate an implied condition. See Tosafot Ketuvot 97a, s.v. zavin; Tosafot Gittin 75a, s.v. le'afukei; Iggerot Moshe EH 4:121 (end); B. Lifshitz, Promise: Obligation and Acquisition in Jewish Law (Hebrew), Jerusalem: 1988, 138, n. 106. In other words, despite the fact that we are dealing with the prohibition of "a married woman", nonetheless, we may invoke here in accordance to Rabbi Rozin, the mechanism of the clear expectation and void the marriage based upon an implied condition of marriage. On the other hand, voiding a marriage based upon "an error in the marriage" ( kiddushei ta'ut ) is grounded upon the notion that Halakhah mandates a meeting of the minds ( gemirat da'at ) which is consummated with the act of kiddushin which is executed by an act of undertaking an obligation (a kinyan ). See Hazon Ish HM 22; Rabbi Y. Abramsky, Dinei Mamonot , Bnei Brak, 5729. The emergence of an error in the kiddushin due to the husband's failure to disclose a major flaw to his prospective wife prior to the marriage effectively prevents "a meeting of the minds". See Hazon Ish, EH 56:9, 77:6. For a contemporary adoption of this approach and the application of the concept of a sale in error to "an error in marriage" see Moreshet Moshe , Bava Metzia 60:4 and Teshuvot Beriti Shalom 5:15. Cf. Rabbi Akiva Eiger who contends that a sale in error ( mekah ta'ut ) is grounded in the violation of a condition ( tenai ) rather than intrinsically linked to the performance of undertaking a duty. See Teshuvot Rabbi Akiva Eiger 2:51, 106. To state it differently, despite the fact that we are dealing with the prohibition of "a married woman", nonetheless, in accordance to Rabbi Eiger we may invoke here, the mechanism of "an error in marriage" and void the marriage based upon an implied condition (rather than an explicit condition formulated in pursuance with the halakhot of conditions) of marriage. For other arbiters who subscribe to Rabbi Akiva Eiger's view, see supra p. 142, n. 37. | {
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One must conclude that this clear expectation can only be applied in a case where a yevamah befell a yavam who converted to another religion prior to his brother's wedding. However, if the apostasy transpired after the brother's wedding, it is illogical to assume that the wife had this clear expectation at the time of the wedding. Clearly, the prospects that the yavam would become an apostate and that her husband would die without siring offspring are much too remote to imagine. Similarly, Rabbi Feinstein argues: 28 Teshuvot Iggerot Moshe EH 3:44. Cf. Iggerot Moshe , supra n. 22. | {
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We are not concerned at all that every man who is presumptively proper ( hezkat kashrut ) would possibly convert to another religion. | {
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On the other hand, if the yavam was an apostate at the time of the wedding, there are clear prospects that the woman was conscious of this possibility that she may fall to yibum . Therefore, one can contend that there was an implied condition of the woman at the time of the marriage and consequently, for the apostate yavam there was no bond for yibum and halitzah . | {
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Nonetheless, though Maharam's responsum focuses upon a case where the apostasy happened prior to the apostate's brother's wedding, one should not conclude that his ruling is limited to this situation. As Maharam Mintz duly observes: 29 Maharam Mintz , supra n. 21. | {
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We have not found that Maharam distinguished explicitly between when he was an apostate during the marriage or afterwards; rather, he permitted invoking the expectation under every circumstance even a priori . | {
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Similarly, Rabbi Eliyahu Mizrahi insightfully teaches us: 30 Teshuvot ha-Re'eim 68. | {
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It is not logical to claim that only if the apostasy transpired prior to her marriage to his brother that there was an understanding as if it was an explicit condition that she would undertake a levirate marriage without halitzah, and that if the apostasy happened after the marriage to his brother that at the time of the marriage she didn't assume that apostasy would occur without halitzah . If this would be correct, then the Talmud should have asked: that a childless widow whose lot fell to a levir afflicted with skin boils during the time that she was married to his brother ought to be released without halitzah , one should have said on this understanding she never consented to marry him. | {
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As such, in a situation of an apostate yavam , one should not differentiate between whether his conversion occurred before or after the marriage. Even though Maharam refrained from disagreeing with the words of Rashi who opines that a yevamah who fell to an apostate has to undergo yibum and halitzah , in theory rather than practice, he sanctioned the y avam of an apostate to remarry without halitzah. 31 For reliance upon rulings which are in theory rather than in practice, see Sdei Hemed , Kelalei ha-Poskim 16 (47); Teshuvot Yabia Omer 3, EH 8. | {
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In short, even a woman who claims, "had I known that my brother-in-law would become an apostate I wouldn't have married my husband," may serve as grounds to void a marriage. | {
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A precondition for implementing this umdana is that the wife is Torah observant. 32 Teshuvot be-Tzeil ha-Hokhmah 4:91; Teshuvot Ohel Moshe 123; Teshuvot Divrei Hayyim 2:81; Nahalat Tzvi 2, 229; Teshuvot Helkat Ya'akov 85; Teshuvot Iggerot Moshe EH 4:83. Upon verification, we determined that the plaintiff observed Shabbat, dietary laws ( kashrut ) and halakhot dealing with family purity. | {
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Though there are authorities who reject the deployment of the umdana as a means to void a marriage, 33 Teshuvot Avodat Gershuni 235; Teshuvot Beit Yitzhak 1:106; Teshuvot Nishmat Hayyim 129; Teshuvot Noda be-Yehudah , Mahadura Kama, EH 85, Mahadura Tinyana, EH 80; Teshuvot Oholei Aharon 2:44; Teshuvot Ahiezer 3:19; Teshuvot Heikhal Yitzhak EH 2:25. as we noted earlier in our decision, we adopted the approach of decisors who utilize umdana as a vehicle to void a marriage. | {
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4. Double doubt with a yevamah who was befallen to an apostate yavam | {
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One of the rules of decision-making in relation to the halakhot of doubts is that we rule strictly in relation to biblical doubts, and leniently in relation to rabbinic doubts. 34 Beitzah 3b; Yevamot 31a; Avodah Zarah 7a. Rambam rules as follows: 35 MT, Tum'at Met 9:12. | {
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It is well known that all these and other similar instances which are ruled impure, although there is a doubt involved, are rabbinic safeguards. According to biblical law, only one who has definitely contracted impurity is deemed impure. All stringencies stemming from doubt, whether with regard to ritual impurity, forbidden foods, forbidden intimate relations or the observance of the Sabbath, are only rabbinic in origin . . . | {
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The principle that under biblical law, doubtful cases are to be resolved leniently has already been stated in other rulings in the Mishneh Torah. 36 Issurei Bi'ah 15:29; 16:17; Kilayim 10:27; Avot Ha-tum'ah 16:1. In his responsa , Rambam writes: 37 Teshuvot ha-Rambam 310. This responsa is also cited in Iggerot ha-Rambam, Shilat ed., 382 ff, and quoted in Magid Mishneh, MT Shabbat 27:3. | {
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That we rule strictly in relation to a doubt by biblical law is a rabbinical dictate and not by biblical law. | {
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There are many authorities which cite Rambam's opinion and/or subscribe to his position. 38 Rif and Rosh, Kiddushin 5b. See Teshuvot Beit Yosef, EH 2, citing Rif and Bnei Shmuel in the name of Rosh; R. David Bonfid, Rambam's pupil, Hiddushei R. David Bonfid, Pesahim 9b; Meiri, Beit ha-Behirah, Kiddushin 5b; Semag, Negative Commandments 121; Mordekhai , Yevamot 21; Teshuvot She'elat Ya'avetz 2:143; Pri Hadash 110; Pnei Yehoshua, Ketuvot 9a , s.v. ve-omer Ri ; Pesahim 10a, s.v. haynu shnei kupot ; Kereti u-Peleti, Beit ha-Safek 110:1; Teshuvot Torat Hesed, OH 7:4; Shakh , SA YD 110:66, Halakhot of Sefeik Sefeika 34 in the name of Mordekhai; Teshuvot Ridbaz 4:93, in the name of most of the authorities. | {
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Subsets and Splits